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Finfish aquaculture permits in the Gulf hit a snag

By: Kristina Alexander / Published: Oct 05,  2018

While oyster aquaculture is an activity near and dear to the heart of the Mississippi-Alabama Sea Grant Consortium, finfish aquaculture in the Gulf of Mexico is new. Mississippi-Alabama Sea Grant is helping the first finfish aquaculture operation get started. However, a recent court decision may alter the first steps in getting a permit for the first Gulf of Mexico finfish aquaculture operation.

The National Oceanic and Atmospheric Administration (NOAA) issued final regulations for finfish aquaculture in January 2016. The basis for the regulations was the Magnuson-Stevens Fishery Conservation and Management Act (MSA), a law that authorizes regional fishery councils to dictate catch limits for certain species that, without catch limits, would be in danger of disappearing due to overfishing.

These Atlantic salmon net pens can be found in Lubec, Maine. At present, no finfish aquaculture facilities are operating in the Gulf of Mexico. (Photo by Chris Bartlett/Maine Sea Grant)
These Atlantic salmon net pens can be found in Lubec, Maine. At present, no finfish aquaculture facilities are operating in the Gulf of Mexico. (Photo by Chris Bartlett/Maine Sea Grant)

NOAA argued to the court that because the MSA authorized NOAA to “manage” fishing, and the act defined fishing as “catching, taking, and harvesting” (https://www.law.cornell.edu/uscode/text/16/1802), the act authorized NOAA to manage finfish aquaculture in federal waters (more than 3 nautical miles out, depending on the state). Harvesting is typically defined as “the act or process of gathering a crop,” according to NOAA. In this case, the crop is fish.

The court disagreed, finding NOAA had exceeded its authority under the MSA. While the court agreed that fishing was defined as “catching, taking, and harvesting,” the court refused to find that “harvesting” under the MSA meant bringing in a crop of fish.

Instead, based on the totality of the act as well as the legislative discussions leading to the act, the court held that fishing referred to bringing in wild fish. Harvesting in this context meant “catching of wild fish.”

As mentioned, at present, no finfish aquaculture facilities are operating in the Gulf. The NOAA permit would have authorized the applicant to retain, harvest, transport and sell the species stocked at a facility located in the Exclusive Economic Zone (EEZ). However, it is not the only permit required.

The Army Corps of Engineers must also issue a permit under Section 10 of the Rivers and Harbors Act to verify that the facility, which is anchored to the ocean floor, will not interfere with navigation. Additionally, the Environmental Protection Agency must issue a National Pollutant Discharge Elimination System permit under the Clean Water Act evidencing that the site will not contaminate the Gulf.

The lawyers at the Mississippi-Alabama Sea Grant Legal Program are assisting The University of Southern Mississippi under a grant issued by the Gulf States Marine Fisheries Commission (GSMFC) to help with the permitting process for a first finfish aquaculture operation in the Gulf. The GSMFC grant funds background research for the permits described above, but does not include obtaining the permits. Under the terms of the grant, the group will conduct the preliminary studies to help the applicant obtain necessary permits for a finfish operation.

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