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On May 7, 2020, President Donald Trump issued an executive order to remove aquaculture regulations and to create more effective aquaculture permitting to revitalize the American seafood industry. Currently, the United States imports more than 80% of its seafood despite having 95,471 miles of shoreline. Importing mass amounts of seafood jeopardizes the American seafood industry, eliminates jobs and poses a risk to the safety of seafood for human consumption. However, the United States has not tapped into its tremendous seafood potential perhaps due to environmental concerns and complicated regulatory processes surrounding finfish aquaculture in federal waters. To stimulate the American seafood industry, the Seafood Order states its goals are to streamline offshore aquaculture permitting processes, remove barriers to American fishing and promote offshore aquaculture site identification efforts.
Executive orders can compel agencies to act
Before discussing key provisions of the Seafood Order, here is an overview of how executive orders originate and function. Article II of the Constitution grants the president broad power to “take care that the laws be faithfully executed.” Essentially, the president may use executive orders to manage the executive branch, to direct the executive branch to follow existing laws in a particular way and to compel executive agencies to act. However, executive orders may not conflict with or override existing laws. Executive orders allow presidents to advance policy objectives and to address problems without passing new legislation.
NOAA as the lead agency
The Seafood Order manages the executive branch by establishing the National Oceanic and Atmospheric Administration (NOAA) as the lead agency on aquaculture permitting. A lead agency supervises the preparation of an environmental review if more than one agency is involved in an activity. As the lead agency, NOAA will coordinate an aquaculture project through the environmental review process required by the National Environmental Policy Act. Interestingly, NOAA lacks the authority to issue permits and regulations for aquaculture, except where the operation conflicts with a protected species, so the order designates a lead agency with no significant permitting role. Moreover, other regulatory agencies involved in aquaculture permitting must cooperate with NOAA. The U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) issue permits, review and oversee offshore aquaculture.
USACE ensures that an aquaculture facility does not interfere with navigable waterways, and EPA issues a National Pollution Discharge Elimination System (NPDES) permit to manage any water pollution produced by aquaculture facilities. However, federal agencies already coordinate on environmental reviews for complex federal projects, so it is unclear whether the Seafood Order streamlines the regulatory process. Either way, establishing NOAA as the lead agency shows how executive orders can affect the executive branch.
Order directs management councils to remove barriers
Moreover, the Seafood Order directs NOAA’s Regional Fishery Management Councils to recommend actions that remove barriers to American fishing without conflicting with existing laws. The recommended actions must be consistent with the Endangered Species Act, the Marine Mammal Protection Act and the Magnuson-Stevens Fishery Conservation and Management Act. In other words, the proposed actions may not threaten the listed endangered species or critical habitats, harm marine mammals or violate laws ensuring sustainable fishery management. However, the Seafood Order does not specify what barriers exist, and, in fact, under the Magnuson-Stevens Act, all fisheries are managed to attain their optimum yield. In response to the Seafood Order, the Gulf Council requested input from the public on how to remove barriers to sustainable fishing. Requiring the Regional Fishery Management Councils to recommend actions to remove fishing barriers shows how executive orders direct agencies to follow existing law in a way that advances policy objectives.
Order calls for identifying aquaculture sites
The order also compels NOAA to identify two offshore aquaculture sites every year for the next five years. In the past, NOAA has struggled to identify offshore aquaculture sites due to environmental regulations and expenses. For example, the development of Manna Fish Farms located off the coast of Pensacola, Florida, has been slowed first by the establishment of critical habitat for the Bryde’s whale, and next due to the discovery of a hard subsurface that could include coral within the proposed site. Offshore aquaculture facilities are large and anchored to the ocean floor, so the site would interfere with the whale habitat and anchors would destroy the possible corals, 25 species of which are protected. Other environmental concerns include pollution from fish waste, fish escapes and infectious diseases. Second, the estimated initial investment for an offshore aquaculture facility is $2.89 million according to NOAA. Operating costs for one grow-out cycle are about $1 million. Offshore aquaculture is very expensive to implement and operate, so the cost has deterred development.
On top of environmental concerns and operation expenses, offshore aquaculture sites may not interfere with military operations, commercial shipping, oil and energy infrastructure, and fishing grounds. Many fishers oppose aquaculture because aquaculture sites take potential fishing grounds and aquaculture may compete with fishing by lowering wild caught fish prices. Moreover, the Seafood Order encourages offshore aquaculture in federal waters. Federal waters begin three miles offshore and aquaculture facilities require deep water to allow for adequate circulation. These geographical requirements pose additional challenges. All of these considerations and stakeholders make offshore aquaculture site identification difficult, so identifying two sites each year appears to be a lofty goal. Either way, compelling NOAA to identify two sites a year shows how presidents can use executive orders to affect change.
Overall, the Seafood Order establishes a hierarchy of executive agencies for the permitting process and compels NOAA to act in ways that advance economic policy objectives. Though the Seafood Order is not the same as a new law, it does have the effect of changing NOAA’s priorities to develop new fishing regulations and identify new offshore aquaculture sites. These actions are intended to allow more businesses to enter offshore aquaculture, promote the American seafood industry, create more jobs and strengthen the economy. On the other hand, offshore aquaculture may cause environmental degradation, harm wild fish populations and is very expensive to operate.
(Margot Blaire Woolverton is an intern with the Mississippi-Alabama Sea Grant Legal Program and a student at The University of Alabama School of Law.)