Dr. Arun G. Jhingran
Consultant, ADB funded Aquaculture Project,
Matshya Bhaban, 7th Floor,
The environment in an aquatic system embodies all of the physical and chemical factors that exert an effect upon the biotic communities. Production of harvestable biological material from an ecosystem is dependent on a complex community metabolism in which the solar energy, trapped at primary producer level, passes through different communities of organisms before a fraction of it finds its way to the harvestable organisms. Thus, the habitat constraints that have no direct bearing on fish also impair fish productivity.
Culture-based fisheries, or enhanced fisheries of lakes and reservoirs, are vulnerable to all the negative impacts common to closed aquaculture systems. In addition, they are also subject to those natural and man-induced stresses which are inherent in open water systems. The biological production functions and fish harvests from these multi-use water bodies are impacted by: (i) abstraction of water; (ii) high sedimentation rates; (iii) pollution from urban and industrial discharges and agricultural run-off; (iv) introduction of exotics; (v) transfer of pathogens; (vi) parasites and diseases; (vii) hypernutrification and eutrophication through organic fallout from fish cages; (viii) impairment of aesthetic qualities; and (ix) disruption of the life cycles of resident and migratory fish stocks. Several environmental constraints, their sources, and effects on culture-based fisheries of lake and reservoirs are listed in Table 1.
Water quality: Delineation of habitat constraints, based on their impacts on biotic communities, becomes extremely difficult as the parameters that exert pressure on the ecosystem are closely interrelated. There are many harmful chemical toxicants emanating from different industrial units and their divergence depends on products, production processes and materials used. Similarly, agricultural runoff carries heavy loads of non-biodegradable pesticides. Domestic wastes also contain a variety of chemicals, detergents, heavy metals and organic loads. Unfortunately, the impact of these toxicants on the biotic communities is very complex and our knowledge in this regard is grossly inadequate. The concept of prescribing safe limits in respect of any of the chemical pollutants is no longer valid as this emphasises fish kills alone. To protect the ecosystem from gradual degradation, we must provide criteria that protect the entire life cycle of the desirable species as well as the food-web representatives on which these species depend.
Sediment load: Soil erosion and the resultant sediments are directly related to land-use patterns and conservation measures. In India, nearly 5,334 million tonnes of soil is eroded from the cultivable land and forests. The country's rivers carry a sediment load of 2,050 million tonnes of which nearly 480 million tonnes get deposited in reservoirs and 1,572 million tonnes washed away into the sea every year. The runoff from denuded forests, spent mine areas and waste lands causes siltation of rivers and reservoirs resulting in destruction of breeding grounds of fishes and decline in their overall productivity. The various multi-purpose reservoirs, originally designed for an average inflow sediment rate of 2.5 to 6.5 t/ha, are silting up faster than expected and their life and power-generation potentials have been reduced.
Water abstraction: The fluviatile biocoenoses are largely oriented to currents of water. Low velocities physiologically upset the normal community succession and lead to a decrease in species diversity. Many fish populations are dependent on annual flooding for food and spawning. Flow rates have a direct impact on the migratory habits of fishes. Discharge rates can cause migration to commence, create barriers at high or low flows, cause delays, disrupt the spawning migration and change the speed of travel. Thus, water level fluctuations due to water abstraction from lakes and reservoirs is a critical environmental variable, especially in reservoirs.
Fish passes: Dams can block the upstream migration of adult fish, cut-off access to upstream breeding grounds and inundate prime spawning sites. Even with fish passes, anadromous fish are adversely affected by fluctuating flows, wandering, migration delays, gas supersaturation, physical failback and oxygen depletion. Mortality during downward migration has also been reported. Both riverine and reservoir fish communities are effected by the nature of hydropower releases and fish are known to be killed by passage through turbines. Hilsa were known to migrate up river in the Ganga to a distance of about 1300–1600 km from the sea and contribute about 300 metric tonnes (30–60%) of the total annual catch at Allahabad in India. These fish have almost completely disappeared above the Farakka Barrage in the lower Ganga.
Since fish passes are expensive to build and operate, and there is dearth of knowledge about the behavioural aspects and swimming energetics of concerned fish, close co-ordination between engineers, fishery biologists and environmental scientists is required to design and construct effective fishways.
Cages and pens: The phenomenal increase in the use of cages and pens in inland water bodies has led to concern about their environmental implications. Eutrophication, brought about by increased loading of phosphorus and nitrogen and the escapement of caged fish and their impact on the endemic fish stocks and other biotic communities, are some of the environmental issues widely reviewed. However, in view of the declining fisheries of open water bodies, there is a growing demand on the intensive aquaculture operations in such waters and it is imperative that more authentic scientific information on the environmental impact of cage and pen culture becomes available.
