Executive Order Could Impact Coastal Fisheries, Habitats: Part II

Open-water aquaculture

Aquaculture

Read the first installment of this two-part series, which covered International Fisheries, International Trade, and Commercial Fishing Regulations.

President Trump’s “Executive Order on Promoting American Seafood Competitiveness and Economic Growth” (Executive Order) touched on a number of seafood-related topics, but the greatest part of the document was focused on offshore aquaculture.

It’s easy to understand why the president might believe that such Executive Order was needed. Although various states have been regulating aquaculture in their own waters for many years, there is no federal law governing the permitting and/or regulation of aquaculture in the nation’s exclusive economic zone (EEZ), which generally includes marine waters between 3 and 200 miles from shore.

May NMFS regulate offshore aquaculture?

In 2016, the National Marine Fisheries Service (NMFS) attempted to fill that void, issuing regulations for permitting and managing aquaculture operations the EEZ within of the Gulf of Mexico. Such regulations were challenged in Gulf Fishermen’s Association v. National Marine Fisheries Service, a legal action brought by a coalition of conservation, commercial fishing, recreational fishing and food-safety groups in a federal district court in Louisiana. The plaintiffs argued that NMFS had no statutory authority to issue such regulations, countering NMFS’ claim that the Magnuson-Stevens Fishery Conservation and Management Act’s (Magnuson-Stevens) definition of “fishing,” which included the “harvest” of fish, granted NMFS the authority to regulate aquaculture.

On September 25, 2018, the trial court issued its decision. It agreed with the plaintiffs, finding that the purpose of Magnuson-Stevens was to conserve natural resources, not to regulate aquaculture, and that any reference to “harvesting” that appears in the law is intended to address the capture of wild fish, and not the mere gathering of farmed animals.

NMFS has appealed the trial court’s decision. Oral arguments were heard on January 6 of this year, when NMFS renewed its claim that Congress intended to give it the authority to regulate aquaculture when it passed Magnuson-Stevens. The appeals court panel was reportedly doubtful. One observer noted that “All three judges expressed skepticism almost immediately, wondering aloud if NMFS’s sudden pivot fundamentally enlarged both the statute’s scope and its underlying authority without underlying support from Congress or the MSA’s text.”

It’s always dangerous to try to predict what an appellate court will decide, but it is safe to say that unless the trial court’s decision is overturned, Congress has not yet authorized NMFS to regulate aquaculture in the EEZ.

Bills have been introduced to fill the regulatory void. H.R. 6191, titled the “Advancing the Quality and Understanding of American Aquaculture Act,” (AQUAA Act) was introduced by Rep. Colin Peterson (D-MN) and Rep. Steven Pallazzo (R-MS). Similar to bills that failed to gain traction in previous sessions of Congress, the AQUAA Act would create a regulatory framework for permitting and maintaining aquaculture operations in the EEZ, and vest regulatory authority in the National Oceanic and Atmospheric Administration (NOAA). However, the AQUAA Act remains in the earliest stages of the legislative process; while it has been referred to committee, it has not yet been scheduled for the committee markup process.

What the Executive Order says about aquaculture

The Executive Order provides a framework for regulating offshore aquaculture that must be viewed against that background of Congressional inaction. Pursuant to the Executive Order, NOAA would become the lead agency charged with preparing and issuing any environmental impact statements (EIS) required pursuant to the National Environmental Policy Act (NEPA), and would be required to complete any such EIS within two years after beginning the assessment process.

The Department of Commerce, NOAA’s parent agency, was also instructed to, “within 1 year of the date of this order, identify at least two geographic areas containing locations suitable for commercial aquaculture and, within 2 years of identifying each area, create a programmatic EIS for each area to assess the impact of siting aquaculture facilities there.” Two additional areas suitable for aquaculture were to be identified in each of the following four years.

The Army Corps of Engineers, which must approve all projects that may impact the use of navigable waters, was also authorized to take a broad-scale approach to the approval process, with the Executive Order granting it the authority to issue a “nationwide permit authorizing finfish aquaculture activities in marine and coastal waters out to the limit of the territorial sea and in ocean waters beyond the territorial sea within the exclusive economic zone of the United States.”

In addition, the Executive Order gave NOAA just 240 days to create an aquaculture web page that describes the federal regulations (which, with respect to aquaculture projects in the EEZ, have not yet even been drafted) affecting aquaculture, lists the state and federal agencies that play a role in the aquaculture permitting process, and identifies grants available to aquaculture operators.

May the administration regulate offshore aquaculture?

The first question that arises is whether, in the absence of a clear delegation of Congressional authority, the president may legally grant NOAA the power to regulate offshore aquaculture.

Under the United States Constitution, which separates and defines the powers and duties of the administrative, legislative and judicial branches of the federal government, the president has no regulatory authority at all. Instead, Article I, Section 1 of the Constitution explicitly states that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”

Section 8 of Article I grants Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Those passages make it absolutely clear that the initial power to regulate offshore aquaculture lies solely with the Congress, and not the president. However, Section 8 of Article I grants Congress the authority to make “all Laws” that are needed to allow “any Department or Officer” of the United States to execute the powers granted to Congress under the Constitution. That would include the regulation of interstate and international commerce and, by extension, aquaculture.

So to answer the first question, it’s necessary to ask another: Has Congress validly delegated its power to regulate offshore aquaculture to the president and administrative branch? If so, the Executive Order would represent a valid exercise of such delegated authority.

