To explore the gaps within the treatment of aquaculture as a form of agricultural production and the current efforts to address this divide, this article first examines aquaculture generally (with a specific focus on Maine’s sector), then provides a very brief overview of the current policy framework, and concludes with a summary of the SHELLS Act and its potential impacts. Overall, there is a need to provide more focused policy attention to this longstanding and growing economic sector, specifically within the USDA’s auspices, to ensure that these farmers have the necessary tools to continue producing their commodities to meet growing demand.
Understanding Aquaculture as Agriculture
To provide a general definition, aquaculture comprises the “breeding, rearing, and harvesting of fish, shellfish, algae and other organisms in all types of water environments.” See Nat’l Ocean Serv., What Is Aquaculture?, noaa.gov (2024). There are two primary forms of water-based aquaculture: (1) marine (i.e., ocean-based) and (2) freshwater. When this article refers to aquaculture, it is referring to marine aquaculture unless specifically noted. Additionally, there are land-based operations that produce seafood products in above-ground artificial ponds or enclosed structures. Nationally, aquaculture of all forms consists of approximately 3,000 facilities with economic output of around $1.5 billion in 2018. Farm Bill Primer: USDA Support for Aquaculture Operations, Cong. Res. Serv.: In Focus (Nov. 17, 2023).
Aquaculture has long been an important component of the American food supply and overall culinary history. Oyster production, in particular, has a deep cultural resonance in the eastern United States, with millions of oysters being consumed by residents of New York City throughout the late 19th and early 20th centuries. First Nations relied on oysters far earlier, as evidenced by oyster shell middens discovered at locations such as the Whaleback site in Maine (estimated to have been formed over 1000 years ago). See, e.g., Coastal Rivers Conservation Trust, Whaleback Shell Midden State Historic Site, coastalrivers.org (2024). Efforts to plant oysters, rather than rely on natural beds, occurred as early as the 18th century at Plymouth Colony in Massachusetts. See Randy Lackovic, A History of Oysters in Maine (1600s–1970s) (Mar. 2019). Oyster production, as well as other aquacultural production, represents an important food pathway to this day across the eastern seaboard and beyond.
Maine is a good example of a state where this legacy has large resonance and a particularly strong impact across a variety of sectors. Maritime industries are the heritage of Maine—the state flag boasts a farmer and a sailor, essentially a symbolic symbiosis of two of the heritage industries of Maine that, working together, actually comprise aquaculture. In Maine, oyster production is a significant component of the state’s agricultural economy. In the 1970s, several Maine companies began experimenting with expanded oyster aquaculture, which has grown into the sector that we are largely familiar with today. These efforts augmented those made by state and university scientists to promote this field and to expand the area in which oyster production could occur.
Today, Maine has over 150 licensed oyster farms, which in 2023 produced more than three million pounds of oysters with an estimated value of $8.3 million. Tim Cebula, It’s Peak Time to Start Slurping from Maine’s Abundant Oyster Farms, Portland Press Herald, Oct. 22, 2023. Maine is currently experiencing a boom in its blue economy as relatively new “oyster farms continue to proliferate along the state’s coast.” Id. Just as conventional terrestrial agriculture has developed diversified revenue streams from agritourism in the form of farm stays, glamping, winery tours, and cheese festivals, aquaculture also has moved to take advantage of consumer interest. For example, the Maine aquaculture industry is celebrated with Maine Seaweed Week and the Maine Oyster Festival. There is even a Maine Oyster Trail, organized by the Maine Aquaculture Association and promoted by the state’s Office of Tourism to draw visitors’ attention to this sector and provide additional economic support for oyster producers. Maine is also able to leverage its brand—which helps the state potentially draw a market premium for Maine-produced seafood products, from seaweed harvested at the surface, to mussels grown on rope, to clams dug out of the bottom—which provides further support for this economic sector.
While Maine’s aquaculture industry has experienced growth, more could be done to support production. As discussed earlier, focused policy attention on this sector, as a form of agriculture production, is often lacking, and while Maine’s producers have benefitted from federal funding, this funding is year-to-year and not part of an overall focused strategy to promote the sector.
In addition to the growth of the sector, there are also some unique factors related to the production of these bivalves that require greater study. Much like how a wine can be defined by its terroir, oysters can be described by their merroir, or distinctive marine flavor profile, which allows producers to market the place-based nature of their products and benefit from the uniqueness of their products and their geography. There is also a seasonality to aquaculture, in particular shellfish farming. “In the spring and summer, oysters are busy eating and growing. But as temperatures start to drop in September, they put their energy into storing glycogen . . . so they can survive the winter.” See Me. Dep’t of Econ. & Cmty. Dev., Land Based Aquaculture, maine.gov (2024). As the end of summer and early fall mark the harvest season in fields, so too do those months mark the traditional time to harvest from ocean farms. This seasonality impacts the cashflow of some types of aquaculture operations and the availability of their products within the marketplace. “Aquaculture is a highly efficient way to produce protein as it provides efficient conversion of feed into edible meat, takes up little space, imposes a low greenhouse gas footprint,” and uses little freshwater. Id. Producers are also feeling the impacts of climate change and changing weather patterns—such as the flooding events that buffeted coastal Maine in early 2024—which are presenting unprecedented challenges to this iconic sector. While being impacted by a changing climate, aquaculture also could play a part in addressing the need to produce food with fewer environmental impacts.