Introduction of exotics: The introduction of exotic species in culture-based fisheries has always been viewed with a note of concern. These introduced fishes may cause ecological distortions and adversely affect the productivity of the endemic species. Many introductions of exotics with the objective of “filling a vacant niche” have proved disastrous for the native ichthyofauna. Even if they have increased the tonnage of fish, they have done so at the cost of ruining the biotope.
Fish farm wastes: Lakes and reservoirs may be affected by the effluents from fish farms containing uneaten food, faeces and dissolved excretory matter, high microbial load, parasites, anaesthetics, antibiotics and inorganic fertilisers. These effluents may bring about drastic changes in the physico-chemical characteristics of the recipient waters and destroy its self-purifying capacity.
Human wastes: The human population gives a measure of wastes or sewage generated in a region. The major impacts of sewage on water quality are deoxygenation, high BOD load, rapid eutrophication and accumulation of heavy metals in the environment. Escherichia and Aerogenes are the major coliform bacteria encountered in sewage polluted waters causing public health hazard. Owing to increased use of synthetic detergents for domestic purposes their incidence in the sewage effluents is escalating. They impair the growth and reproductive capacity of fishes as they are absorbed in the body system of fish. Detergents mixed with oil are reported to be 60 times more toxic than oil alone. Synergistic action of detergents with insecticides has also been recorded, the sublethal concentration of which causes thinning and elongation of epithelial cells.
In India, the magnitude of sewage pollution in water courses can be assessed from the burgeoning population. As per the 1981 census, it was estimated that nearly 33 million tonnes of sewage was generated daily. The enormity of sewage pollution in the country is very well reflected by the river Ganga in which more than 70% of the pollution load is contributed by sewage alone. The storm water channel carrying the Calcutta city sewage effluents has more than the desired levels of heavy metals.
Heavy metals, as in the case of organochlorine pesticides, causes serious pollution since these are stable and non-biodegradable. Therefore, unlike other forms of pollutants, they not only linger in the ecosystem but also get passed on to living tissues in increased concentrations through biomagnification. The ecological implications of such residues are manifold. Apart from posing a public health hazard for the fish consumer, heavy metal accumulation in fish tissues causes physiological disorders such as necrosis of the liver, damage of nephrons in the kidney, haematological aberrations, decline in growth rate and fecundity, and enlargement of the gall bladder.
Impacts from power generation: Human impacts from power generation -- hydropower, pump storage, fossil fuel and nuclear -- all cause large-scale perturbations of aquatic ecosystems. Apart from the impacts of emissions of sulphur and nitrogen oxide, considered as precursors of acid rain, there are multifaceted environmental impacts recorded in the literature. Thermal power plants discharge a large volume of heated water. It is reported that for cooling impoundments at thermal plants, designed to dissipate the entire heat load to the atmosphere via a lake or a reservoir, creates many negative environmental impacts. In addition to “entrainment” (carrying organisms through the cooling system of a power plant), “impingement” (impact of fish on intake screens) and elevated temperatures, they create substantial horizontal movement and vertical physical and chemical gradients. They also have a tendency for aquatic weed problems and development of toxicity problems due to heavy metal and selenium, in cases where the retention time is excessively long or where ash basin effluent discharge is not properly planned. In Rihand reservoir in India, the fly ash smothered the benthic fauna of the region and caused loss of fish grounds.
The enormity and diversity of these inland ecosystems demand a separate approach towards their fisheries management which involves a complex of socio-economic, legal, biological and environmental variables. Furthermore, these ecosystems portray unique features of limnology, such as environmental and production dynamics. Fisheries management in such multi-purpose aquatic resources has to be viewed today in the wider context of aquatic resources management consistent with the ecosystem changes and competing resources uses.
Aquaculture and fisheries enhancement in lakes and reservoirs are at a critical point in their development. The degradation and loss of fisheries habitats are increasing and a change in management policy issues is imperative for the sustainable development of their fisheries. Development strategies need to have a holistic approach suiting the entire drainage basin. There is a need for a systems approach which would ensure basin-wide perspective towards development and management. This would enable the adjustment and abatement of those parameters which receive impacts. In such an integrated development of multi-use systems, it should be possible to develop all living resources together. Thus, a system which links the management of fisheries, forestry, agriculture and aquaculture to agro-industrial and hydroelectric units will facilitate recycling of nutrients, optimise river basin production and minimise pollution, eutrophication and contamination of environment consequent with changes in the hydro-biological and socio-cultural regime.
