DeVoe Marine Aquaculture Regulation in the United States: Environmental Policy and Management Issues M. Richard DeVoe South Carolina Sea Grant Consortium 287 Meeting Street Charleston, SC 29401 Ph: (803)727-2078; FAX: (803)727-2080; [email protected] ABSTRACT The U.S. marine aquaculture industry is extremely young. While catfish and trout cul- ture have existed for many decades, the cultivation of species in marine and coastal envi- ronments has only emerged within the last 30 yr. Only 15% of total domestic aquaculture production in 1991 consisted of marine species, with oysters representing 80% of marine aquaculture production. The U.S. marine aquaculture industry has not kept pace with the growth of the world industry. One major reason for this slow growth is the absence of a unified federal and state policy and regulatory framework for U.S. marine aquaculture. According to a 1983 study commission by the Joint Subcommittee on Aquaculture, as many as 11 federal agencies are directly involved in regulating aquaculture, and another 10 are indirectly involved. However, only a limited number of direct permitting and licensing requirements are imposed by federal agencies. Thirty-two state regulatory programs were examined and it was discovered that over 1,200 state laws were found to have some signifi- cant bearing on aquaculture operations. The majority of laws and regulations that specifi- cally authorize, permit or control aquaculture are usually found at the state level. A review of the current literature suggests that neither the federal nor state regulatory situation has improved since 1983. An examination of South Carolina policy and regulatory actions was undertaken to assess the regulatory and institutional status of marine aquaculture. The state has adopted a strategic plan for aquaculture development, published an interim guidebook to aquaculture permitting, established a state aquaculture permit, and amended and passed legislation on specific industry needs. While South Carolina is viewed by many as having made significant strides in minimizing regulatory and institutional constraints, the growth of marine aquaculture in the state remains slow, and reflects the situation across the country. A number of strategies to remove the barriers marine aquaculture faces have been offered; however, without the development of an overall policy framework at the federal and state level, the potential of marine aquaculture to fulfill the country’s seafood needs will remain unrealized. INTRODUCTION est agricultural import, second overall to petroleum (JSA 1993). Each year, Americans consume more than $800 Aquaculture in the United States has the potential to million of foreign-grown aquaculture products. Obviously, become a major growth industry in the 21st century. Glo- domestic aquaculture production has not grown at a rate bal seafood demand is projected to increase 70% by the necessary to offset the consumer demand for seafood. year 2025 (Joint Subcommittee on Aquaculture, JSA 1993). Nevertheless, the development of the U.S. aquaculture With harvests from captive fisheries stable or in decline, industry is felt to be vital to the future of the nation be- aquaculture would have to increase production by 700% cause it promises to produce: (1) high quality seafood to to a total of 77 million metric tonnes annually to meet the replace that supplied through the harvests of wild stock in projected demand (JSA 1993). If there is the same type of decline or at maximum sustainable yields; (2) products growth in aquaculture production over the next seven yr for export to help reduce the country’s foreign trade defi- as there has been in the last seven, by the end of the 20th cit; (3) stock enhancement of important commercial and century aquaculture could be supplying upwards of 25% recreational fisheries species; (4) economic development of all the seafood consumed in the United States (Harvey opportunities for rural and suburban communities; and (5) 1994). new employment opportunites for skilled workers (Na- The United States currently imports more than 60% of tional Research Council, NRC 1992). its fish and shellfish, representing a total of $9 billion an- During 1990-1991, the U.S. aquaculture industry and nually (JSA 1993). Seafood products are the nation’s larg- 1 UJNR Technical Report No. 24 its supporting services accounted for 300,000 full-time jobs aquatic environment will not reduce the quality of the with a direct and indirect economic impact of $8 billion waters where the species are being cultured. (JSA 1993). For every additional 5 million kg of domestic (2) Access to the Aquaculture Site: In choosing sites, the aquaculture production, 1,300 additional jobs could be industry must consider an array of environmental and created on the farms and in related industries (NRC 1992). operational factors. Marine aquaculture typically requires both an aquatic environment and an adjacent on-land MARINE AQUACULTURE IN THE UNITED STATES base of operation. In