Key Takeaways

• What Is Happening? An increased focus on climate change and environmental stewardship is rapidly changing the legal and regulatory landscape affecting the fisheries and aquaculture industries, and agencies and legislators aim to address the challenges and opportunities that affect these industries.
• Who Is Impacted? Fishermen, seafood companies, fishing communities, and vessel owners will be most directly impacted by these rising trends. Ultimately, industries whose work relies in any way upon fisheries will be affected.
• What Should I Do? Stakeholders should continue to track such initiatives that may impact their short-term and long-term goals and operations.

Below is an in-depth discussion of the various trends affecting the fisheries and aquaculture industries.

Illegal, Unreported, and Unregulated Fishing Enforcement

Illegal, unreported, and unregulated fishing (IUU fishing) undermines national and international regulations that seek to sustainably manage ecosystems and ocean resources, thereby affecting the fishing industry as a whole. To counter the threats of IUU fishing, Congress passed the 2020 Maritime Security and Fisheries Enforcement (SAFE) Act, which among other things, created an Interagency Working Group composed of a number of member agencies, including the National Oceanic and Atmospheric Administration (NOAA), that play key roles in eliminating IUU fishing.

Members of the Interagency Working Group have continued their collaborative enforcement efforts as seen through the continuation of the Ocean Maritime Security Initiative led by the Coast Guard and Navy. The Department of Justice has also pursued cases recently in collaboration with other Interagency Working Group members. Some of these cases include:

• An IUU enforcement action in the Bahamas where a U.S. District Court in Key West required an individual to forfeit his new boat in restitution for capturing 529 pounds of reef fish without a license in Bahamian waters, and for previously selling illegally sourced fish.
• A federal grand jury indicted a fishing captain, a fishing dealer, and other affiliated individuals for their involvement in crimes including conspiracy, fraud, and obstruction of justice. The charges stemmed from the defendants’ catching, buying, and selling at least $250,000 worth of fish beyond the catch quota; failing to disclose accurate catch size to NOAA; and withholding certain documents sought by the federal grand jury.

These cases demonstrate the importance of accurately reporting catch sizes, understanding legal fish sourcing prior to purchase, and cooperating with the court. Such enforcement actions also depict an interagency approach to combatting IUU fishing which appears to be a growing trend in regulating the fisheries and aquaculture industry.

Ocean Plastics

With over 11 million metric tons of plastic entering the ocean each year, ocean plastics have been highlighted in both the international and domestic fora. In December 2017, the Third United Nations Environmental Assembly (UNEA-3) adopted a resolution focused on marine litter and microplastics in the ocean. The resolution established an Ad Hoc Open-Ended Expert Group to determine options for an international legally binding mechanism to combat ocean plastics and litter. 

This and other initiatives led to the goal of the development of a new plastics treaty. The Fifth United Nations Environmental Assembly (UNEA-5) in February 2021 continued to focus on green recovery including marine litter and plastics, starting with regional initiatives and requiring further international collaboration to develop a comprehensive plastics treaty. Such initiatives include targeting plastic waste resulting from fishing operations. While the plastics treaty has yet to be drafted -- preliminary discussions on a framework will begin soon -- a large part of the discussion will likely focus on combatting the issue of ocean plastics and litter.

On the domestic front, in December 2020, Congress passed the Save Our Seas Act 2.0 (Act) with bipartisan support. The Act not only requires the United States to collaborate on international agreements related to the issue of marine debris, but also provides grants to improve infrastructure for a more circular economy, and begins necessary research on microfibers, microplastics, plastic movement, certification of circular polymers, technology to address marine debris, and recycling of fishing gear and vessels. This research may aid the development of standards and terms for future plastics policy. Notably, the research required on derelict fishing gear and vessels within the Act aims to determine potential recycling solutions for such items, which can be a contributor to marine litter. The research could be used to establish future grants or financial incentives for the collection and recycling of derelict fishing gear and vessels.

Technology

As technology enhances, some stakeholders are voluntarily moving towards technologies and practices that seek to limit by-catch of non-target and endangered species including dolphins, sea lions, whales, sharks, and sea turtles. Governments are also attempting to encourage such advancements through legislation, including the “Driftnet Modernization and Bycatch Reduction Act” (Bycatch Act). This bill follows in the footsteps of a 2018 California law, seeking to improve fishing technology to reduce bycatch. Congress passed the Bycatch Act last year but President Trump vetoed the bill on January 1, 2021.

