Environmental, Natural Resources, & Energy Law Blog
The AQUAA Act – Bad for Our Oceans, Bad for the Fishing Industry, Bad for Fish - Patty Keough
In late 2021, the Advancing the Quality and Understanding of American Aquaculture Act, S. 3100/H.R. 6258 (“AQUAA Act”) was reintroduced in the U.S. Senate and House of Representatives. The bill, which was first introduced in the 115th Congress, aims to “establish a regulatory system for sustainable offshore aquaculture in the United States exclusive economic zone, and for other purposes,” and would appoint the National Oceanic and Atmospheric Administration (“NOAA”) as the lead federal agency for marine aquaculture. Among other things, the AQUAA Act – which will enable aquaculture companies to operate three miles from the coastline – would open up the development of commercial aquaculture in federal waters by streamlining current permitting requirements, put in place national standards for fish feed and aquaculture, and make funds available for the promotion of seafood and aquaculture.
Supporters of the legislation, which include seafood companies like Cargill and Pacific Seafoods and the group Consortium for Ocean Leadership, insist that the AQUAA Act will help to establish a sustainable food future, provide certainty to business and investors, and create jobs. Critics, on the other hand, maintain that the AQUAA Act will result in pollution that will harm local ecosystems, may devastate local fishing industries, and have negative impacts on fish welfare.
Background on the AQUAA Act
The AQUAA Act was first introduced in 2018 but died in Committee. Since then, similar versions of the bill have been reintroduced, but have also died in Committee. In May of 2020, President Donald Trump signed Executive Order 13921 entitled “Promoting American Seafood Competitiveness and Economic Growth,” which directed NOAA to create “Aquaculture Opportunity Areas,” consisting of waters that demonstrate great potential for commercial aquaculture, including the Gulf of Mexico. However, in August of 2020, the Fifth Circuit Court of Appeals stymied this plan when it upheld a 2018 lower court ruling that NOAA does not have jurisdiction to regulate offshore aquaculture under current U.S. fisheries laws. Nevertheless, legislators have persisted in their efforts to designate NOAA as the lead agency for offshore aquaculture, reintroducing the AQUAA Act for the third time in 2020, and the current bill in October of 2021.
What is offshore aquaculture?
In general, the term “aquaculture” refers to the breeding, raising, and harvesting of fish, shellfish, and other aquatic organisms in a variety of water settings. Aquaculture is divided into two main types: freshwater, and marine or ocean-based aquaculture. Ocean-based aquaculture, which includes both “open ocean” and offshore aquaculture, involves cultivating large numbers of finfish in floating or under water pods, cages, and net pens. Offshore aquaculture, which the AQUAA Act seeks to develop, is defined as the “rearing of marine organisms in ocean waters beyond significant coastal influence, primarily in the federal waters of the exclusive economic zone (EEZ).” At present, although there are marine aquaculture facilities operating in nearshore state waters, there are no commercial facilities located in federal waters.
Supporters of aquaculture as a sustainable food system – whether freshwater or ocean-based – point to the fact that it requires less land and water than conventional land-based livestock production and produces fewer greenhouse gases. In addition, aquaculture systems typically have more efficient feed conversion ratios than land-based sources, which means that less feed is needed to produce farmed fish than it does to produce farmed beef, chicken, or pork.
Negative impacts of offshore aquaculture and criticisms of the AQUAA Act
Referring to large scale marine aquaculture as “industrial ocean fish farming” and “essentially factory farms in water,” opponents of offshore aquaculture raise several concerns, including the harmful environmental impacts of offshore aquaculture, poor fish welfare, and the effect of offshore aquaculture on local fisheries. The sustainability and economic viability of offshore aquaculture is also questioned.
On the environmental impacts, critics highlight that large-scale offshore aquaculture can cause habitat degradation due to water pollution from feed and waste, including antibiotics, chemicals, and other substances, the introduction of invasive species from the escape of farmed fish, and the spread of diseases from farmed to wild fish. By-catch is also a problem because seabirds and other wildlife are drawn to large-scale aquaculture operations and can then get tangled up in nets and other equipment and be injured or die.
The net pens are especially problematic because untreated fish waste and chemicals are released straight into the ocean through the pens. Because large scale aquaculture operations are basically factory farms for fish, with net pens overflowing with fish, the result can be a breeding ground for parasites and deadly diseases. As such, and similar to industrial land animal operations, large scale aquaculture operations utilize antibiotics, pesticides, and other agricultural drugs, which in turn, can pollute the ocean and negatively impact surrounding marine organisms. Fish escapes are another environmental concern, especially when nonnative or genetically selected fish escape and remain in the wild. What is referred to as the most “infamous case” of fish escapement in a large-scale aquaculture operation occurred in 2017 in Washington state when poor net maintenance at Cooke Aquaculture resulted the escape of 263,000 nonnative Atlantic salmon to into the Puget Sound and Pacific Ocean.