Table 1. Environmental constraints and their effects on culture-based fisheries.
|1. Reduced flow-rate.||Water abstraction.||Acceleration of sedimentation rate; destruction of breeding grounds; impediments to migration; irrational fishing restricting use of many gears; negative impact on floodplain fisheries; effects on temperature, transport of organic material and territorial orientation of fish.|
|2. Silt load/particulate matter.||Soil erosion, poor basin management, fly-ash.||Muffling of benthic communities; destruction of young stages of finfish and shellfish; effects on recruitment; obstruction of light needed for aquatic organisms; and shifting of fishing grounds.|
|3. Nutrient loading.||Fertilisers, sewage, cage culture.||Algal blooms; increased macrovegetation; water loss by transpiration; eutrophication; impairment of aesthetic qualities; disruption of resident fish stocks; reduction in lake productivity; increased shelters for disease-carrying and nuisance-causing insects and snails; obstructions in variety of water uses like irrigation, hydropower, navigation and fisheries.|
|4. Temperature.||Thermal plants.||Fish kills; destruction of other biota; eutrophication; creation of physico-chemical gradients; heavy metal and selenium toxicity in improperly planned ash effluent discharges.|
|5. Cool, hypolimnetic water releases.||Deep-water penstocks in large reservoirs.||Poor water quality; low DO; high CO and noxious gases; fish kills in tail waters; loss of dissolved and suspended materials reducing the productivity of the reservoir.|
|6. Submerged timber.||Reservoir filling.||Deoxygenation of water; hindrance to fishing operations; removal requiring high capital investment.|
|7. Plastics/litter.||Household wastes.||Stifle and destroy natural habitats.|
|8. Sewage.||Sewage/sewage effluent mixed with trade wastes.||Source of human pathogens; health risk to fish handlers and consumers; high BOD load; rapid eutrophication and accumulation of heavy metals.|
|9. Chlorinated hydrocarbons (Pesticides).||Agriculture runoffs, industrial wastes.||Direct fish kills; sub-lethal chronic effects on the environment; destruction of habitats of benthic and planktonic communities; menace to aquatic environment and biotic communities; bioaccumulation; and biomagnification at various trophic levels.|
|10. Heavy metals (As, Hg, Zn, Cd, Pb).||Industrial wastes, mining.||Diseased and contaminated fish and other biota; bioaccumulation of toxicants and biomagnification at different trophic levels.|
|11. Petroleum hydrocarbons.||Oil spills, industrial wastes, urban runoff.||Ecosystem destruction.|
|12. Obstruction to fish migration.||Dams and weirs barrages, non-functional fish passes.||Demise of the fisheries of migratory stocks.|
|13. Introduction of exotics.||Stocking.||Diseases and parasites; supplantation of native ichthyofauna.|
|14. Destructive fishing practices.||Inadequate enforcement of fishery regulations.||Increased fishing mortality; reduced recruitment; indiscriminate fish kills; long-lasting damage to the ecosystem; endangered species.|
|15. Frustrating social-benefits.||Lack of socio-economic studies of fishery values in project planning and operational considerations prior to construction.||Displacement of human population around the reservoir; increased poaching; low productivity; environmental impacts.|
A. Van Houtte
Development Law Division,
Legal Department, FAO, Rome, Italy.
I BRIEF REVIEW OF THE FACTS THAT GIVE RISE TO LEGAL ISSUES
The legal issues arise from the following facts:
Aquaculture development is intrinsically dependent on water quality and quantity. Aquaculture is vulnerable to water quantity and quality changes caused by surrounding users (agriculture, domestic, industrial) of the same aquatic resource (surface water: river; reservoir; lake; ponds, etc.; ground water; or coastal/marine water) and caused by natural events (storms, typhoons, etc.). On the other hand, beyond received pollution aquaculture may pollute itself and/or cause harm to the surrounding aquatic environment;
Aquaculture relies on effective implementation of national water related legislation, in particular those related to the quantity and quality of water supply and the quality of water discharge;
The vulnerability of aquaculture calls for compensation.
A balance needs to be found between the continuation of existing farm activities and conservation of existing natural resources.
Restrictions on movement of species, limits on species selection and seed collection;
Wetland use restrictions and setback rules.
Legal issues arise from concerns about water and land (often coastal) availability (in other words, competing water/land uses).
Creation of conflict resolution mechanism like zoning, land use planning, coastal zone management, etc.;
Development of licensing and lease systems (e.g. for access to water and land);
Problems of property and use rights;
Definition of use priorities (e.g. for fresh water abstraction, for preservation of particular interests).
Aquaculture often involves production from publicly regulated resources i.e. that the public holds or manages directly or indirectly (water, coastal land, foreshore, wetland, etc.).
Regulation of access to these resources.
Legal issues arise from the concerns about the necessity of producing a product ready for consumption (domestic and foreign market).
Fish disease related legislation;
Use of pharmaceuticals, drugs, etc.;
Definition of product quality standards.
