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

• Gulf Aquaculture Permit (GAP) is required to deploy and operate an offshore facility in Federal waters and sell allowable aquaculture species.
• Eligibility limited to U.S. citizens and permanent residents. GAPs are transferable under certain conditions (e.g., site remains the same).
• Dealer permit is required to receive cultured animals.
• Cultured animals must first be landed at a U.S. port.
• Any vessel, aircraft, or vehicle authorized for use in operations must have a copy of the facility’s aquaculture permit onboard.

Application and operational requirements

• Description of aquaculture systems and equipment, GPS coordinates, documentation of an assurance bond, emergency disaster plan, certification that broodstock were harvested from Federal waters of the Gulf, certification that no genetically engineered or transgenic species used, documentation that broodstock are marked or tagged at the hatchery, and certification that cultured animals are free of World Organization for Animal Health and National Aquatic Animal Health Plan (NAAHP) reportable pathogens prior to stocking.
• Gear stowage and monitoring requirements.
• Must comply with regulations of other Federal agencies, e.g., drugs, biologics requirements of United States Department of Agriculture, Food and Drug Administration, Environmental Protection Agency.

Permit duration, species and systems

• GAPs are effective for 10 years with 5-year renewals.
• Only species managed by the Council, except for shrimp and corals (e.g., coastal migratory pelagics, red drum, jacks).
• Applicants must provide documentation sufficient to evaluate a system's ability to withstand physical stresses associated with storm events (e.g., engineering analysis).

Siting requirements and conditions

• Systems prohibited in Marine Protected Areas and Marine Reserves, Habitat Areas of Particular Concern, Special Management Zones, permitted artificial reef areas, and coral reef areas under Council’s jurisdiction.
• Submit a baseline environmental survey as part of the GAP application package (e.g., acoustic survey, hydrographic measurements).
• Site must be twice as large as area encompassed by systems to allow for fallowing.
• Individual aquaculture facilities must be at least 1.6 nautical miles apart.
• Site may be denied if proposed system poses significant environmental risks or would result in user conflicts.

Restricted access zones

• Restricted access zone must be established for each facility.
• Zone will correspond to the coordinates listed on the approved United States Army Corps of Engineers Section 10 permit.
• No fishing may occur in the restricted access zone and no fishing vessels may operate in or transit through unless they possess a copy of that facility’s aquaculture permit onboard.
• Zone must be marked at each corner with a floating device (e.g., buoy).

Recordkeeping and reporting

• Recordkeeping and reporting requirements address escapement, entanglements and interactions with marine species and migratory birds, pathogens and disease, broodstock harvest, and law enforcement requirements. For example, Permittees must notify NOAA Fisheries via telephone or web-based form within 24 hours of discovery of a major escapement event, entanglement or interaction with marine mammals, endangered species, migratory birds, or findings of OIE or NAAHP reportable pathogens.
• Maintain monitoring reports and sales records for the most recent three years.

Management reference points and framework procedures

• Maximum sustainable yield (MSY) and optimum yield (OY) are set at 64 million pounds.
• Measures that could be adjusted through framework procedures: adjustments to MSY and OY, application and operational requirements/restrictions, siting and system requirements, as well as recordkeeping and reporting requirements.

Establishment of an interagency work group

• A work group within an interagency Regulatory Task Force was established in 2014 with the goal of creating a coordinated Federal permitting process for the Gulf, aligning permitting and authorization processes to be concurrent (rather than consecutive) when possible and reducing regulatory redundancies.
• The work group includes all Federal permitting and authorizing agencies involved in aquaculture (i.e., NOAA Fisheries, United States Army Corps of Engineers, Environmental Protection Agency, Bureau of Ocean Energy Management, Bureau of Safety and Environmental Enforcement, Fish and Wildlife Service, Coast Guard, Department of Agriculture, NOAA Fisheries Southeast Region and Office of Aquaculture Staff).
• The work group developed a set of deliverables to implement a coordinated regulatory framework for the Gulf:
• Permit Applicant Guide – Outlines Federal permitting and authorization requirements.
• Pre-Application Meeting Checklist – Preliminary step prior to completing an application, meant to identify potential issues (e.g., site selection).
• Interagency MOU – Outlines agency responsibilities in Federal waters.
• Joint Guidance documents such as the Baseline Environmental Survey – Includes guidance on how to comply with NOAA Fisheries and EPA requirements.

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 II: Aligning the permitting processes