In addition, the sustainability of offshore aquaculture is debatable because most of the fish species raised in these operations are carnivorous, which means that they need to eat other fish. Notably, approximately 20 million metric tons of fish are caught annually just to feed farmed fish. Because the caught fish could instead be used to feed humans, critics contend that this presents a “contentious environmental and ethical issue.”
Animal advocates also criticize large-scale industrial aquaculture for its negative impacts on fish welfare, because the overcrowded conditions of fish farms can lead to fish becoming highly stressed, which can result in interspecies aggression. Health problems due to poor water quality are another concern.
In addition, there are certain “externalities” associated with offshore aquaculture that must be considered. These consist of the costs that may impact those who are not involved in offshore aquaculture, including the possibility that habitat degradation from aquaculture and associated declines of wild fish populations may harm commercial fishers. A report published by FoodPrint and the North Atlantic Marine Alliance (NAMA) concluded that the present growth of large scale aquaculture operations “may cause serious harm to traditional fishing structures.” In fact, worried that large scale aquaculture will endanger ecosystems and devastate local fisheries, Alaska and Maine have thwarted efforts to introduce new fish farms.
On top of all of these concerns, the economic viability of offshore aquaculture is far from certain and will depend on several factors. One of these factors is demand. Even though people are consuming more seafood, and seafood is viewed as healthier alternative to other sources of animal protein, offshore aquaculture products will nevertheless compete with domestically produced and deeply entrenched food sources such as wild fish, imported seafood, and beef, chicken, and pork. Furthermore, some critics assert that because of high production costs, in order to succeed offshore aquaculture operations will need to focus on luxury markets and cultivate “specialized high-end products,” such as like bluefin tuna.
Critics of large scale industrial aquaculture believe that passage of the AQUAA Act will only worsen these negative impacts, even referring to the legislation as “dangerous.” A primary concern is that the AQUAA Act’s expedited permitting timelines would not allow for sufficient time to provide for complete and ample review. NOAA would have just 30 days to make a determination on permit applications, and permit applicants would have a mere 10 days to make any required revisions to their applications. This is significant – because as previously noted – by bringing large scale industrial fish farms to federal waters, the AQUAA Act has the potential to cause serious environmental degradation, and this short timeframe for review of would greatly hamper quality review of these critical environmental issues.
Opponents of the bill also point to the fact that it fails to mention the Endangered Species Act or the Marine Mammal Protection Act, disease and pest prevention and treatment, and traceability of on where fish are sourced, fed, and processed. Other arguments against the AQUAA Act is that it will allow farming of transgenic and genetically modified fish, gives the National Oceanic Atmospheric Administration too much regulatory discretion, and that it overlooks worker safety.
Animal welfare advocates say that although the current AQUAA Act has language relevant to preventing fish escape, animal health, and disease prevention, it nevertheless fails to sufficiently address the main problems associated with industrial marine aquaculture and would only further contribute to these problems if it were to pass.
Alternatives to the offshore aquaculture and the AQUAA Act
Supporters of aquaculture contend that if properly implemented, these systems have the potential to play a crucial part in sustainable food production both in the U.S. and abroad. Nevertheless, this is no reason to enact the AQUAA Act. The AQUAA Act should be opposed because, far from being sustainable, large-scale offshore aquaculture will endanger our ocean ecosystems, result in degradation of wild fish populations, undermine our wild-caught fishing industry, and have a negative impact on fish welfare.
Alternatives to offshore aquaculture exist. Because of the problems associated with offshore aquaculture, some believe that freshwater aquaculture is a more sustainable alternative. Freshwater farming of species like catfish and tilapia is growing in parts of Africa and Egypt due to high demand for these less expensive sources of protein. Even in the U.S., these freshwater fish are popular among consumers. At the very least, the gaps identified in the current AQUAA bill should be addressed and closed. That is why some groups – such as Friends of the Earth and Northwest Atlantic Marine Alliance – support the Keep Finfish Free Act of 2021, which “places a moratorium on commercial permitting of marine finfish aquaculture facilities in federally controlled areas of the ocean.”
Perhaps even better, because eating a plant-based diet is more sustainable and healthier than eating seafood, poultry, or meat, the U.S. should incentivize investments in plant-based alternatives instead of encouraging investment in aquaculture in federal waters. This could be in the form of government grants to support the research and development plant-based proteins and/or to help farmers transition from all forms of industrial animal agriculture to raising plant-based crops.
 Advancing the Quality and Understanding of American Aquaculture Act, https://www.govinfo.gov/app/details/BILLS-117s3100is; https://www.govinfo.gov/app/details/BILLS-117hr6258ih (last visited Apr. 18, 2022)
 Harold F. Upton, U.S. Offshore Aquaculture Regulation and Development, Summary, CONG. RSCH. SERV. (Oct. 2019)
 Advancing the Quality and Understanding of American Aquaculture Act, supra note 1; https://www.govinfo.gov/app/details/BILLS-117s3100is; Wicker, Schatz, Rubio Introduce AQUAA Act to Advance American Aquaculture, U.S. Senate Committee on Commerce, Science, & Transportation (Oct. 28, 2021), https://www.commerce.senate.gov/2021/10/wicker-schatz-rubio-introduce-aquaa-act-to-advance-american-aquaculture (last visited Apr. 18, 2022).