II TECHNIQUES/OPTIONS TO REGULATE THE INTERACTION BETWEEN AQUACULTURE AND THE ENVIRONMENT
Efforts to resolve environmental issues associated with aquaculture can involve a variety of techniques and institutions, such as education, advertising, media reports and grass roots mobilisation of public opinion. Among possible alternatives there is also law.
A. Control of environmental changes suffered by aquaculture
The various techniques which have been developed to apply the basic principles of environmental law i.e. conservation, amelioration, precaution and prevention protection, and the polluter pays, are most likely to foster a wide protection of aquaculture from environmental impacts. These techniques are the following:
1. Preventive measures
Preventive measures in general imply that the environmental harm is foreseeable and aim at avoiding the occurrence of that harm to the environment, reducing the risk of harm, or eliminating the risk of harm. Preventive measures may include:
Government authorisations (licenses, certification, permits) and associated authorisation requirements are techniques commonly used to prevent and control the occurrence of environmental harm and to reduce its levels as much as possible;
Environmental impact assessment (EIA) is important to the concept of integrated management of resources. It ensures that all government decisions are environmentally sound (information is collected on the potential environmental consequences of development projects and on possible measures to prevent and mitigate them);
Regulation. If an activity presents a risk of environmental damage, standards, restrictions and prohibitions can be imposed to reduce and eliminate them. There are usually three to four standards which are defined according to the subjects they regulate:
quality standards which fix a maximum allowable level of pollution in e.g. the aquatic environment (e.g., the level of mercury permissible in rivers); they vary often according to the particular use of an aquatic environment (drinking, bathing, preservation of fish life, why not for aquaculture etc.);
emission standards which define the quantity or concentration of pollutants that can be emitted in discharges from a particular source; they may vary according to the number of polluters, the aquatic environment of discharge, the capacity of the area to absorb pollutants;
process standards which specify certain means of production (e.g. request of treatment systems). Restriction and prohibition techniques are numerous. They may reduce or eliminate the harm which could be caused by an activity or product presenting risks of environmental harm. When the likelihood of risk is great, then the activity or the product can be prohibited. However, the most commonly used are: listing of restricted or prohibited products, processes or activities, e.g. for the protection of wild flora and fauna or for controlling the use of hazardous substances, zoning offers a means to spread activities harmful to the environment in order to limit the potential damage (e.g. land use controls, special protection areas); trade and taking prohibitions and restrictions (e.g. as means of protecting certain species).
2. Enforcement measures
A law must be enforceable and, despite the preventive measures, environmental damage occurs sometimes through intentional or negligent conduct and sometimes accidentally. To address this fact, there are enforcement measures which include: civil actions; administrative remedies; and criminal prosecutions. In our subject matter, the remedial actions generally imply that damage or harm has occurred to the aquaculturist and economic value is placed on the damaged “object”. This may include market value or loss of income for the aquaculturist.
Civil actions are based on concepts of sort of nuisance (unlawful, unreasonable use/conduct of his own property leading to significant harm), or abnormal harm to neighbourhood or legal wrong (e.g. trespass i.e. unpermitted entry onto someone's property either by a person or something sent by a person).
Criminal prosecutions involve deprivation of liberty for those who pollute.
Administrative procedures may be initiated by the authorities, associations, companies or individuals. They include injunctions ordering that the activity cease and repairs be made (under government funded schemes), and refusal, suspension, revocation, or modification of authorisations in case of non-compliance.
3. Economic incentives/disincentives
Economic incentives intend to affect conduct towards the environment. The underlying principle is that the generator of pollution bears the costs of measures taken to ensure that the environment is in an acceptable state. Some types of charges are incentives to change behaviour, others are income generators to finance monitoring/policy programmes or the cost of administering environmental legislation. In our subject matter, the consumption of clean water could be priced and polluters pay through charges or taxes for causing deterioration of certain resources. They may include:
Effluent charges which are levied according to the quantity and/or quality of discharge of polluting substances into the environment;
User charges e.g. for cost of collective treatment of waste; exemption fees/authorisation fees (e.g. registration);
Grants and subsidies schemes under the form of government financial assistance and incentives taking the form of low-interest loans to foster the operation of more environmentally friendly installations (e.g. for farmers who farm without chemical pesticides or artificial fertilisers);
Negotiable permits: the authorities define within a geographic area the total amount of pollution permissible. Each polluter is required to obtain an emission permit from the authorities and should he invest for instance in processes which reduce pollution, he may exchange or sell his permit to other “polluters” located in the same geographic area; and
Deposits e.g. on “potential polluting products” (for instance glass or plastic containers) to encourage their return or recycling.