Understanding Aquaculture’s Current Federal Policy Framework
Although federal policy work in the aquaculture space is limited relative to its agricultural counterparts, there are several federal agencies at work in this area, including USDA, National Oceanic and Atmospheric Administration (NOAA), and others. It is also worth noting that there are a variety of state and local regulations that impact this sector (and developing model laws to streamline these regulatory schemes) that also could benefit this group of producers but are beyond the scope of this article.
There is a recognition within USDA of the importance of aquaculture and the need to devote resources to ocean farming. However, there are nearly 20 offices within USDA that share responsibility for this sector—demonstrating the lack of a cohesive or unified approach even within one federal agency. Similarly, the most recent Farm Bill (the 2018 version) expressly mentions aquaculture in a number of places, but not in a terribly coordinated fashion, leaving producers to navigate through the various parties responsible for policy in this area.
In 2020, USDA’s Research, Education, and Economics mission area (and the USDA Working Group on Aquaculture) hosted a colloquium for entities with connection to the aquaculture industry. The colloquium resulted in the production of a white paper focused on how to improve the USDA’s interaction with these farmers. Peggy Biga et al., Aquaculture Is Agriculture Colloquium: USDA’s Role in Supporting Farmers of Fish, Shellfish, and Aquatic Plants, USDA (2021). This paper summarized the various points raised by participants, with a lens to help guide future policy directions, such as investments and research objectives. The interesting takeaway from the listening sessions and meetings is that “one overarching request [of participants] was for USDA to review all agricultural support programs and ensure eligibility for aquatic farmers of fish, shellfish, and seaweeds.” Id. at 1 (emphasis in original). Relatedly, in the view of participants, “[t]he greatest constraints to the growth of U.S. aquaculture have been the inappropriate application of a regulatory environment designed for terrestrial agriculture and the lack of a comprehensive economic development plan.” Id. at 2.
The USDA is, however, making some efforts through its various agencies. The Agricultural Research Service, for example, has a national program on aquaculture housed under its Animal Production and Protection program—designed to promote research into this type of production. USDA, ARS Nat’l Program 106: Aquaculture Action Plan 2020–2024. The National Institute of Food and Agriculture has an Emphasis Area Program on aquaculture, which is designed to support funding of scientific and technology transfer goals to support development of a globally competitive U.S. aquaculture industry. The Animal and Plant Health Inspection Service also biennially updates its National Aquaculture Health Plan and Standards that encompass disease reporting, biosecurity, and testing to ensure the health of the nation’s aquacultural products. USDA, National Aquaculture Health Plan & Standards: 2021–2023.
In contrast to USDA, the NOAA Fisheries Division already has a dedicated Aquaculture Office, which prioritizes this economic activity—including promoting scientific research, assisting with permitting, and investing in facilities under its jurisdiction. NOAA has various regulatory authorities that apply to aquaculture, including the Magnuson-Stevens Fishery Conservation and Management Act within federal waters; and NOAA is involved in issuing permits related to operations within marine sanctuaries and dealing with interactions with protected species. NOAA also serves as a co-chair of the Interagency Subcommittee on Aquaculture—which attempts to align efforts to promote aquaculture across federal departments and agencies.
Beyond USDA and NOAA, other federal agencies also are involved in the regulatory space and the development of policies that can promote aquaculture. See Subcomm. on Aquaculture (SCA), Federal Agency Aquaculture Profile Series: Regulatory Agencies, ars.usda.gov/sca (last visited Sept. 19, 2024). Two notable agencies are the Environmental Protection Agency (EPA) and the Food and Drug Administration (FDA).
Under EPA’s regulatory framework, Section 403 of the Clean Water Act requires EPA or an authorized state/territory to conduct assessments to ensure that no National Pollutant Discharge Elimination Permit is issued that will cause unreasonable degradation of the marine environment (which helps to protect both existing and startup aquaculture facilities as water quality and health are imperative to facilities’ abilities to operate). See EPA, Federal Agency Aquaculture Profile Series: EPA Regulations Affecting Aquaculture Operations, July 2018.
FDA has jurisdiction over the food safety of aquaculture-produced seafood. Interestingly, its website, unlike those of other agencies, is primarily for the use of the general public as aquaculture consumers. It does not provide industry-specific resources other than its own Good Aquaculture Practices (which are designed to ensure facilities are producing safe food for consumers). The FDA also provides some support to ensuring that the use of medicine to treat farmed seafood is done safely and responsibly.