choosing sites, the industry may have to obtain permission, rent, lease or purchase out- The U.S. marine aquaculture industry is extremely right the adjacent land to assure access to the site. young. While catfish and trout culture have existed for (3) Assertion of Exclusive Fishing and Culturing Rights: many decades, the cultivation of marine species has Laws in most states provide the public with the right emerged only over the last 30 yr. In 1991, total domestic aquaculture production was 398 x 106 kg with a value of to use state waters for navigation, recreation and fish- $727 million; only 15% (= 47 x 106 kg at $119 million) ing. However, various methods of aquaculture used now and proposed for the future may require exclu- was produced by the marine aquaculture industry (Sandifer sive use of coastal or ocean waters. Such exclusive 1994). Eighty percent of the nation’s marine aquaculture use could consequently deny to some degree the use yield was represented by oyster production and 12% by of the area by traditional users. salmon production. Forty-eight species made up the re- (4) Financial Investment: Establishment of aquaculture maining 8% (NRC 1992). The U.S. marine aquaculture operations may require a significant financial commit- industry is relatively small, but it remains vital since most ment; however, aquaculture as an industry is viewed of the huge seafood deficit in fishery products comes from by investors as a high risk activity for many reasons. the importation of marine, not freshwater, seafood The availability of funding through venture capital, (Sandifer 1994). Marine aquaculture is now practiced in public and private sector loans, or other sources will more than 80% of the states and territories of the United depend to a large extent on the anticipated stability of States. Nevertheless, cultivation of all marine species, ex- and the level of property rights to be vested with the cept oysters, is in the early stages of commercial develop- proposed operation. ment in the United States, and most operations have yet to (5) Government Commitment: In the case of marine aquac- achieve economic stability (NRC 1992). It goes without ulture, this requirement may be the most critical. Gov- saying that the U.S. marine aquaculture industry has not ernment must demonstrate its support by clearly de- kept pace with the growth of the world industry during the fining the term aquaculture, providing supporting last 25 yr (NRC 1992). policy statements, offering incentives (which do not The future for marine aquaculture in the United States necessarily have to be solely financial) to underscore is much less certain than that of its freshwater counter- its commitment, and defining and streamlining its regu- part. One serious problem is that most marine aquaculture latory and legal requirements. is conducted in shallow coastal and estuarine waters, which Further complicating the future of marine aquaculture are affected by increasing population pressures and indus- is the complexity that stems from unique factors that dis- trial and residential pollution and development. By the year tinguish it from other forms of agricultural activity, in- 2010, 70% of the total population of the United States will cluding: (1) the interaction of marine aquaculture with other live within 120 km of the coast (Culliton et al. 1990). In marine and coastal activities and interests—interactions addition, whereas the transition from fishing to aquacul- that are often characterized by conflict; (2) the fact that ture in freshwater systems is analogous to that of hunting although marine aquaculture is ocean-based, it depends to farming, marine aquaculturists face an additional hurdle: on the use of land and freshwater resources as well; and the fact that they have no property interest in the “lands” (3) the numerous environmental and regulatory consider- they need (Nixon 1994). Because the ocean has tradition- ations involved in the development and use of coastal zone ally been viewed as a common property resource, there land and water resources, usually held in the public trust are also conflicts with other commercial and recreational (NRC 1992). users which may slow or prevent the development of ma- The purpose of this paper is to review the key institu- rine aquaculture (Harvey 1994). tional and regulatory issues related to marine aquaculture Growth of the domestic marine aquaculture industry is development in the United States, critically examine these dependent upon the attainment of five basic requirements issues in more detail through a case study analysis of the (DeVoe and Mount 1989): situation in the state of South Carolina, and to explore (1) High Water Quality Locations: The availability and possible remedies that may alleviate constraints on and maintenance of a high water quality environment is a provide for a more orderly development of the marine primary need for aquaculture. The industry must be aquaculture industry. assured that current