It is important to note that to the relevance of these tools for aquaculture will depend on the general recognition of aquaculture as a legitimate user of aquatic resources and of the positive role that aquaculture can play in diversifying and expanding the economic base of local communities.
B. Control of environmental impacts caused by aquaculture
Before dealing with this subject matter it is important to note that one should not only look at existing legislation nor only strive for control of aquaculture and more stringent standards for effluents. The following question should also be answered: what can the industry itself do in particular to improve the situation, how can the biological loading from aquaculture farms be reduced, etc.? Being increasingly a specialised and unique activity, aquaculture deserves a specialised set of rules, but undoubtedly it will be supplied by other rules provided for under legislation relating to the conservation and protection of natural resources.
A specialised legislative instrument for aquaculture in general or an aquaculture system in particular may include:
An authorisation system to conduct the activity (preferably linked to or unified with other necessary authorisations) which allows for control of:
Installation and operation: requirements could be set relating to: species cultured; the use of potentially polluting substances; production (per farm, cage area or number, by volume, by stocking density); feed consumption;
Location: setting distances between sites, from sensitive areas, directing aquaculture in designated areas;
Pollution control: setting requirements for monitoring (and implicitly a requirement for action at farm level e.g. modification of the level of production should the results of monitoring indicate that ecological targets have been exceeded), for disclosure of information (regular reporting and immediate reporting in the case of fish disease, or detection of toxic species);
An EIA requirement before the necessary authorisation(s) for the aquaculturist are granted; to be set in relation to the scale of the proposed development and perceived sensitivity of the recipient body;
A moratorium on new farms, if necessary.
Issues which deserve special attention include the following:
Control over effluent discharged i.e. regulating discharges into waters by means of standard setting (effluent/emission standards for aquaculture farms as a source of pollution) to lead the aquaculturists towards sustainable development and integration with other users of aquatic resources. Basis for control of effluents: input of materials to the farm; size of the farm; discharge of the farm absolute or related to the capacity of the receiving waters; through licensing of discharges; or through charges on discharges;
Trade and taking restrictions, prohibiting or restricting the introduction of non-native species, on collection of seed;
The law ought to be enforceable. Among the existing options there are:
fiscal incentives (e.g. financial support is linked to obtaining beforehand the relevant authorisation (s), charges for access to water resources based on the use of water resources or on the impact on water quality preferably related to the production costs which should arise from discharge controls. User charges for the use of collective intake canals, sedimentation ponds, a differential financial treatment to direct the developer towards desired sites;
regulatory monitoring (in close-co-operation with the aquaculturists) to be related to the size of the farm and the sensitivity of the relevant aquatic area (freshwater/coastal) prior to the setting of the farm and after the farm is in operation;
administrative measures such as the refusal to grant, renew, and timely variation of conditions in the interest of environment protection.
Other laws need to be carefully integrated.
Whether these features/issues can be covered in one body of legislation depends on the national legal system and on what is covered in other laws. The preparation of an appropriate legal framework requires close collaboration with scientists, the producers, the competing users, etc. and last but not least, the government authorities. Furthermore it is important to consider following elements:
The purposes of the industry: food production and marketing, employment, research or recreation;
The resources used i.e. water, land, species, feeds, energy, labour, etc.;
The system or methods used for production;
The environment in which the production is conducted;
The technical capacity of the government to implement and enforce the measures.
C. The institutional framework
Another crucial feature is the institutional framework.
The problem areas are:
The control of environmental impacts of aquaculture has not always an institutional identity, i.e. the responsible institution or network of institutions are difficult to identify. They are not specifically linked together by functions and management strategies;
As aquaculture is touching upon various natural resources, an environmental management plan for aquaculture must necessarily involve co-ordinated action concerning different matters in areas already included within the spheres of authority of many agencies;
Division of functions between the central management agency and the various less centralised institutions and authorities, though of critical importance, are not always clear.
Some food for thought:
How can integrated management be fostered? As a preventative measure, for instance, single authorisation system, EIA procedure, or as a curative measure?
Centralised versus decentralised structure?
The use of local authority structures may have benefits, such as:
It creates the opportunity to respond to local needs and conditions and thus to “fine-tune” the application of the law;
There is sometimes a greater ability to discern and respond to nascent and potential problems, operating in a more preventive rather than reactive management mode;
The awareness of local attitudes and the ability to take steps to ensure the greatest possible local awareness and support for the program;
There is sometimes greater integration, and
Enforcement could be facilitated.
However, benefits of a centralised approach relate to:
The uniformity of the implementation of the law;
Central authorities are sometimes more informed concerning technical and legal matters;
Neutrality and isolation of government officials from the pressures exercised on local decision-makers to favour particular interests;
Fragmentation of effort are avoided as well as inconsistent application of policies and other disjointed results.