That’s a harder question to answer. The Supreme Court recognized Congress’ power to delegate regulatory authority as early as 1825 when, in the matter of Wayman v. Southard, it stated that “Congress may certainly delegate to others, powers which the legislature may rightly exercise itself.”

Since then, the scope of any such delegation has frequently been litigated. As a rule, courts have been reluctant to overturn a Congressional delegation of power, and have adhered to the guidance provided in the Wayman decision, which noted that “the precise boundary of [the delegation] power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.” Thus, more recent litigation has generally focused on whether a delegation must be specific and explicit, or whether implicit authority may be found in a general grant of regulatory powers.

In the matter of Yakus v. United States, the Supreme Court set a very low bar, requiring only that a delegation of power “sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.”

But even that low bar doesn’t necessarily give the president the power to regulate offshore aquaculture. In Gulf Fishermen’s Association, the trial court has already decided that Magnuson-Stevens does not give NMFS jurisdiction over offshore aquaculture; if that decision is upheld on appeal, then the president’s authority to regulate such activity will have to be found elsewhere (although a factsheet available through the NOAA website still claims that “NOAA may issue permits authorizing aquaculture activities under the Magnuson-Stevens Fishery Conservation and Management Act”).

The National Aquaculture Act of 1980 (Aquaculture Act) might provide such authority. It vests the primary authority for creating a National Aquaculture Development Plan (Plan) in the Secretary of Agriculture, but also creates roles for both the Secretary of Commerce and Secretary of the Interior, empowering all three officials to “prescribe such regulations as may be necessary to carry out the Plan,” which was first completed in 1983.

But even that language isn’t definitive. It could easily be argued that the Plan only authorizes administrative agencies to assist in the development of aquaculture operations, not to issue permits or regulate them. At least some members of Congress seem to believe that’s the case, for if NOAA already had the authority to regulate aquaculture, the AQUAA Act wouldn’t be needed.

The Executive Order’s potential impact on fish and fish habitat

But assuming that the Aquaculture Act does represent a valid delegation of Congressional authority and empowers the Administration to act, the next question is how the Executive Order might impact the nation’s marine resources.

The answer to that question lies in the old adage that “haste makes waste,” for the primary effect of the Executive Order would be to hasten the permitting process.

Coastal aquaculture operations have shown that fish farming can have negative impacts on fish and their habitats. By giving NOAA only two years to prepare an EIS related to an aquaculture permit, the Executive Order may make it very difficult, or perhaps impossible, for the agency to take the required “hard look” at whether offshore aquaculture poses similar threats and determine just what the impacts might be.

Offshore aquaculture proponents argue that the negative impacts associated with inshore aquaculture, which include releasing fish wastes that damage nearby habitat, concentrating parasites that then infect native fish, and introducing diseases into wild populations, would not occur in the expanses of the EEZ. However, there is also some evidence to rebut such claims. In Australia, imported sardines, fed to caged tuna, introduced an exotic disease to the local sardine population, which suffered high levels of mortality as a result.

Escapes are also an issue. Whether due to severe storms, maintenance issues or merely mishandling, some aquacultured fish will inevitably escape from their pens and enter the marine environment. Should those fish belong to non-native species, and should there be no native predators able to keep their numbers in check, such escapes could have a devastating impact on native fish and their habitat. The rapid expansion of lionfish,, introduced by the aquarium trade into the waters of the southeastern United States, is a cautionary example of what can occur when non-native species invade a local ecosystem.

Because offshore aquaculture is a new industry, it will take regulators time just to identify the relevant issues, much less to determine the potential harm and how it can be avoided. Compelling them to complete the EIS process within two years makes it more likely that important threats will neither be recognized nor addressed.

That danger is exacerbated by the Executive Order’s insistence that EIS for “aquaculture opportunity areas” be completed on a “programmatic” basis, with a single EIS covering all current and future development within the specified geographical area, rather than completing a unique EIS for each new permit issued. The ocean bottom is not uniform. In some places, it is composed by sand; in others it may be composed of rock, support extensive kelp beds, or host living coral reefs. The impact of an aquaculture project will differ depending on bottom type, by the plants or animals being cultured, by the size of the facility and by the density of the penned animals.

While small facilities might not have a significant impact on bottom sediments, organic wastes released by a larger aquaculture facility located in the ocean off Hawaii created a hypoxic zone on the sea floor that extended for more than 250 feet from the fish cages. The release of such wastes can cause even greater damage to high-profile live bottom and coral reefs, where corals can be killed; even those that survive in locations where the pollutants have become more diluted suffer a loss of reproductive capacity.

While such site-specific issues would probably be identified and addressed in an EIS related to a single permit, they are very likely to be missed when EIS are prepared programmatically. Both the time limit for producing an EIS, and the requirement that, in specified geographic areas, any such EIS will be issued at a programmatic level, subordinates the protection of marine environments to an unseemly haste to get projects underway.

The bottom line

Ultimately, it’s up to the courts to decide whether Congress has given the president the authority to take such hasty action. The Executive Order may provide only the illusion of an efficient permitting process, as actions taken thereunder will almost certainly draw a legal challenge, and result in extended litigation. The Gulf Fishermen’s Association lawsuit was filed in 2016, and is not yet resolved.

That being the case, it would probably be better for the long-term health of fish stocks, fish habitat and the aquaculture industry itself for Congress to take a considered look at the topic and, whether through the AQUAA Act or some other comprehensive legislation, take steps to assure that the marine ecosystem, the aquaculture industry, and other ocean stakeholders are all given the protections that they both need and deserve.

About Charles Witek

Charles Witek is an attorney, salt water angler and blogger. Read his work at One Angler’s Voyage.

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