NSGLC Releases Special Edition of Sea Grant Law & Policy Journal Dedicated to Offshore Aquaculture

The National Sea Grant Law Center (NSGLC) is excited to announce the publication of Volume 11:1 of the Sea Grant Law & Policy Journal. This Special Edition of the Journal is the culmination of the NSGLC’s recent project on offshore aquaculture. In 2019, the NSGLC received funding to plan and convene a collaborative learning workshop with legal scholars, federal Executive agency staff, Congressional staff, industry representatives, and academics to tackle the uncertainty surrounding security of tenure for offshore aquaculture operations. The “Exploring Options to Authorize Offshore Aquaculture” virtual workshop consisted of two 3-hour workshop sessions held over the course of two days, May 12-13, 2020.

The first article by NSGLC Director Stephanie Otts provides an overview of the project as a whole, virtual workshop, and NSGLC’s key takeaways from the workshop. A key issue at the workshop was whether a lease or permit should be used to authorize offshore aquaculture operations, as some workshop participants advocated for a lease on the assumption that a lease would be a protected property right under the law. Among the key findings in this first article is that the extension of traditional terrestrial property rights into the ocean space is legally complicated and the characteristics of the instrument authorizing offshore aquaculture matters more than whether the instrument is called a permit or a lease.

The second article, Exploring Options for Granting Property Rights to Offshore Aquaculture Operations in the Exclusive Economic Zone by NSGLC Ocean & Coastal Law Fellow Zachary Klein, was adapted from a document that was prepared to inform discussion at the workshop. The article provides an extensive review of the respective international, federal, and state legal frameworks applicable to aquaculture in the U.S. EEZ. The international discussion highlights the regulatory approaches taken by two of the world’s biggest aquaculture-producing nations, Norway and Chile. The article also examines proposals that are currently under consideration—either by the U.S. Congress or by the academic community—as to how offshore aquaculture in the U.S. should be authorized moving forward. Finally, the article concludes with a discussion of the applicability of the various models identified to the federal authorization of offshore aquaculture, including lessons that can be learned therefrom.

Two NSGLC students authored the third article, One Step Forward, Two Steps Back: NOAA’s Assertion of Jurisdiction over Aquaculture Faces Continuing Challenges. Sierre Anton, a law student at the University of Mississippi School of Law and Katherine Hupp, a law student at the Florida State University College of Law, provide an overview of the current regulatory framework for marine aquaculture operations, with particular attention paid to the role of NOAA in the permitting process. The article also discusses NOAA’s Aquaculture Opportunity Area initiative and several assertions of authority over marine aquaculture that NOAA has made, including special permits to authorize aquaculture operations in Hawaii, an aquaculture fishery management plan by the Gulf of Mexico Fishery Management Council, and efforts to develop an aquaculture program in the Pacific Islands Region. The article concludes with some thoughts on the legal questions that NOAA may face as it continues to assert jurisdiction over aquaculture.

The next two articles provide perspective from outside authors. In A Comparative Analysis of Maryland’s Public Participation Framework in Commercial Shellfish Aquaculture Leasing: Standing to Present Protests, Elissa Torres-Soto, a Maryland Sea Grant Legal Fellow, discusses the process for protesting aquaculture leases in Maryland and compares the Maryland process to processes in Oregon and Texas. Of particular interest to the workshop’s discussion of whether a lease or permit is needed, Ms. Torres-Soto’s article notes straight away that though the term lease is used in Maryland, the state’s highest court has consistently interpreted oyster leases to be conditional licenses, revocable at will.

Varad Dabke, a University of Georgia School of Law student and Georgia Sea Grant Law Fellow with the Carl Vinson Institute of Government, provides a broad overview of the role takings can play in marine aquaculture operations. In Regulatory Takings in Aquaculture, he briefly explores the origin and evolution of the takings clause, and in particular, regulatory takings. The article also examines instances of takings litigation in three different states, the outcomes of which will be instructive as the aquaculture industry opens itself to new regulatory challenges.

The Special Edition concludes with an article co-authored by the NSGLC staff who worked on the project—Stephanie Otts, Zak Klein, and myself. The article, Security of Tenure for Offshore Aquaculture: A Comparative Analysis of Property Rights Conferred by Management Regimes for Commercial Activities on Federal Lands, discusses the thinking behind a comparative analysis prepared by the NSGLC for the virtual workshop, as well as key takeaways from the analysis. The comparative analysis revealed, for example, that the 25-year permit term proposed in the AQUAA Act would be a significant deviation from standard terms for both permits and leases for a variety of commercial activities on federal lands. The analysis also revealed that all of the authorization instruments examined are generally transferable with minimal government oversight and there is at least one example of the terms permit and lease being used almost interchangeably to grant almost identical rights. The comparative analysis illustrates that permits and leases exist along a spectrum, with some instruments referred to as permits having characteristics traditionally associated with leases and vice versa.

The NSGLC hopes that this Journal edition informs those interested in the regulation of offshore aquaculture, as well as discussions on the topic moving forward. The NSGLC is also extremely proud of the work on this project. When it wrote and submitted the project proposal in 2018, the NSGLC anticipated that this would be an in-person workshop. While the move to a virtual workshop was challenging, this Journal edition demonstrates the effort and determination of the NSGLC to hold this important discussion during the COVID-19 pandemic, as well as the impressive amount of research its attorneys performed while working remotely in isolation.