A single government unit to administer in an integrated manner the aquaculture sector. “Administer” includes planning, licensing, law implementation (surveillance and monitoring) and law enforcement; “integration” refers to the responsibility of such a government unit to undertake co-ordination and consultation with other government bodies, where and when necessary.
From the country visits and reported country experiences, the following suggestions are offered to aid in the development of the appropriate legal framework for aquaculture.
A list of all legislation and administrative programmes relating to the environment and resource management affecting, or likely to affect, aquaculture should be developed. Efforts in terms of their effectiveness, the integration with or isolation from each other, the extent to which their coverage overlaps and the extent to which their coverage omit particular aquaculture related environmental problems or issues should be evaluated;
From an institutional point of view, the jurisdictional mandates of agencies and governmental units (geographical and sectoral) having competence in aquaculture related matters should be examined. For each institution, it should be asked whether it can take isolated actions with regard to aquaculture without consulting other agencies or complying with other agencies' laws and programs;
The status of aquaculture in trans-sectoral programs like EIA process for multiple resource management planning should be examined. Assess whether these programs take in account the particularities of aquaculture;
The place of aquaculture in the current debate with other users of same resources should receive due attention;
The environmental management needs of aquaculture i.e. the degree of technical involvement, of administrative enforcement and the suitability of centralised management versus day-to-day decentralised management should be evaluated;
The effect of particular legislation on the public should be scrutinised. For instance, current awareness of the relevant legislation, social and political considerations. Effective conservation efforts must target people's participation in environmental conservation.
Having done the above, the following steps may then be taken:
Identify the legal provisions which could constitute an appropriate starting point for the purposes of managing the environmental issues relating to aquaculture;
Draft the appropriate amendments to the existing legislation or new legislative instruments, tailored specifically for the country within the context of its law.
Develop mechanisms for co-ordination with government units and members of the public in all various stages of aquaculture planning and operations.
Cripps Harries Hall/SAUR,
Professor of Environmental Law,
University of Kent at Canterbury,
United Kingdom, CT2 7NS.
The survey of aquaculture in the Asia-Pacific region which has been undertaken has revealed a diverse range of new industries reflecting a spectrum of responses to local, national and international demands for aquaculture products. The range of activities and adversities confronting aquaculture initiatives has been made the subject of a possible The range of activities and adversities confronting aquaculture initiatives has been made the subject of a valuable catalogue of comparative experiences from which all may learn something from the successes and problems of each other. The exercise has everything to commend it from the perspective of those entrusted with the task of aquaculture planning and administration for their respective states.
Equally diverse are the legal responses to aquaculture activity. We appreciate that excesses of behaviour which threaten the common interest must be curtailed, and law, alongside economics and other methods of social constraint, has an important role to play in this respect. If the imperative of sustainable development is to be met, whereby we pass on the natural resources of the earth to future generations in as good a condition as we ourselves found them, then environmental regulation must be a primary means of achieving this. Similarly, if aquaculture is to meet the needs of aquaculturalists and the consumers of their products, laws must embody the collective values which informed producers and consumers would endorse. The task of the policy maker and legislator is to reconcile the needs of the environment with the facilitation of an efficient aquaculture industry which functions in the common interest of all.
The various legal responses to these challenges which have been revealed by the present study range widely from the inaugural measures of states first grappling to comprehend and respond to the potential and problems of large-scale aquaculture development to those who have progressed towards a relatively high degree of sophistication in their regulation of a fairly well established national industry. This paper offers some observations as to the common objectives which are being sought in aquaculture regulation and the mechanisms by which they may best be achieved. The purpose of the paper, therefore, is to indicate, in general terms, the essential components of effective aquaculture laws.
Codification of law and integration of administration
Today's aquaculture industry has to be recognised as a remarkable innovation. Over a remarkably short span of time, aquaculture has expanded to an extent which would have been difficult to predict. Unfortunately, its rapid expansion has frequently given rise to problems which have been less pronounced had a more gradual development of the industry taken place. Regrettably, legal and administrative solutions to the problems generated by this growth have evolved at a slower rate than the industry itself.
From a legal perspective, the overriding difficulty has been that of gaining recognition for the unique status of the aquaculture enterprise. Laws which were originally formulated for the protection of capture fisheries, the regulation of traditional agricultural activities and the protection of the environment in general, have been applied to the aquaculture context with varying degrees of inappropriateness. The appreciation that aquaculture is a distinct operation demanding a specialised form of legal control has been relatively slow to gain acceptance.
It is gratifying to note, however, that in disparate legal jurisdiction the uniqueness of aquaculture is progressively gaining recognition along with the realisation that a specialised activity deserves a specialised body of regulation. The task remains that of ascertaining precisely how aquaculture should best be regulated and what legal rights and duties should be imposed in relation to the practice.
