May 01, 2014

The aquaculture permitting process in federal waters

Kelly B. Boden and Karen A. Mignone

With increased demand for seafood in the United States and concern regarding overfishing of wild fish stocks, the United States is looking to new methods of aquaculture to provide a sustainable source of seafood. Aquaculture is defined as the propagation and rearing of aquatic organisms for any commercial, recreational, or public purpose or—stated simply—aquaculture is seafood farming. The majority of aquaculture facilities in the United States are located in coastal waters, where state and local agencies oversee the permitting and regulation. Recently there has been increased opposition to inshore and near-shore fish farms, forcing those interested in aquaculture to consider locating facilities further offshore. The historic absence of proposed projects in federal waters has largely been a result of the complex and difficult federal permitting process.

However, a recent policy shift by the federal government, specifically the National Oceanic and Atmospheric Administration (NOAA), indicates that federal waters of the U.S. Exclusive Economic Zone (EEZ) may now be ripe for aquaculture development. In 2011, NOAA released a policy statement on marine aquaculture indicating its willingness and desire to foster aquaculture in federal waters by helping coordinate the complex permitting processes. See National Oceanic and Atmospheric Administration, Marine Aquaculture Policy.

The agency primarily responsible for permitting aquaculture facilities in federal waters is the U.S. Army Corps of Engineers (Corps). The Rivers and Harbors Act (RHA) grants the Corps the power to issue permits for obstructions to “the navigable capacity of any of the waters of the United States.” 33 U.S.C. § 403. Therefore, anyone planning to establish and operate an aquaculture facility in federal waters must obtain a permit pursuant to section 10 of the RHA. The section 10 permitting process requires the Corps to consult with the National Marine Fisheries Services (NMFS) regarding the project’s impact on habitat declared as essential under the Magnuson-Stevens Fishery Conservation and Management Act (Essential Fish Habitat) and species listed as endangered under the Endangered Species Act. NMFS will analyze a proponent’s site plan to determine potential impacts on Essential Fish Habitat. Additionally, NMFS will determine whether the site is located within the range of an endangered species and, if so, whether the project will adversely affect the identified species. The Corps will also review the site plans in accordance with the National Historic Preservation Act.

An aquaculture facility may also require permits from the Corps under the Clean Water Act (CWA). The CWA governs the discharge of materials in the “navigable waters” of the United States. See 33 U.S.C. § 1362(7). “Navigable waters” includes the EEZ, which extends 200 nautical miles from the coastal baseline. Two separate permits may be required under the CWA. If the project will involve the discharge of dredged or fill material, as defined by the act, the developer will need to obtain a section 404 permit. 33 U.S.C. § 1344(a). If construction or operation of the facility involves substantial disruption of the ocean floor, then the project will likely require a section 404 permit.

The CWA may also require the developer to obtain a National Pollutant Discharge Elimination System permit from the U.S. Environmental Protection Agency (EPA), which allows a party to discharge certain pollutants from a “point source.” Whether such a permit will be required depends on the design of the project, whether the byproducts of the aquaculture facility are considered pollutants, and whether the facility is considered a “point source” under the CWA. An operator will also likely need to obtain a permit from the U.S. Coast Guard to maintain a Private Aid to Navigation to mark the location of the facility.

Finally, an abutting state may review a Corps’ section 10 RHA permit for consistency with the state’s coastal zone management plans pursuant to the Coastal Zone Management Act. This essentially gives states veto power over the issuance of such a permit. Therefore, in order to ensure that a state will not veto the issuance of the section 10 permit, the operator must design the facility so that it is consistent with the coastal zone management plan of adjacent states.

Despite this relatively complex permitting process, at least two prospective aquaculture facility operators have filed applications with the Corps for a section 10 permit. The applicants are both seeking to develop an aquaculture facility for mussels off the coast of Massachusetts. The applications are currently under review.

In sum, while the permitting process for an aquaculture facility in federal waters is complex, it is possible. The federal agencies responsible for issuing permits for aquaculture facilities in federal waters have indicated a willingness to help applicants through the process. With proper guidance, a solid design plan, diligent planning, and communication with the Corps, EPA, NMFS, and the Coast Guard, aquaculture facilities may soon appear in federal waters. 

Kelly B. Boden and Karen A. Mignone

Kelly B. Boden and Karen A. Mignone are partners at Verrill Dana LLP in Portland, Maine, and Stamford, Connecticut, respectively. The authors would like to thank Colin Hay for his assistance in preparing this article.