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COVID-19: Trump Administration Takes Actions to Assist U.S. Aquaculture

The Trump administration recently announced a major action to assist the U.S. commercial aquaculture industry. President Trump’s Executive Order on Promoting American Seafood Competitiveness and Economic Growth[1] (Order) aims to increase seafood production by streamlining the aquaculture regulatory permitting process. This alert outlines the impacts of the Order on aquaculture, with reference to the impacts on offshore aquaculture in particular.

The Order mandates sweeping changes to the regulatory scheme for commercial aquaculture with ambitious goals for the expansion of domestic seafood production through aquaculture. The Order provides several tools, including the development of nationwide permits for finfish, seaweed, and multi-species aquaculture activities, and identification of Aquaculture Opportunity Areas, that have the potential to streamline development of aquaculture projects. However, the Order does not exempt aquaculture projects from any of the numerous state and federal permits required, and development of the tools identified in the Order will likely be contentious and may take years to develop. Additionally, it is unclear if any of the agency actions compelled by the Order have been funded. At a minimum, the Order shows a commitment from the President and the National Oceanic and Atmospheric Administration (NOAA) that expansion of sustainable domestic aquaculture is a high priority, particularly given the impact to the industry from the COVID-19 pandemic.

The Order mirrors many of the objectives of the Advancing the Quality and Understanding of American Aquaculture Act (AQUAA Act),[2] a bill recently sponsored by Representative Collin Peterson (D-MN) and Representative Steve Palazzo (R-MS) in the U.S. House, and previously introduced in 2018 by Senator Roger Wicker (R-MS) in the Senate,[3] that seeks to establish a regulatory system for sustainable offshore aquaculture in the United States Exclusive Economic Zone (EEZ[4]).

To begin with, the Order clarifies that NOAA will be the lead agency for any aquaculture project that requires authorization by two or more agencies to proceed, requires preparation of an environmental impact statement (EIS) under NEPA, and is located outside of the waters of any state or territory and within the EEZ. The Order also instructs agencies to complete all environmental review and authorization decisions for applicable projects within two years of publication of the notice of intent to prepare an EIS.

Second, the Order instructs the Corps to develop three new nationwide permits authorizing finfish, seaweed, and multi-species aquaculture activities, respectively, in state waters and the EEZ. The Corps must develop and propose these new nationwide permits within 90 days of the date of the Order, or by early August 2020. These nationwide permits could significantly streamline federal permitting associated with such activities, similar to the nationwide permit previously approved by the Corps for shellfish aquaculture activities.

Third, the Order mandates that the Secretary of Commerce identify “Aquaculture Opportunity Areas.” Within one year of the Order, the Secretary must identify at least two geographic areas containing locations suitable for commercial aquaculture and, within two years of identifying each area, complete a programmatic EIS for each. For the following four years, the Secretary of Commerce must identify two additional aquaculture opportunity areas each year and complete a programmatic EIS for each within two years of identification. The programmatic EIS for each aquaculture opportunity area may include identification of suitable species, gear, and reporting requirements for owners and operators of aquaculture facilities in those locations. Identification of suitable site locations for aquaculture and coordinated programmatic environmental review has the potential to remove significant obstacles to the expansion of domestic aquaculture, which are currently required to go through extensive environmental review and site selection analysis prior to permit approval, which has proven to be cost prohibitive for many potential applicants.

Fourth, the Order instructs the Secretaries of the Interior, Agriculture, and Commerce, in consultation with the Joint Subcommittee on Aquaculture, to assess whether to revise the National Aquaculture Development Plan to improve the efficiency and predictability of aquaculture permitting, including whether revisions are required to identify restrictions to operate in a specific area for a specific period of time (such as a lease).

Finally, the Order requires the Secretary of Agriculture to consider whether to terminate and replace the 2008 National Aquatic Animal Health Plan.

 

NOTES

[1] Exec. Order 13921, 85 Fed. Reg. 28,471 (May 12, 2020), https://www.federalregister.gov/documents/2020/05/12/2020-10315/promoting-american-seafood-competitiveness-and-economic-growth.

[2] AQUAA Act, H.R. 6191, 116th Cong. (2019–2020).

[3] Senators Roger Wicker (R-MS) and Brian Schatz (D-HI) are currently working on an AQUAA Act bill, a draft of which has been circulated to stakeholders for review and comment.

[4] The EEZ consists of marine federal waters extending from state boundaries out to 200 nautical miles from shore. For most states except two, state jurisdiction extends from the shoreline out to three nautical miles. State jurisdiction in Texas and off the west coast of Florida extends out to nine nautical miles from shore.

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Copyright 2021 K & L GatesNational Law Review, Volume X, Number 137
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Robert M. Smith Environmental Attorney K&L Gates Seattle, WA
Partner

Robert Smith is a partner in the firm’s Seattle office. He is a member of the environment, land and natural resources practice group. His practice focuses on land use, governmental and regulatory permitting, real estate and shoreline development, aquaculture and fisheries law, and tribal law.

His experience includes counseling clients through all required local, state and federal regulatory proceedings, including environmental and regulatory due diligence, representation of clients at administrative and regulatory hearings, negotiation of permit terms and conditions, state and...

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J. Timothy Hobbs Environment, Land & Natural Resources Attorney K&L Gates Seattle, WA & Washington DC
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Tim Hobbs is a litigator and strategic legal advisor. Judges have praised him for “sterling quality” oral arguments and “excellent” legal writing. Clients trust him with their most complex issues.

Mr. Hobbs has litigated and won a wide range of cases before federal and state courts and other tribunals across the country. He is a member of the firm’s top-ranked Environmental Litigation practice, and frequently litigates cases involving fisheries, natural resources and other environmental issues. A leading trade publication called a recent case he won a “stunning victory for the...

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Darrell Conner, KL Gates Law Firm, Public Policy Attorney
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Mr. Conner is a government affairs counselor in the Public Policy and Law practice group at K&L Gates, one of the largest policy groups in the United States.  He has nearly 25 years of experience working with Congress and the executive branch, experience that he leverages to provide advice to clients on effectively managing their government and regulatory affairs, in particular helping clients by create alignment between their objectives and government policies.

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William Myhre, partner, KL Gates
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Mr. Myhre has 40 years experience in a wide range of federal regulatory, policy and legislative matters focusing on domestic and international maritime issues among others. He is experienced in cargo and cruise shipping matters and the commercial fishing industry including regulatory limitations on foreign investment in the U.S. maritime industry as well as the construction, conversion, documentation and financing of vessel assets. He has represented industry coalitions and individual companies in complex legislative initiatives and their subsequent implementation and...

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 Natalie J. Reid Associate Seattle Environment, Land and Natural Resources
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Natalie Reid is an associate at the firm’s Seattle office. She is a member of the environment, land and natural resources practice group.

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