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| July 5, 2008 |
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This manual is available only as a pdf file. E-mail orders for a free download should be sent to publications@sg.tamu.edu. The file also is available on CD at a predpaid charge of $5.00 (plus tax for Texas residents). Mail orders to Texas Sea Grant College Program, 2700 Earl Rudder Freeway South, Suite 1800, College Station, TX 77845.
Updated Governmental Permitting and Regulatory Requirements Affecting Texas Coastal Aquaculture Operations
Granvil Treece
©2005 Texas Sea Grant College Program Order from:
Introduction Governmental Permitting and Regulatory Requirements A significant number of federal, state and local government agencies are involved in the regulation of aquaculture (including mariculture) operations. This involvement includes site selection, facility design and construction, operations, species obtainment, production, processing, and marketing. The regulatory environment is often a source of concern to individuals, investors and corporations due to the possibility of unanticipated delays and increased capital and operating expenses. The source of this concern is frequently based on a small percentage of proposed projects that encounter regulatory difficulties. In most cases, regulatory difficulties arise because of inadequate planning, lack of knowledge of the process by the applicant, and incomplete information concerning the agencies respective requirements. This is not to imply that improvements cannot be made in the regulatory environment, but rather to point out that information on government regulations is available and agency representatives are responsive to requests for assistance concerning their agency's jurisdiction. However, it is not the responsibility of an agency representative to be knowledgeable about the regulations of all other agencies that may have regulatory authority over some phase of a proposed project. This responsibility remains with the project applicant. Jurisdiction over various aspects of mariculture in public waters of Texas, such as mariculture licenses, navigation, natural resource protection, public health, maintenance of environmental quality, and permit review and comment is held by multiple state and federal agencies, including the Texas Department of Agriculture, Texas Parks and Wildlife Department (TPWD), Texas Commission on Environmental Quality (TCEQ), The Texas General Land Office, Texas Department of State Health Services, Texas Animal Health Control, Texas Historical Preservation and Antiquities Committee, U.S. Environmental Protection Agency, U.S. Fish & Wildlife Service, U.S. Army Corps of Engineers, U.S. Coast Guard, National Marine Fisheries Service, USDA Animal and Plant Health Inspection Service, the U.S. Food and Drug Administration, the Gulf of Mexico Fishery Management Council and, possibly, the U.S. Department of Interior, Minerals Management Service if an offshore rig platform is involved. Each agency controls, regulates, oversees or just reviews and comments on aquaculture permits or some other aspect of aquaculture (including mariculture) in varying degrees of involvement. Some are seldom involved with mariculture and others are heavily involved. For example, the state agencies (TCEQ and TPWD) are generally heavily involved in coastal aquaculture permitting, especially with exotic shrimp. On the other hand, the U.S. Department of Agriculture is not involved with the permitting process, but plays a key role in the development of the aquaculture industry in the United States. The National Aquaculture Act Development Act of 1980 established a coordinating group, the Joint Subcommittee on Aquaculture (JSA), chaired by the U.S. Department of Agriculture. The JSA has been responsible for developing the National Aquaculture Development Plan, which identifies the relative roles of the U.S. Departments of Agriculture, Interior, and Commerce, and establishes a strategy for the development of an aquaculture industry in the United States. In addition to federal and state governmental agencies, a prospective aquaculturist might also have to seek local government permits in some cases. In view of the need to provide prospective aquaculturists, as well as established operators who may wish to expand, with information and sources of contact regarding applicable government agencies, this manual lists each federal and state agency that has been determined to have authority over aquaculture operations. Under each agency heading are descriptions of the agency's role, responsibility and regulatory requirements. In most cases, the following format is used for presentation of these requirements: •Agency role and responsibility Local government agencies also are presented and discussed in general terms. Aquaculture is an emerging industry not only in Texas but also throughout the United States. It is the fastest growing sector of agriculture, but is not always treated as agriculture by the regulatory agencies. For example, the Texas state regulatory agency that controls discharges treats aquaculture effluents as industrial wastewater. Some regulatory programs in place today were established prior to the time when aquaculture was recognized as having sufficient significance to warrant particular attention. The industry has grown from a few part-time culture efforts to corporate operations with substantial capital investments. Some of the small family-owned businesses have grown and are now large, partially integrated operations, with production farm, processing, cold storage, wholesale and retail sales all owned and operated by one family. Some adjustments have been made in the existing regulatory framework to accommodate the needs of the industry and the need to protect the state's natural resources. Others, no doubt, will need to be made as the industry grows and matures. In 1989, the Texas Legislature recognized the potential of aquaculture to the Texas economy in the Fish Farming Act of 1989. The Legislature then transferred authority to regulate aquaculture from Texas Parks and Wildlife to the Texas Department of Agriculture (TDA). TDA was designated as the lead agency and directed to establish and implement an aquaculture program for Texas, but the Legislature did not provide the funds for TDA to do the job. At the same time, the Legislature created the Aquaculture Executive Committee (AEC) to assist in promotion of the aquaculture industry. This three-member committee consisted of the Commissioner of the Texas General Land Office (GLO), the Commissioner of the Texas Department