and future uses of the surrounding 2 DeVoe REGULATION OF THE MARINE coordinators, industry representatives and extension spe- AQUACULTURE INDUSTRY cialists, Sandifer (1994) found that only nine out of the CHARACTERISTICS OF THE INDUSTRY country’s 24 coastal states and five territories reported moderate growth of marine aquaculture, while 12 reported To understand the problems that confront U.S. marine very slow growth and eight no growth. Asked to identify aquaculture, the basic nature of the industry must first be the major factors responsible for this situation, the respon- reviewed. Marine aquaculture represents a relatively new dents indicated that of 12 limiting factors, the top three use of the nation’s coastal resources, and it must compete were use conflicts (92%), permitting (92%) and the regu- for access to those resources (Nixon 1994). Newcomers latory environment (88%) (Sandifer 1994). to the industry, as well as local authorities, suffer from a Regulations and permitting have often been identified lack of experience, in- appropriate advice on site selec- as the principal impediment to the growth of marine aquac- tion, inadequate evaluation of market opportunities and ulture (McCoy 1989, JLSA 1989, Zieman et al. 1990, product diversification, and a lack of understanding of Hopkins 1991, NRC 1992). But it is the underlying issues marine aquaculture development in relation to other forms that underscore the problem. The NRC (1992) identified of competition (Chamberlain and Rosenthal 1995). Much eight issues that have contributed to the current situation: of this confusion stems from its uniqueness and complex- (1) difficulties and costs of using coastal and ocean space; ity. (2) public concerns about environmental effects of wastes Marine aquaculture requires a site of operation, includ- on water quality; (3) conflicts with other users of the coastal ing upland and water-based locations. Issues of land use zone; (4) increasing population with concomitant increases and zoning, exclusive use of public lands and waters, and in pressures on coastal areas; (5) limited number of sites navigation and use conflicts must be addressed. Species with suitable water quality; (6) objections from coastal cultured in a marine environment continue to raise con- property owners to marine aquaculture installations on cerns regarding the protection of native wild stocks, im- aesthetic grounds; (7) broad ecological issues, including portation and use of non-indigenous species, aquatic ani- concerns about genetic dilution of wild stocks and trans- mal health, use of drugs and chemicals, and ownership of fer of diseases through the transport and escape of cul- the cultured organisms. Additionally, the effects marine tured animals; and (8) limited understanding of the bio- aquaculture may have on the aquatic environment must logical criteria needed for the design of viable systems. also be addressed. Use conflicts represent one of the primary issues ma- Much has been published over the last 10 yr on the rine aquaculturists in the United States must face and are environmental impacts of marine aquaculture (see, e.g., likely to become more pronounced and frequent in the fu- Ackefors and Sodergren 1985, Weston 1986, Rosenthal et ture (Chamberlain and Rosenthal 1995). DeVoe et al. al. 1988, DeVoe 1992). However, ecological concerns had (1992) found through a survey of the marine aquaculture been raised by a number of authors a decade earlier (see industry and state regulatory agencies that the competing Odum 1974, Ackefors and Rosen 1979). For instance, three use of the coastal zone by recreational users, commercial major impacts were identified by Odum (1974): aquacul- fishermen and developers was frequently encountered. The ture as a pollution source, the introduction of exotics and escalating costs of acquiring access to coastal lands and physical alteration of the environment. The latter has not waters in the country exacerbate the problem. While Ja- emerged as a critical issue, although these alterations could pan continues to focus use of its coastal and marine re- involve changes in circulation patterns within estuaries, sources on food production, the United States has not made increased sedimentation from poorly designed dredging this commitment. As a result, marine aquaculture’s place and filling, interference with freshwater input to the estu- among the many uses of the coastal zone in this country is ary, destruction of productive land peripheral to the estu- as yet undefined. ary, and permanent removal of productive estuarine areas (Odum 1974). One of the challenges to the marine aquac- THE LEGAL AND REGULATORY STRUCTURE ulture industry in the United States will be the success (or failure) of addressing environmental sustainability issues The current regulatory environment for marine aquac- (Chamberlain and Rosenthal 1995). ulture in the United States is a major constraint to its de- velopment (NRC 1978, 1992; JSA 1993). No formal fed- COASTAL