A review of legal and policy constraints to aquaculture in the US northeast

Abstract

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a legal framework is necessary for aquaculture to exist as an industry, there are many instances where uninformed, outdated, or inappropriate regulatory regimes impede aquaculture development (DoC 1999; MCZM 1995; Ewart et al. 1995; Rychlak and Peel 1993; Bye 1990; DeVoe and Mount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.