of Agriculture (TDA) and the Chairman of the Texas Parks and Wildlife Commission (TPWC). This Committee was never functional due partly to the political personalities holding those positions not being able to work together and eventually the AEC was disbanded by recommendation from the Senate Natural Resources Interim Committee on the Texas Aquaculture Industry in 1996. When the AEC was abolished it was replaced with a Memorandum of Agreement between TNRCC (now TCEQ), TPWD and TDA in 1999, which required all three state agencies to work together in permitting aquaculture. In 1991, the Texas Water Commission (now TCEQ) reversed its position on the need for discharge permits for aquaculture, which had been in place since 1988. Farms inside the coastal plain were required to be individually permitted. Changes in the current regulatory framework are still necessary to encourage and allow the aquaculture industry, especially the offshore aquaculture industry, to expand. Overall, the state's regulatory environment is not conducive to aquaculture and is more restrictive than it is in other states, such as Florida and Mississippi, but less restrictive than the neighboring state of Louisiana. However, the regulations in place are protecting the state's natural resources and have safeguards to protect abuses against the environment. The current and future needs of the industry must be assessed, plans developed, programs initiated and appropriate changes made. This will involve cooperation and coordination at both the federal and state levels, and may even require new state and federal legislation to bring about change. Additional federal and state legislation is needed, especially in relation to offshore aquaculture. State agency boards and commissions must be convinced that proposed regulatory changes would be in keeping with their respective agencies' roles and responsibilities. With all the regulatory changes that have taken place in the state and the U.S. since the Fish Farming Act of 1989, there is a need to understand and document the current permitting and regulatory process, which seems to be ever changing. While certain changes may be forthcoming, such as agency name changes, the basic framework will likely remain intact, with the exception of offshore aquaculture, where major changes are necessary before this industry can grow. The purpose of this document is to present a snapshot of the permitting and regulatory requirements that exist at the current time. The specific objective is to provide a guide to assist aquaculturists who are planning to expand current operations and to prospective aquaculturists who are considering entering the business. Texas Agency Cooperation in Aquaculture Permitting Is Required by State Law Generally The Texas Commission on Environmental Quality (TCEQ) must provide copies of applications for aquaculture wastewater discharge permits to the Texas Department of Agriculture (TDA) and the Texas Parks and Wildlife Department (TPWD). All three agencies shall each appoint one representative to review aquaculture wastewater discharge permits (Texas Agriculture Code 134.031). TPWD has the authority in consultation with TCEQ to establish guidelines that identify sensitive aquatic habitats in the coastal zone; those guidelines are to be used by TCEQ in reviewing applications for new aquaculture facilities or expansions of existing facilities in the coastal zone. The area referred to as the coastal zone is described in more detail in the section on TCEQ permitting (appendix #2, TCEQ general permit and fees) or in the section on Texas General Land Office, Coastal Management Program, under Texas Boundary. Collective Permitting A 1999 amendment to the Water Code requires TCEQ, TDA and the TPWD to collectively permit discharges of suspended solids from aquaculture facilities in the coastal zone (Texas Water Code 26.0345). The State Legislature in 1999 required a Memorandum Of Understanding (MOU) between the three state agencies charged with regulating aquaculture. The MOU is referenced in TCEQ Rule Log No. 1999-035-007-WT. Pursuant to Senate Bill 873, the TCEQ, Texas Parks & Wildlife Department (TPWD), and the Texas Department of Agriculture (TDA) have adopted a Memorandum of Understanding (30 TAC 7.013) which requires that the agencies work cooperatively in the regulation of aquaculture activities. The TDA is responsible for licensing aquaculture facilities and promoting aquaculture commerce. Prior to the TDA issuing an aquaculture production license or the TPWD issuing an exotic species permit to an applicant, the applicant must provide proof of an exemption from permitting or a discharge authorization issued from the TCEQ. The TPWD is included in the permit application and draft permit comment process to assist in the determination of whether or not the proposed discharges will adversely affect waters in the state. Under the MOU, the TPWD has taken the task of establishing guidelines for the identification of sensitive aquatic habitat within the coastal zone. These sensitive habitat guidelines provide an outline for the Site Assessment Report, which is required for new and expanding commercial shrimp facilities located within the coastal zone. The Site Assessment Report must assess potential impacts on sensitive aquatic habitats, significant impacts related to the construction or operation of the facility and any mitigation actions proposed by the applicant. TCEQ must consider the Site Assessment Report before making a determination on the wastewater discharge permit. General Permits Water Code 26.040, Issuance of General Permits to Dispose of Wastes, was established on December 20, 1999. Under this section, the TCEQ issues an industry-specific permit under which facilities meeting the inclusion criteria can operate. A general permit for aquaculture is under development. This manual is available only as a pdf file. E-mail orders for a free download should be sent to publications@sg.tamu.edu. The file also is available on CD at a predpaid charge of $5.00 (plus tax for Texas residents). Mail orders to Texas Sea Grant College Program, 2700 Earl Rudder Freeway South, Suite 1800, College Station, TX 77845.
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Publication supported in part by Institutional Grant No. NA86RG0058 to Texas A&M University by the National Sea Grant Office, National Oceanic and Atmospheric Administration, U.S. Department of Commerce. All rights reserved.| Texas Sea Grant College Program | 2700 Earl Rudder Freeway South, Suite 1800 | College Station, Texas 77845. |
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