ZONE CONFLICTS eral framework exists to govern the leasing and develop- ment of private commercial aquaculture activities in pub- While culturists, scientists and resource managers face lic waters (NRC 1992). For instance, because commercial the task of resolving these issues through research studies, aquaculture is in the early stages of development, regula- monitoring programs and technical assistance support, the tors have tended to classify fish farming as an industrial marine aquaculture industry continues to deal with its activity requiring water treatment different from other “growing pains.” In a recent survey of state aquaculture 3 UJNR Technical Report No. 24 forms of agriculture (Ewart et al. 1995). These factors, comprehensive regulatory plan which satisfactorily bal- along with a general unfamilarity with aquaculture pro- ances economic development and environmental protec- duction technologies, waste characteristics and their im- tion. As a result, regulations governing aquaculture are pact on different categories of receiving waters have pre- scattered throughout state statutes and do not necessarily cluded the development of uniform standards and policies fit aquaculture (Breaux 1992). Complicating matters is the based on technical data and environmental risk assessment fact that existing permit programs do not have provisions (Ewart et al. 1995). for determining the capacity of the coastal and estuarine In a 1981 study commissioned by the U.S. JSA of the system for aquaculture, land-based or in situ (deFur and Federal Coordinating Council on Science Engineering and Radar 1995). Technology, the Aspen Corporation examined the federal Major aquaculture problems that arise from state laws and state regulatory framework for aquaculture (Aspen and regulations are caused by the lack of uniformity of Corp. 1981). As many as 11 federal agencies are directly laws among the states, the shear number of permits, li- involved in regulating aquaculture and another 10 are in- censes and certifications that must be obtained, and the directly involved. However, only a limited number of per- difficulty in obtaining them (NRC 1978, 1992). Each state mitting and licensing requirements are directly imposed has its own unique legal, political and economic climate by federal agencies. More characteristic are federal agency for aquaculture, and culturists must navigate the regula- programs that indirectly regulate fish farmers (e.g., restric- tory environment differently in each. Only a few states tions on drug use, federal laws administered by states, etc.). have developed the information management capability Some 50 federal statutes (with accompanying regula- to present the applicant with a comprehensive list of all tions) were found to have a direct impact on the aquacul- the legal requirements that must be met. State regulatory ture industry, although the actual number of statutes that programs can be and are usually more restrictive than fed- affect an individual operation will vary depending on its eral guidelines and regulations dictate. The result is that size, site location, the species being cultured and other fac- state agencies vary greatly as to what standards they apply tors. In total, over 120 statutory programs of the federal to aquaculture (McCoy 1989), and some still apply laws government were found to significantly affect aquaculture designed for other applications such as those for public development. Slightly one-half require a direct compli- fisheries management (NRC 1978, 1992). ance response from the fish farmer. Another limitation to the current regulatory regime for The majority of laws and regulations that specifically marine aquaculture in the United States is the lack of long- authorize, permit or control aquaculture are usually found range and whole system planning (deFur and Radar 1995). at the state level. The study examined 32 state regulatory Aquaculture policy appears to be made by granting per- programs and discovered that over 1,200 state laws have mits on a case-by-case basis (Rubino and Wilson 1993), some significant bearing on aquaculture operations. Poli- and the requirements are often determined using regula- cies and regulations were found to affect aquaculture in tions and technical standards not originally developed or eight major areas: aquaculture species use; water quality; intended for aquaculture (Ewart et al, 1995). Each permit water use; land use; facility and hatchery management; is considered individually by the issuing agency, usually processing; financial assistance; and occupational safety with no provision for examining cumulative impacts (deFur and health. and Radar 1995). The complexity that results from the involvement of A final regulatory issue limiting marine aquaculture’s many federal, state and local agencies responsible for all growth is the time and cost involved in obtaining permits aspects (including advocacy, promotion, conduct and regu- and licenses. According to McCoy (1989), it