Senators Feinstein (D-CA) and Caputo (R-WV) in the Senate and Representatives Ted Lieu (D-CA) and Brian Fitzpatrick (R-PA) in the House reintroduced the bipartisan bill this year, with a version that again seeks to phase out the use of large-scale drift gillnets through a transition and grant program led by the Department of Commerce that would encourage the use of alternate technologies like deep-set buoy gear. Given the past history of the bill, it is likely this bill will pass if it comes to vote thereby impacting the use of current fishing technology.

Marketing Claims

Entities that seek to make environmental claims regarding their seafood or fisheries product must be sure that such claims are accurate and can be substantiated with data. The Federal Trade Commission’s (FTC) Green Guides provide guidance on what claims are and are not appropriate. For example, the Green Guides state that it is deceptive to misrepresent, directly or by implication that a product offers a general environmental benefit. Thus, unsubstantiated or unqualified claims that a product is “sustainable” or “eco-friendly” could trigger scrutiny. The FTC announced that it intends to review the Green Guides in 2022, which signals an increased focus on environmental marketing claims. Entities should review the Green Guides before making any specific environmental claim on a given product, especially once the Green Guides are updated in 2022. 

Conservation and Carbon Sequestration Areas

Early in his presidency, President Biden issued Executive Order 14008, which established a national goal to conserve at least 30% of U.S. lands and freshwater and 30% of U.S. ocean areas by 2030 (“30x30” goal). Pursuant to the Executive Order directive, many different departments produced a report that recommended the necessary steps to achieve the 30x30 goal. Notably, the report found that uses of lands and waters, including working lands, can be consistent with long-term health and sustainability; and that conservation efforts on all lands and water, not just public lands, are considered beneficial in achieving the 30x30 goal. This means that sustainable fishing operations already in place could be recognized as meeting the 30x30 goal. The increased focus on climate and conservation suggests that new regulations or legislation could potentially impact areas open to commercial fishing, or create additional conservation areas. Thus, it will be important to track legislation and regulations implementing this 30x30 goal to ensure that stakeholders within the fishing industry have the opportunity to participate in any rulemaking or legislative process.

In addition to the President’s 30x30 conservation goal, Congress introduced the “Blue Carbon Protection Act.” This bill would support carbon storage in the ocean through a broad set of initiatives. These initiatives include requiring NOAA to designate and protect “blue carbon areas of significance,” while also providing an annual $200 million to NOAA, the National Park Service (NPS), and the U.S. Fish and Wildlife Service (FWS) each for four years to conduct marine restoration and protection efforts focused on carbon sequestration. To carry out the Blue Carbon Protection Act, the bill would authorize an annual $16 million to NOAA for four years. Depending on the implementation of the bill—similar to the 30x30 initiative, blue carbon area designations could affect activities in those areas.

Nationwide Permits

During this past year, the U.S. Army Corps of Engineers (Army Corps) issued both modified and new Nationwide Permits (NWP) regarding commercial shellfish and fishing activities, which took effect on March 15, 2021. The Army Corps issued a final rule modifying and reauthorizing NWP 48, Commercial Shellfish Mariculture Activities, with the intent of remedying its alleged deficiencies, such as the Army Corps’ failure to adequately explain its finding that NWP 48 would have no significant impact, identified by a U.S. district court in prior litigation. It is unclear whether the modified permit will meet similar challenges.

The Army Corps also created two new related Nationwide Permits: NWP 55 Seaweed Mariculture Activities and NWP 56, Finfish Mariculture Activities pursuant to Executive Order 13921, Promoting American Seafood Competitiveness and Economic Growth. These two new permits, authorize, among other things, seaweed and finfish mariculture structures attached to the seabed on the outer continental shelf. The Army Corps created these two new permits because NWP 48 activities occur mostly in nearshore waters, whereas NWP 55 and 56 can be used to authorize activities in both nearshore waters and federal waters on the outer continental shelf. 

Beveridge & Diamond's Fisheries and Aquaculture industry group advises on the broad range of environmental, health, and safety issues impacting the fishing and aquaculture industries’ facilities, operations, and products. A number of our lawyers have biology or ecology backgrounds, personal experience working with fisheries, and unique perspectives from years of government service. B&D offers a physical presence in major fishing markets, as well as experience with fisheries off all U.S. coasts and in major freshwater bodies across the country.