 Palazzo and Case Introduce Bill to Advance Aquaculture Research (Dec.15, 2021), https://palazzo.house.gov/news/documentsingle.aspx?DocumentID=402456; Aquatic Life Institute, A bill that could impact millions of fish was recently introduced in the U.S., here’s what you need to know (Dec. 14, 2021), https://ali.fish/blog/a-bill-that-could-impact-millions-of-fish-was-recently-introduced-in-the-us-heres-what-you-need-to-know (last visited Apr. 18, 2022).
 Rachel Sapin, US offshore aquaculture bill supported by Cargill, others reintroduced in Congress, IntraFish (Oct. 28, 2021), https://www.intrafish.com/aquaculture/us-offshore-aquaculture-bill-supported-by-cargill-others-reintroduced-in-congress/2-1-1090723 (last visited Apr. 18, 2022); Coalition Letter In Support Of The Advancing The Quality And Understanding Of American Aquaculture Act (AQUAA Act), Consortium for Ocean Leadership (Feb. 6, 2019), https://oceanleadership.org/coalition-letter-in-support-of-the-advancing-the-quality-and-understanding-of-american-aquaculture-act-aquaa-act/ (last visited Apr. 18, 2022).
 Palazzo and Case Introduce Bill to Advance Aquaculture Research, supra note 4.
 Senate Re-Introduction of AQUAA Act Could Be a Cause for Concern, FoodTank (Jan. 2021), https://foodtank.com/news/2021/01/senate-re-introduction-of-aquaa-act-could-be-a-cause-for-concern/ (last visited Apr. 18, 2022); Aquatic Life Institute, supra note 4.
 E.O. 13921 of May 7, 2020, Promoting American Seafood Competitiveness and Economic Growth, https://www.federalregister.gov/documents/2020/05/12/2020-10315/promoting-american-seafood-competitiveness-and-economic-growth; Aquatic Life Institute, supra note 4.
 Sam Hill, Federal Court Order Complicates US Offshore Aquaculture Efforts, Saving Seafood (Aug. 5, 2020), https://www.savingseafood.org/news/law/federal-court-ruling-complicates-us-offshore-aquaculture-efforts/
 Aquatic Life Institute, supra note 4.
 What is aquaculture?, National Ocean Service, https://oceanservice.noaa.gov/facts/aquaculture.html (last visited Apr. 18, 2022).
 Id.; What is Industrial Ocean Fish Farming?, Don’t Cage Our Ocean, https://dontcageouroceans.org/ (last visited Apr. 18, 2022).
 Upton, supra note 2, at 1.
 Alexandra Carter & Miriam Goldstein, American Aquaculture: An Overview of the Current Status, Environmental Impacts, and Legislative Opportunities, Ctr. for American Progress (May 13, 2019), https://www.americanprogress.org/article/american-aquaculture/ (last visited Apr. 18, 2022).
 Don’t Cage Our Ocean, supra note 14.
 Upton, supra note 2, at 20.
 Don’t Cage Our Ocean, supra note 14.
 Upton, supra note 2, at 23.
 Carter & Goldstein, supra note 17.
 Ben Belton, Dave Little & Zhang Wenbo, The fresh alternative to offshore fish farms, GreenBiz (Apr. 5, 2021), https://www.greenbiz.com/article/fresh-alternative-offshore-fish-farms (last visited Apr. 18, 2022).
 Aquatic Life Institute, supra note 4.
 “Externalities” are defined as “spillover costs or benefits, which are unintended consequences or side effects associated with an economic activity.” Upton, supra note 2 at 33.
 Upton, supra note 2, at 33.
 Senate Re-Introduction of AQUAA, supra note 7.
 Upton, supra note 2, at 31.
 Belton, Little & Wenbo, supra note 27.
Senate Re-Introduction of AQUAA Act, supra note 7.
 Friends of the Earth, Say No to the AQUAA Act, https://1bps6437gg8c169i0y1drtgz-wpengine.netdna-ssl.com/wp-content/uploads/2018/11/Say-NO-to-the-AQUAA-Act-28S.-3138_H.R.-696629.pdf (last visited Apr. 18, 2022).
 Aquatic Life Institute, supra note 4.
 Belton, Little & Wenbo, supra note 27
 “[T]ilapia, pangasius (freshwater catfish) and channel catfish are the fourth, sixth and eighth most consumed seafood items” in the United States. Id.
 H.R.274 - Keep Finfish Free Act of 2021, https://www.congress.gov/bill/117th-congress/house-bill/274; Congressman Don Young reintroduces the “Keep Fin Fish Free Act” to protect oceans from floating factory farms, Friends of the Earth (Jan. 12, 2021), https://foe.org/news/young-reintroduces-keep-fin-fish-free/ (last visited Apr. 18, 2022).
 Dana Hunnes, The Case for Plant Based, UCLA Sustainability, https://www.sustain.ucla.edu/food-systems/the-case-for-plant-based/ (last visited Apr. 18, 2022).