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NOAA Identifies the First Two Aquaculture Opportunity Areas to Facilitate Expansion of Aquaculture in Federal Waters

The National Oceanic and Atmospheric Administration (NOAA) announced that it has identified the first two regions where Aquaculture Opportunity Areas (AOAs) will be located in federal waters off Southern California and in the Gulf of Mexico.1

The selection of these two regions is the first step towards establishing ten AOAs nationwide by 2025.2 NOAA identified these two regions in response to the Executive Order on Promoting American Seafood Competitiveness and Economic Growth.3 The Executive Order mandated sweeping changes to the regulatory scheme for commercial aquaculture with the goal of removing barriers to the development of commercial aquaculture in the waters of the United States. 

The AOA regions were selected based upon their high potential for expanded commercial aquaculture. Both regions already have a significant amount of data to inform aquaculture site selection and significant interest from companies seeking to develop sustainable aquaculture operations. While NOAA has described the AOAs as small and defined geographic areas, it has not specified a particular proposed size or boundaries for each AOA. The proposed AOAs are expected to support three to five aquaculture sites of varying types including finfish, shellfish, macroalgae, or some combination of thereof. NOAA plans to launch a significant public outreach process to engage with stakeholders and use a data-driven siting analysis to identify specific AOA sites in each region that are environmentally, socially, and economically appropriate for commercial aquaculture.

The Executive Order also directs NOAA to prepare a Programmatic Environmental Impact Statement (PEIS) for each AOA pursuant to the National Environmental Policy Act (NEPA) that considers the environmental effects of the proposed AOAs. The PEIS may identify suitable species for aquaculture in the region, suitable gear for aquaculture in such locations, and suitable reporting requirements for owners and operators of aquaculture facilities in such locations. The Executive Order directs that the PEIS for each AOA be completed within two years of site selection.

The AOAs represent a significant opportunity for companies seeking to develop an aquaculture farm in federal waters in Southern California or the Gulf of Mexico and who are willing to wait for NOAA to complete the lengthy public outreach, specific site selection, and PEIS process. If so, engaging the PEIS process may be an effective avenue to ensure that the environmental review process addresses the appropriate scope and range of potential activities and their impacts. 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 projects. Aquaculture projects 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. NOAA will take the lead in the complicated and difficult process of identifying offshore aquaculture site locations that minimize user conflicts. Further, in preparing a PEIS, NOAA will perform the vast majority of the environmental review required under NEPA, which would represent significant cost savings to applicants, although such applicants would likely still need to conduct a specific environmental review tiered off of the more general PEIS analysis to evaluate the specific environmental impacts associated with their proposed project. 

The establishment of AOAs, once completed, is likely to significantly reduce the time and cost associated with procuring regulatory approvals within the AOA areas, including the NEPA process for project-specific proposals; however, applicants still will need to obtain all required permits from other regulatory agencies. In Southern California, for example, depending on the site location, this could require obtaining permits or authorizations from the U.S. Army Corps of Engineers, the California Coastal Commission, the Regional Water Quality Control Board, the U.S. Environmental Protection Agency, the U.S. Food and Drug Administration, the California Department of Public Health, and/or the U.S. Coast Guard.

If this AOA process is successful, the Executive Order anticipates that the Secretary will designate two additional AOAs per year. Aquaculture companies seeking to establish farms in Southern California and the Gulf of Mexico that want to utilize the AOA process should be in close coordination with NOAA during the public outreach process. Coordination with NOAA will help ensure that the locations selected meet the operational and logistical requirements for their proposed project, that their proposed operation is considered during the AOA process, and that the terms and conditions associated with development within the AOA are reasonable and cost-effective. Aquaculture companies that are interested in developing elsewhere in federal waters should be in coordination with NOAA to advocate for their region to be selected in the next round of AOA designations. Even if a company does not want to utilize the AOA process, the regional data collection that will be part of the AOA process can be utilized by other aquaculture applicants that seek permitting outside of the NOAA AOA framework.

Footnotes 

1 Press Release, NOAA Announces Regions for First Two Aquaculture Opportunity Areas under Executive Order on Seafood (Aug. 20, 2020), available here

2 For a more detailed discussion of the impacts of the Executive Order on Promoting American Seafood, see our alert COVID-19: Trump Administration Takes Actions to Assist U.S. Aquaculture

3 Exec. Order 13921, 85 Fed. Reg. 28,471 (May 12, 2020).

Copyright 2022 K & L GatesNational Law Review, Volume X, Number 241
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About this Author

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...

206.370.5743
Ankur K. Tohan, KL Gates Law Firm, Environmental Law Attorney
Partner

Ankur Tohan works with the firm's Environmental, Land and Natural Resources practice. His practice focuses on energy infrastructure, natural resource development, compliance counseling, and defense of governmental and citizen enforcement actions.

Ankur helps clients navigate complex regulatory, permitting, and enforcement matters under a range of environmental statutes, including the Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle Protection Act (BGEPA), Endangered Species Act (ESA), Clean Water Act (CWA), Safe Drinking Water Act (SDWA...

206-370-7658
J. Timothy Hobbs Environment, Land & Natural Resources Attorney K&L Gates Seattle, WA & Washington DC
Partner

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...

206.370.7664
 Natalie J. Reid Associate Seattle Environment, Land and Natural Resources
Associate

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

206-370-6557
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