may take some lation) of marine aquaculture leads to an array of planning four yr or more to obtain the necessary permits for startup. acts, policies and regulations (NRC 1992). Federal laws A prospective aquaculture operation could be required to are applied differently in various geographic regions of spend over $100,000 in legal and consultant fees to obtain the country (NRC 1978), and the industry remains con- permits (McCoy 1989). For instance, the first applicant cerned about the lack of coordination among agencies regu- for an NPDES (National Pollutant Discharge Elimination lating aquaculture (JSA 1993). Unfortunately, the federal System) permit spent $150,000 for environmental assess- government has yet to make any significant headway in ments and legal fees relating to the processing of his per- reducing regulatory constraints (McCoy 1989). mit (Zieman et al. 1990). Federal agencies which establish the “ground rules” that most state agencies must follow have adopted vague, con- SOUTH CAROLINA: A CASE STUDY MARINE fusing and poorly conceived regulations, or none at all AQUACULTURE IN SOUTH CAROLINA (McCoy 1989). This translates into inconsistencies in the South Carolina is well suited for aquaculture develop- development and application of laws and regulations at ment. Along the coast, the state’s 80,000 ha of estuarine the state level (deFur and Radar 1995). Few states have a 4 DeVoe Table 1.Aquaculture production (in kg) and ex-pond value (in $U.S.) of selected species by South Carolina commercial producers from 1989 to 1994. Pounds of: 1989 1990 1991 1992 1993 1994 Catfish 15,331 101,650 132,857 54,567 136,078 183,433 Crawfish 21,545 18,144 18,144 19,278 13,608 11,340 Hybrid striped bass N/A 259 5,080 22,680 4,672 11,340 Marine shrimp 12,424 33,371 26,281 38,038 49,895 45,359 Hard clams * * * * DNA DNA Value of: Catfish 236,000 2,569,000 1,788,000 796,000 2,100,000 3,154,000 Crawfish 589,000 400,000 600,000 595,000 645,000 525,000 Hybrid striped bass N/A 18,810 336,000 1,125,000 252,400 662,000 Marine shrimp 753,600 1,839,300 1,419,500 1,928,800 2,300,000 3,000,000 Hard clams * * * * DNA 900,000 DNA = data not available area, 30,000 ha of wetland impoundments and over 4000 lars, on the state’s economy by the year 2000. km of tidal creeks are potentially available as production South Carolina has demonstrated its commitment to sites (JLSA 1989). Its coastal waters are of high quality; aquaculture development in a number of ways. The S.C. 79% are designated as suitable for shellfish harvesting General Assembly stated in 1985 that “aquaculture has the (Knowles 1988). The mild climate makes the culture of potential for augmenting existing commercial and recre- warm-water species feasible. ational fisheries and for producing other renewable re- The true emergence of aquaculture as a viable industry sources, thereby assisting the state of South Carolina in in South Carolina occurred in the early 1980s with com- meeting its food needs and contributing to the reduction mercial production of cultured species of penaeid shrimp of foreign seafood imports into South Carolina and the (Penaeus spp.), catfish (Ictalurus punctatus) and crawfish United States. It is, therefore, in the state’s interest, and it (Procambarus spp.). Since that time, hard clam is the state’s policy, to encourage the development of aquac- (Mercenaria mercenaria) and striped bass (Morone ulture in South Carolina” (Title 2, Chapter 22, Amend- saxatilus) hybrid aquaculture have developed. The state’s ments, S.C. Code of Laws). Joint Legislative Subcommittee on Aquaculture (JSLA) In addition, a major financial contribution was made (1989) identified spotted seatrout (Cynoscion nebulosus), by the state to fund the construction and operation of the redfish (or channel bass, Sciaenops ocellata), sturgeon $4 million James M. Waddell, Jr. Mariculture Research (Acipenser spp.), blue crab (Callinectus sapidus), bay scal- and Development Center. The Center, which includes a lops (Argopecten irradians) and the American oyster 929 m2 research building, a 242 m2 maturation building, a (Crassostrea virginica) as prime marine aquaculture can- 2,323 m2 outdoor tank pad and 25 experimental ponds didates. ranging in size from 0.13 ha to 2.5 ha serves as a major Table 1 illustrates annual production (in kg) and ex- focal point for mariculture research and technology trans- pond value (in $U.S.) of selected species produced by fer programs in the state and region. South Carolina’s private commercial aquaculture indus- In the 10 yr since the state formalized its position in try since 1989. Production is dominated by freshwater spe- support of aquaculture, a number of efforts have been un- cies, although marine shrimp has become a major compo- dertaken to enhance the growth of the industry. Neverthe- nent by value of the industry. Hard clam aquaculture pro- less, aquaculture development, particularly in the marine duction has been minimal until 1993, the year that Atlan- and coastal regions of the state, continues to be limited by tic LittleNeck ClamFarms (ALC) produced its first com- the complex regulatory structure, user conflicts and the mercial harvest. The ALC expects to culture and market frequent emergence of unanticipated issues. The regula- some 25 to 30 million clams in 1995 (J.J. Manzi, per tory structure and permitting process for marine aquacul- commun.). According to Rhodes (1993), South Carolina ture in South Carolina are briefly reviewed below to illus- aquaculture could have a $17 million impact, in 1992 dol- trate these issues. 