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Aquaculture, the practice of farming shellfish, finfish, and plants in water, has existed for thousands of years. In the United States, however, aquaculture has a much shorter history and has only recently been recognized to have significant economic potential. In light of recent dramatic management failures in capture fisheries, leading to collapses of some wild fish populations, many have begun to view aquaculture as an efficient, reliable alternative means to satisfy rising consumer demand for fish and to create new jobs. It is now the fastest growing agricultural sector in the United States. Operators of aquaculture operations in the United States have to date limited their activities to freshwater and near-shore coastal water sites, almost exclusively within both state and federal jurisdictions. As the industry continues to grow, it will likely expand into the open ocean, defined for purposes of this paper as federal waters in the Exclusive Economic Zone (EEZ) lying beyond state waters. State waters are generally defined as extending three miles from shore. The principal reasons for the likely expansion of aquaculture into the open ocean are: (1) to avoid conflicts with other human uses of the sea surface, water column and seabed; (2) to avoid regulation under state laws; (3) to have access to more consistently high water quality; and (4) to minimize regulatory compliance burdens generally by siting facilities where the effluents are more readily dispersed. The major factors currently limiting the expansion of aquaculture into the open ocean include the difficulty and high cost of engineering and building facilities able to withstand the more severe storm conditions encountered in the open ocean, the high cost of operating facilities far from shore, and the absence of a clear and environmentally protective federal regulatory framework. In addition, these factors have apparently made it difficult for developers to attract sufficient investment capital to construct and operate open ocean aquaculture facilities. This Article reviews the most significant environmental concerns raised by open ocean aquaculture; describes the key elements of the current federal framework of environmental laws regulating aquaculture in federal waters; highlights the deficiencies of this framework, partly by discussing actual open ocean aquaculture proposals; and suggests ways to improve the framework by making it both more protective of the environment and, by reducing uncertainty, less burdensome to open ocean aquaculture developers.



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