Two indispensable features of this progression are the codification of laws and the integration of administrative procedures. On the former, it is widely recognised that the inappropriate imposition of legal rules devised for other purposes needs reconsideration. It ought to be possible, within each jurisdiction, to set out the main body of legal rules governing aquaculture within a single legal enactment, perhaps accompanied by supplementary regulations to provide for matters of detail.
On the integration of administrative procedures, it is increasingly acceptable that a valuable industry should be obstructed in its development by obscurity or fragmentation of relevant regulatory functions. In so far as possible, a single body should be established to administer the full range of regulatory responsibilities for aquaculture including strategic planning, licensing, monitoring and law enforcement. Where consultation or co-ordination is required between government bodies, an integrated aquaculture agency should undertake responsibility for this.
Moreover, aquaculture has developed an increasingly international dimension with increasing movements of both aquaculture produce and live species between locations within different legal jurisdictions. The international aspects of this trade has increasingly to be reflected in laws of the different nations involved. International harmonisation of practice is desirable both to secure the quality of aquaculture products and for the protection of the industry and the environment which it depends. Within limits, national laws must recognise international concerns.
The first element in aquaculture law is the need for a system of controls to regulate the establishment of particular aquaculture enterprises. Most effectively this is provided for by way of a licensing system whereby, in law, the possession of an aquaculture license serves as a defence to what would otherwise be a criminal offence. The facility to grant or decline license applications provides a great deal of scope for preventing the establishment of undesirable aquaculture projects. In addition, the capacity to impose conditions within a license allows ongoing aquaculture activities to be conducted within parameters imposed for a range of environmental and other reasons. Specifically, the following objectives may be realised through the licensing process and the imposition of license conditions.
Licensing may be used to prevent aquaculture activities taking place in undesirable locations, where conflicts with other water users are apparent or anticipated. A range of interests may need to be balanced against an aquaculture proposal including conservation, fisheries, navigation, tourism and industrial and domestic water abstraction. In each instance the licensing body will have to enquire whether the aquaculture proposal can be reconciled with existing interests and, if not, what priority is to be allocated between the competing claims for water use.
Licensing may be used to direct aquaculture to those areas which are specifically designated as suitable by virtue of a strategic assessment of appropriate land and water use zones. To some extent the designation of water areas appropriate for aquaculture and other specified purposes seeks generally to resolve in advance the conflicting claims on water use described above.
Licensing may be used control the over-concentration of aquaculture activity in a location or zone which is otherwise suitable. This may be done in particular areas to prevent the transmission of disease and other harmful effects of interaction between aquaculture installations and the broader aquatic environment. At a level where the concentration of aquaculture installations reaches saturation point no further licenses will be granted.
Environmental Impact Assessment
Licensing may be used to require that the environmental impact of an enterprise is fully evaluated before commencement. This may be done by a requirement that no application for an aquaculture license will be considered or determined unless the proposal has been the subject of an environmental assessment which indicates the likely effects of the project upon environmental media, flora and fauna and other specified matters. It may not be necessary for all applications to be supported by a detailed statement of likely environmental effects, and this requirement may only be appropriate in relation to a proposal which exceeds stated threshold criteria in respect of its capacity, where it is of a specified kind or where it is to be located in an area of special environmental sensitivity.
Licensing may be linked to various kinds of financial support for aquaculture development. For example, it may be appropriate to encourage aquaculture development in particular areas with special advantages, or to discourage development in areas where it is less desirable, by offering differential levels of fiscal support to licensees in different areas. The refusal to allow financial support to projects that are not the subject of a license will serve as an important economic sanction to ensure that few aquaculture operations are conducted without the necessary license.
Licensing may be used to restrict the nature of a continuing aquaculture activity, either in respect of the species of aquatic product that is cultivated, or the scale or nature of the activity which is conducted. In particular, continuing control over licensed activities may be imposed to ensure that they are conducted in an environmentally sound manner, for example, by restricting practices which may give rise to pollution from installations. Hence, stock capacity constraints can be imposed to reduce the pollution load generated by an aquaculture installation, or conditions imposed to prevent the use of substances which may have a polluting effect. Likewise, activities such as fish movements, which may have environmental or disease control implications, may be made the subject of restrictions. Activities generally may need to be recorded as a license condition to facilitate the effective monitoring of an aquaculture installation.
To a large extent, all these objectives are most effectively secured through a licensing system, perhaps accompanied by a requirement of periodic renewal of existing licenses. However, whatever licensing system is devised must also take account of the needs of the aquaculture industry for a system of authorisations which is administratively efficient and does not obstruct desirable innovation. In this respect a key objective must be to prevent prospective aquaculturalists having to make multiple applications to regulatory bodies for what is essentially a single activity.