5 UJNR Technical Report No. 24 REGULATION OF MARINE AQUACULTURE IN cies involved and their general lack of knowledge of the SOUTH CAROLINA industry. Twelve agencies and divisions of state govern- ment are involved in the regulation of marine aquaculture, Marine aquaculture represents a fairly new use of the concerned with the use of state lands and navigable wa- coastal resources in South Carolina. Its success is predi- ters, protection of water quality and quantity, use of aquatic cated on the use of a variety of natural resources. Local, organisms, including exotic species, and other issues (Table state and federal regulatory agencies seek to allocate these 3). Prior to state government restructuring in 1993, the natural resource needs through a permitting system. In S.C. Coastal Council and the S.C. Water Resources Com- theory, by incorporating both agency and public comment mission were responsible for managing all state lands and in the permitting process, the interests of the aquacultur- waters in the public trust, and regulating the nature and ist, other resource users and the general public can be con- location of water-dependent structures. The S.C. Depart- sidered in decision-making (JLSA 1989). ment of Health and Environmental Control (SCDHEC) LOCAL LEVEL implements the provisions of the National Pollutant Dis- charge Elimination System and the Section 401 Water As previously mentioned, many of the regulations that Quality Certification Program, as established by the U.S. affect aquaculture are found at the state level. This is not Environmental Protection Agency under the Clean Water to say that local, municipal and federal laws and policies Act of 1977 and its amendments, and is also responsible are significant, however. Towns, cities and counties have for maintaining shellfish sanitation standards. The S.C. responsibilities to their citizens to provide orderly devel- Wildlife and Marine Resources Department (now the S.C. opment and police power protection. However, most do Department of Natural Resources; see below) regulates not formally recognize aquaculture per se and, in many the use of the state’s tidal mud flats and bottoms for the cases, have a difficult time determining where it falls within placement of aquaculture structures, and is responsible for their master plans and zoning regulations. Indeed, some all finfish and shellfish permits (for red drum, spotted local governments consider aquaculture an agricultural seatrout, flounder, marine shrimp, hard clams and oysters), activity, while others may classify it as a commercial or boat and equipment permits, and dealer/processor licenses. even industrial enterprise. Even after attempts to educate Other state agencies are involved as well (see Table 3). local governing boards and citizens, aquaculturists may Another factor that has added to the complexity of the still face major obstacles in some communities due to con- state’s aquaculture regulatory process is the division of cerns about water quality, aesthetics and overall quality of agency responsibilities over permitted activities in public life issues. waters. The state is divided into three permitting zones: FEDERAL LEVEL Zone A represents the inland portion of the state exclud- At the other end of the spectrum, seven federal agen- ing the eight coastal counties; Zone B represents areas cies have regulatory programs that directly affect the ma- within the eight coastal counties excluding the “critical rine aquaculture industry: the U.S. Army Corps of Engi- area;” and Zone C represents the “critical area” (Fig. 1). neers, the U.S. Environmental Protection Agency, the U.S. The “critical area” is defined by the S.C. Coastal Manage- Fish and Wildlife Service, the U.S. Food and Drug Ad- ment Act of 1977 to include all coastal waters, tidelands, ministration, the U.S. Department of Agriculture, the U.S. beaches and primary oceanfront sand dunes seaward of a National Marine Fisheries Service, and the U.S. Coast boundary line as determined by the state’s coastal zone Guard (Table 2). Federal oversight of the marine aquacul- management agency (Section 48-39-10 et seq., S.C. Code). ture industry is fragmented; there is no overall federal Prior to 1994, the S.C. Water Resources Commission had framework to address aquaculture development in the sole responsibility for permitting in Zone A and the S.C. coastal zone. Further, while recent evaluations of marine Coastal