The US Fifth Circuit Court of Appeals in New Orleans has blocked federal rules to allow large-scale aquaculture facilities to be built in offshore US waters for the first time, by upholding a 2018 federal ruling that such operations cannot be regulated by the US National Oceanic and Atmospheric Administration (NOAA) under existing US fisheries laws. Under the ruling, in relation to aquaculture development plans in the Gulf of Mexico, Congress has to adapt legislature to allow effective permitting of offshore aquaculture. The Trump administration had signed an executive order earlier this year to expand the US' aquaculture operations.
Why does this matter? The ruling deals a blow to the Trump Administration’s efforts to boost the US aquaculture industry following an executive order issued in May to fast-track permitting outside of state waters.
The Circuit Court ruling, in relation to aquaculture development plans in the Gulf of Mexico, says the 1976 Magnuson-Stevens Fishery Conservation and Management Act does not allow for NOAA’s National Marine Fisheries Services (NMFS) to regulate aquaculture in offshore (non-state) US waters – as the 40-year-old statute does not mention the industry. The court said Congress would have to adapt the legislature for it to apply to aquaculture.
May’s executive order was intended to increase the efficiency of aquaculture permitting processes, to maximise commercial fishing through regulatory reforms and to restrict certain seafood imports – which currently account for around 85% of US seafood consumption. It was welcomed by US aquaculture firms, and looked to place the responsibility for farm permits outside state waters in the hands of NOAA, with the goal of completing reviews of projects within two years.
The ruling marks a victory for environmental groups that brought the action, many of which were concerned about the marine impact of the Trump Administration’s plans. Friends of the Earth had argued that a forced two-year timeframe for NOAA to permit facilities could lead to declining standards.
The legal challenge was targeted at net-pen aquaculture off Florida’s west coast. One of the developers targeting the area, which said it would press ahead with planning despite the ruling, questioned which body would coordinate the regulation of offshore aquaculture in the US if it wasn’t NOAA.
At the crux of the case is the issue of whether aquaculture fits alongside other technical advances to “harvest” fish that are so-far permitted within the Magnuson Act. Commentators had already suggested, however, that Congress would have to create a new law in any circumstance for NOAA to offer aquaculture permits.
The fact Congress would have to make amendments to expand the Magnuson rule for it to encompass aquaculture could mark a further hurdle for the fish farming industry. A separate aquaculture bill was put to the House of Representatives in March, but a previous version, introduced in 2018, failed to win over conventional fishers, Democrats and environmental groups.