Publication Date:
2022-05-26
Description:
Throughout the northeastern United States, aquaculture operators face a wide variety of laws and
regulations that govern the manner in which they plan, site, and operate aquaculture facilities.
Many local, state, and federal laws and regulations have been designed to enable aquaculture to
exist as a viable industry and to flourish. It is obvious that aquaculture cannot be conducted in
the absence of a legal system that establishes property rights, provides a means for the
enforcement of these rights, and ensures the safety of the product for consumers.
Although a legal framework is necessary for aquaculture to exist as an industry, there are many
instances where uninformed, outdated, or inappropriate regulatory regimes impede aquaculture
development (DoC 1999; MCZM 1995; Ewart et al. 1995; Rychlak and Peel 1993; Bye 1990;
DeVoe and Mount 1989; Kennedy and Breisch 1983; NRC 1978). Inconsistencies in the law can
lead to an uncertain legal environment for aquaculturists.1 Regulators are put in the conflicting
position of promoting the development of the industry and regulating its effect on other uses of
the land and sea (DeVoe 1999; NRC 1992). Operators are sometimes forced to undertake
activities while lacking adequate information or a complete understanding of laws and
regulations. Conflicts and concerns often may be left unresolved until an issue is brought before
an adjudicatory body. Legal constraints such as these detract from the stability and certainty that
otherwise would facilitate sustainable aquaculture development, slowing or halting the growth of
the industry, or perhaps even leading to its decline. Such constraints make the statements quoted
above as true today as they were 35 years ago.
Policies that both facilitate and constrain aquaculture have been reviewed by a number of
commentators (McCoy 2000; Brennan 1999; Barr 1997; Reiser and Bunsick 1999; Reiser 1997;
Hopkins et al. 1997; Rychlak and Peel 1993; Eichenberg and Vestal 1992; Wildsmith 1982; Kane
1970). In 1981, the US Fish and Wildlife Service sponsored a comprehensive review of
aquaculture regulation across the nation (the “Aspen Report”). The report’s authors identified at
least 120 federal laws that, at that time, either directly (50 laws) or indirectly (70 laws) affected
aquaculture. Further, the authors found more than 1,200 statutes regulating aquaculture in 32 states (ASC 1981). An important finding of the Aspen Report was that aquaculture businesses
must obtain at least 30 permits, on average, in order to site and operate their businesses. McCoy
(2000) concludes from his review of the Aspen Report and other studies that aquaculture may be
the most highly regulated industry in America.2 In its responses to periodic surveys of
constraining factors, the industry seems to agree with McCoy by consistently ranking legal and
regulatory constraints near the top of the list of factors.
Wypyszinszki et al. (1992) begin to assemble the body of law relating to marine aquaculture in
the US Northeast, although their work remains unfinished due to insufficient resources. A
number of excellent analyses emerged from that effort, including a study of the public trust
doctrine by Eichenberg and Vestal (1992) and a study of “reverse regulation” of the oyster
industry in Long Island Sound.3
Here we examine a range of aquaculture policies in an effort to identify those laws and
regulations that may impede development unnecessarily within the northeastern United States.
Through a survey of industry and government officials and a review of the literature, we find that
specific laws and policies or the absence of laws and policies can be argued to impose
constraints on growth in certain segments of the industry.
Description:
Funding was provided by the Northeastern Regional Aquaculture Center through Grant
number 98-38500-5917 from the U.S. Department of Agriculture Cooperative State,
Research, Education, and Extension Service (USDA-CSREES).
Repository Name:
Woods Hole Open Access Server
Type:
Working Paper
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