Council was solely responsible in Zone C. Pro- aquaculture suggest that offshore locations may represent posed activities in Zone B required an applicant to obtain a viable alternative (NRC 1992), no formal policies have a permit from the S.C. Water Resources Commission and been developed to manage aquaculture development in the a certification from the S.C. Coastal Council that the ac- U.S. Exclusive Economic Zone. As a result, existing fed- tivities were consistent with the policies of the state’s eral policies vary from one agency to another (and may Coastal Zone Management Plan. If certification was de- even differ among divisions within the same agency) and nied, the permit could not be issued. Therefore, the loca- the permitting process can be time-consuming and quite tion where an aquaculture operation was proposed dictated confusing. the regulatory process to be followed and the agencies to be involved. STATE LEVEL In addition to the confusion concerning South Carolina’s The complexity of the permitting process in South Caro- permitting process, the costs in money and time to obtain lina for marine aquaculture lies in the diversity of agen- requisite permits, licenses and certificates has constrained 6 DeVoe Table 2.Federal (U.S.) agencies with regulatory programs that impact the marine aquaculture industry (adapted from Breaux 1992). Agency Regulatory Responsibility U.S. Army Corps of Engineers (COE): *Section 10 Permit - required for any structure and work in or affecting navigable waters (Rivers and Harbors Act of 1899, 33 U.S.C.403) *Section 404 Permit - required for the discharge of dredge or fill material into U.S. waters including wetlands (Clean Water Act, 33 U.S.C. 1344, Section 301). Before this per- mit can be issued, a certification from the responsible state agency is required stating taht the proposed activity would not cause a violation of the state’s water quality standards. U.S. Environmental Protection Agency (EPA): *National Pollutant Discharge Elimination System (NPDES) - prohibits the discharge of any pollutant from any “point source” into the waters of the U.S. without a permit from the state agency administering the Elimination Act within the state (S.C. Department of Health and Environmental Control, SCDHEC). *Use and Application of Pesticides - through the registra- tion and establishment of tolerance levels. Approvals and possibly permits may be required from EPA and SCDHEC. *Commenting agency on COE permit applications. U.S. Fish & Wildlife Service (FWS): *Fish and Wildlife Import and Export License - required for anyone who imports or exports animals or fish for the purposes of propagation or sale with a value of more than $25,000 a year. *Commenting agency on COE permit applications. U.S. Food & Drug Administration (FDA): *Drug reglations - affect the use of chemicals as additives to feed as well as chemicals used for the treatment of dis- ease and parasite infections. Separate approval for drug or chemical use for each species cultured is required. U.S. Department of Agriculture (USDA): *Vaccine regulations - approval of all vaccines uìed in an aquaculture operation must be obtained. Very few vaccines are registered for use in this manner, due to the time-con- suming and costly process. Again, each vaccine must be separately certified for each species. U.S. National Marine Fisheries Service (NMFS): *Fisheries regulations - can affect the potential of marine aquaculture in the nation’s exclusive economic zone. *Commenting agency on COE permit applications. U.S. Coast Guard (USCG): *Protection of Navigation - including the marking of any structure located in navigable waters of the United States. 7 UJNR Technical Report No. 24 Table 3.South Carolina natural resources agencies involved in regulating aquaculture development (prior to agency reorganization in 1994). Function Agencies State lands and navigable waters: 1.S.C. Coastal Council - “Critical Area” Permit (Zone C) - Coastal Zone Certification (Zone B) 2.S.C. Water Resources Commission - Navigable Water Permit (Zone A) 3.S.C. Land Resources Conservation Commision - Stormwater Management Permit Protection of water resources: 1.S.C. Dept. of Health & Environmental Control (Water Pollution Control) - Construction Permit - National Pollution Discharge Elimination System Permit - Section 401 Water Quality Certification 2.S.C. Water Resources Commision - Groundwater Use Permit Use of aquatic organisms: 1.S.C. Wildlife & Marine Resources Dept. (Marine Resources) - Shellfish/Mariculture Permit - Mariculture Finfish Permits - Mariculture Shellfish Permits - Shellfish Harvesting Permit - Harvesting Equipment Permits - Dealer/Processor Licenses 2.S.C. Wildlife & Marine Resources Dept. (Freshwater Fisheries & Wild- life) - Gamefish Breeder’s License 3.S.C. Wildlife & Marine Resources Dept. (Executive Office) - Importation of Exotic Species Permit - Hybrid Striped Bass Aquaculture Certificate and Permits 4.S.C. Dept. of Health & Environmental Control (Water