State Policy Update
by Thomas T. Ankersen, University of Florida College of Law & Florida Sea Grant
Restoration aquaculture is poised by play a significant role in support of nature-based resiliency and in mediating water quality hazards.
Recognizing this potential, the Florida Department of Agriculture and Consumer Services, Division of Aquaculture (FDACS) has amended Florida Administrative Code Rule 18-21, which governs the use of sovereignty submerged lands, to allow the limited use of state-owned submerged lands for restoration aquaculture, when commercial production is not the primary purpose. Restoration Aquaculture is defined by the Rule as “the controlled propagation and subsequent planting and husbandry of native, aquatic plants and animals on sovereignty submerged lands, not affixed to public or private dock or pier, for wild population enhancement.”
Under the new rule the Governor and Cabinet, who serve as Trustees responsible for the disposition of state-owned lands can approve “management agreements” for aquaculture restoration, when it is for educational, scientific, demonstration, restoration, and experimental activities, and when commercial production is not the primary purpose. Management Agreements are a form of submerged lands use authorization (in addition to leases, “letters of consent” and “use agreements”). FDEP, FDACS and other agencies have been delegated administrative authority to support the Governor and Cabinet in its governance capacity. The use of this new submerged lands use authorization for restoration aquaculture is limited to state agencies, local governments, educational institutions, research institutions, and “Restoration Organizations,” a new term in the Florida regulatory lexicon. Restoration Organizations are defined to mean any Florida Not-For-Profit Corporation that conducts business to benefit Florida’s aquatic environment.
Importantly, the new Rule allows for “public-private partnerships” for demonstration and pilot scale programs that provide a general public benefit. This is significant because governmental and private education and research institutions can engage the services of aquaculture business enterprises to assist with the production of restoration bound aquaculture products such as shellfish, sponges, corals, sea grasses, and other plant and animal life. Restoration Aquaculture can also take place within aquatic preserves, research reserves, marine sanctuaries and state parks provided they are consistent with the applicable management plan, or, where there is no plan – with “applicable management policies.”
The Rule requires the area subject to the management agreement to be marked and signed for navigation and safety purposes, but this requirement is waived if the restoration activities are limited to the substrate and the bottom six inches of the water column. Riparian rights of shoreside property owners must be respected and setbacks maintained from other activities and structures. Only indigenous or hybrids of indigenous plants and animals may be aquacultured for restoration, and “relaying,” moving the species from one area to another, must be done in accordance with Florida law.
FDACS serves as the lead agency for reviewing and processing restoration aquaculture management agreements. Following the submission of an application, FDACS coordinates with each applicant to ensure all requirements and review processes are completed, including but not limited to a physical resource assessment and solicitation of public and state agency comments. Ultimately, Aquaculture Restoration Management Agreements must be approved by the Governor and Cabinet in their capacity as Trustees for sovereignty submerged lands.
Depending on the nature of the activity, other regulatory approvals may be required. However, restoration aquaculture employing clams and oysters may fall with the US Army Corps of Engineers Programmatic General Permit (SAJ-99).
To learn more about the aquaculture lease and management agreement application and approval process, you can review FDACS’ Shellfish Aquaculture Leasing Process publication. While this publication is focused on commercial shellfish leases, the same application and review process applies to restoration management agreements as well.
Questions concerning the new restoration aquaculture rule can be directed to:
Assistant Director, Division of Aquaculture
Department of Agriculture & Consumer Services