Interagency Coordination
Given the range of federal agencies with responsibility over aquaculture, some degree of coordination is necessary. The current approach relies on the SCA, which acts as a hub for aquaculture efforts across the federal government: USDA, NOAA, EPA, FDA, and Department of Defense are members. As its website attests, “[t]he SCA serves as the Federal interagency coordinating group to increase the overall effectiveness and productivity of Federal aquaculture research, regulation, technology transfer, and assistance programs.” SCA, About the Subcommittee on Aquaculture, usda.gov (2024). The SCA is itself a subcommittee of the Environment Committee of the National Science and Technology Council, housed in the Executive Office of the President.
In sum, while many agencies and programs support aquaculture, these programs are scattered across the federal government. Additionally, the agency whose primary focus is on the promotion of farming (USDA) is less focused and targeted on promoting this sector than several other agencies (notably, NOAA). Adding resources and attention to this sector as a producer of food makes logical policy sense to ensure the sector’s continued growth and support for people and the planet.
The Need to Classify Aquaculture as Agriculture
Given the emphasis being placed on aquaculture in the regulatory space and as a method of food production, it would make sense to more officially recognize aquaculture as a form of agriculture. Turning to the SHELLS Act, its passage would have significant advantages over the existing structure of supports within USDA for several significant reasons.
First, this Act would establish a programmatic Office of Aquaculture within the USDA—which would streamline efforts and ensure that there is staff solely focused on this sector within the Department. This would put the USDA on equal footing with NOAA, which has its own Office of Aquaculture. Making this point of connection easier to identify and access administratively would likely help aquaculture farmers gain understanding and connection with USDA staff, allowing for greater benefit and access to the funding, research, and technical expertise of the agency. It could also better position aquaculture farmers for accessing USDA programs—both technical assistance and funding—given the increased prominence of aquaculture within the Department’s overall ambit. Other legislation also has been advanced recently, specifically the Supporting Equity for Aquaculture and Seafood (SEAS) Act, which would require USDA to provide the same consideration to ocean-based farmers as land-based farmers in making funding decisions and to look at developing a crop insurance product to cover the sector. See Nathan Strout, US Lawmakers Want to Make Sure That Aquaculture Gets Equal Treatment by USDA, Seafood Source (May 21, 2024).
Second, this would provide a dedicated funding stream to support aquaculture through the Farm Bill. The SHELLS Act is proposed to be funded at $25 million per year over the life of the legislation. Having a dedicated funding stream as opposed to relying on annual appropriations to support this work would allow the agency to have a longer-term plan that is more economically sustainable and related to the promotion of this sector, which would yield material benefits.
Third, with not only its potential to leverage the resources of the federal Farm Bill, but also promotion and implementation of best practices, the SHELLS Act could help improve aquaculture operations. States that want to more directly incentivize aquaculture but have not yet done so could turn to the USDA’s best management practices and also benefit more directly from the research being done within the agency. This also would open up the door to more financial resources for aquaculture farmers through the insurance and purchasing programs that already exist at USDA and make those programs expressly available for aquaculture farmers.
Fourth, the text of the SHELLS Act is particularly interesting in that it expressly seeks to benefit from Indigenous and traditional ecological knowledge related to the production of these crops. Given the longstanding experience and knowledge of tribal entities in this work, accessing this knowledge base could help ensure that a longer-term ethic of stewardship exists over these resources and that the programs of the USDA are also available to tribal producers on a more equal footing.
Fifth, the SHELLS Act essentially institutionalizes the process that the 2020 colloquium set forth to provide producer feedback into how to better serve this constituency through the USDA’s programming. The SHELLS Act would establish an Advisory Committee for the USDA’s Office of Aquaculture on policy, barriers to entry, and implementation of the Office’s policies. This committee would consist of producers, tribal representatives, scientists, residents from coastal and working waterfront communities, and others, and would be required to meet at least three times each year. Codifying this advisory committee would ensure that there is a consistent line of communication between USDA policymakers and the regulated communities to ensure that the Office’s efforts are having their intended impacts.
Increasing the Role for USDA in Supporting Aquaculture
In sum, there is a growing sense and need to recognize that aquaculture is a form of agricultural production that merits greater policy attention and support within the USDA. The USDA has a long tradition of providing support, both technical and financial, to land-based farmers in recognition of the importance of this sector to our collective existence, but this does not mean that this assistance and support should not also be extended to aquacultural producers on a comparatively equal footing. While USDA for several decades has provided some support and assistance to the aquacultural sector, more could—and should—be done. The SHELLS Act could be an important step in ensuring that ocean farmers are able to benefit from USDA’s support and that this category of farmers is able to expand and continue to produce their products—which have long been important food sources and will likely be of even greater importance in the coming decades.