Pollution Control) - Shellfish Sanitation Certificates and Permits Other: 1.S.C. Department of Archives and History - Protection of Archeological Sites and Artifacts 2.State Attorney General’s Office - Determination of Clear Title to “Private” Submerged Lands (e.g., coastal wetland impoundments 3.S.C. Dept. of Agriculture - Inspections of Processing Facilities to Ensure Compliance with Good Manufacting Practices the industry as well. An applicant can spend over $2,800 under the state’s Pollution Control Act (Act No. 1157, in one-time application fees and $5,300 in additional fees Chapter 1, Title 48, S.C. Code). The normal processing and rents annually. If water quality monitoring, legal as- time for an NPDES permit is stated to be approximately sistance and consultants are necessary, these costs can be two months; however, if a public hearing is necessary or 10 to 20 times more expensive (Table 4). Just as consum- the permit is adjudicated, the processing time could be ing is the time it can take for permit applications to be extended (Fig. 2). Nevertheless, NPDES permitting for processed and agency decisions to be made. aquaculture facilities in South Carolina continues to be a The NPDES permitting process in South Carolina is a source of contention between the SCDHEC and the aquac- case in point. Administered by the SCDHEC, an NPDES ulture industry (DeVoe 1994). The S.C. Farm Bureau con- permit is required from any “person discharging or pro- tinues to identify it as one of its top policy concerns [and posing to discharge wastes into the waters of the state...” has each year since 1986 (DeVoe 1994, J. Whetstone, pers. 8 DeVoe Table 4.Terms and costs of permits for aquaculture in South Carolina. Permit Term Fee Notes Local permits One time/annual $200-500 Fees, licenses Federal permits One time $100 Application fee State permits Navigable waters permit One time $500 Application fee Critical area permit (in CZ) One time $200 Application fee Section 401 certification One time $500 NPDES permit (discharge) Annual $400-2400 Stormwater management permit One time £ $1000 Shellfish/mariculture permit One time $25 Application fee Annual $5/ac Up to 500 acres Hybrid striped bass permit Annual $100 First year plus $25 annually thereafter Shellfish harvesting license Annual $25.50 Boat license Annual $20 Boats <18 ft $25 Boats >18 feet Equipment license Annual $10 Each piece Wholesale seafood dealer license Annual $50 Land and sell license Annual $25 Other costs: Water quality monitoring Annual $varies Required under NPDES Legal fees One time $varies Hourly fee Consultants One time $varies Hourly fee commun.)] due to two primary issues: (1) the time it has was established to offer advice and information to the Joint actually taken SCDHEC to review and render decisions Committee. Also called for was the development of a state- on NPDES permits for aquaculture has averaged four wide aquaculture plan. Thus the process by which the state months or more; and (2) the annual fees for an NPDES began to respond to the needs of the aquaculture industry permit have increased from a range of $200 to $800 in was underway; the critical analysis presented below of 1992 (depending on the discharge volume and number of these actions and their impact on the industry suggests to “pipes”), to $400 to $1,600 or higher in 1995. this author that the state of South Carolina, while being acknowledged as having made “significant progress in STATE RESPONSE TO ADDRESS MARINE streamlining the regulatory and permitting constraints af- AQUACULTURE REGULATORY ISSUES fecting aquaculture” (Breaux 1992), still has much to ac- Prior to 1985, when marine aquaculture was beginning complish. to emerge, there were no state policies or programs in place DEVELOPMENT OF AN AQUACULTURE PER- to ease the burdens facing the industry. Since that time, MITTING GUIDEBOOK several policy actions have been initiated by the General Assembly and state agencies to address the regulatory com- The regulatory and permitting maze that faced prospec- plexity and limiting nature of the administrative and bu- tive aquaculturists in South Carolina during the early 1980s reaucratic structure of the state. As noted above, the S.C. was overbearing for three reasons. First, no regulatory General Assembly did pass legislation in 1985 which for framework existed for the aquaculture industry. Second, the first time acknowledged the existence and potential of the permitting agencies did not understand the industry or the fledging aquaculture industry (Chapter 22, Title 2, S.C. the regulatory requirements necessary to balance the needs Code). A Joint Legislative Committee on Aquaculture was of the industry with other users. Third, there was no single, formed to foster needed legislation through the S.C. Gen- consolidated source of information available on the regu- eral Assembly and an Interagency Advisory Staff Group latory process. As a result, the industry had no guidance in 9 UJNR Technical Report No. 24 1. e r u g Fi 10