Integrated administration of licensing
The solution to the problem of multiple administrative involvement lies in the integration of control over aquaculture. Clearly, aquaculture activities impinge upon a range of different concerns which are unlikely to fall within any single administrative unit of government. Accordingly, the task for an integrated aquaculture licensing agency must be to co-ordinate the roles of other agencies with an interest in the determination of license applications. Necessarily this involves the integrated aquaculture agency taking responsibility for consultation with all those bodies concerned about aquaculture development to solicit representations and to consider these fully before determining a license application.
Law and enforcement
Licensing systems cannot operate in a legal vacuum. They need to be directly related to a criminal offence and an effective system for monitoring and enforcement in the event of non-compliance. Consequently, it must be made an offence to operate and aquaculture enterprise without a license or otherwise than in accordance with the conditions upon which a license has been issued. The offence must be accompanied by a fine which is sufficient to deter transgression, the power to suspend or terminate the license and powers to authorise the removal of installations which continue to operate unlawfully.
The criminal offence of unlawful aquaculture activity must be supported by a range of powers to facilitate effective law enforcement. These will encompass the appointment of an appropriately qualified inspectorate with sufficient powers of inspection and resources to ensure that widespread transgression is not overlooked. The clear threat of a sanction in the event of non-compliance is the only means by which an effective licensing system can be ensured.
Naturally, it is hoped that prosecution will be needed as infrequently as possible and that compliance will be recognised by all to be in the collective self-interest of the aquaculture industry. However, to allow a minority of aquaculturists to operate outside the law without sanction will inevitably be seen by otherwise law abiding aquaculturalists as an invitation to do similarly.
Law enforcement can usefully be supported by various mechanisms for individual or collective self regulation. License conditions may stipulate the kinds of information which must be gathered and maintained by the licensee and made available for inspection on request. In addition, producers groups for aquaculture products may be capable of exercising considerable educational influence upon their members to encourage compliance with extra-legal codes of good practice in the various sectors of aquaculture. Depending upon the extent of membership of a producers organisation, and the responsibility with which it exercised its role, it might even become justifiable to make membership of such an organisation a pre-condition of holding an aquaculture license.
Water quality and aquaculture
As the survey of national aquaculture involvement has graphically demonstrated, the activity is inextricably linked to the existence of a sufficient quantity of water of a sufficiently high quality. The problems of water pollution which surround aquaculture are two sided. One aspect is the problem of water pollution received by fish farms from other water users, the other is the problem of water quality deterioration generated by fish farms. Effective legal controls are necessary over both kinds of pollution but the mechanism for realising them are significantly different.
Received water pollution
In relation to the adverse effects of water pollution impacting upon aquaculture, the hazards to which aquaculture is subject as a result of incidents of industrial and sewerage effluent and agricultural pollution are a major consideration for most fish farmers. Similarly, it may be noted, these are a concern to other users who may suffer adversely as a consequence and for that reason may best be viewed as a general concern of aquatic environmental legislation. It would be perverse to generate multiple offences of water pollution according to the multifarious impacts that ensue as a result, though the penalties and remedies for water pollution should reflect the nature and extent of the impact.
It is suggested that the problem is properly characterised in law as the need for an appropriate general criminal offence of causing or allowing water pollution, linked with sufficient powers of inspection, enforcement and punishment, and subject to a licensing system to allow for environmentally benign discharges. Because the problem of water pollution is not unique to aquaculture, its control is properly entrusted to a general environmental regulatory body with powers to take cognisance of the effects of water pollution upon all water users including aquaculturalists. This would involve both strategic duties such as the setting and monitoring of water quality objectives for both discharges and receiving waters, and also the operational duties which arise in relation to specific incidents where anti-pollution measures or legal proceedings are required. Beyond the immediate aquatic environment, the regulatory body would need to be empowered to investigate and i pose preventative restrictions in relation to land-use activities posing an eventual threat to the aquatic environment.
A general and comprehensive criminal offence of water pollution will serve to make unlawful any polluting emissions which have an adverse effect upon aquaculture. However, the criminal law is essentially punitive rather than compensatory in character, and there may be many instances where the conviction of an offender is of relatively little assistance to an aquaculturalist who has suffered loss as the consequence of a polluting incident for which redress is required.
In principle, a criminal court convicting a person of a water pollution offence could be empowered to make an order for compensation against the offender in favour of persons who had suffered loss as a result of the offence, including those engaged in aquaculture. Compensation orders made by criminal courts may not be generally available in these circumstances or adequate to cover the full extent of losses. A more appropriate route to redress, either in the form of compensation or an order to compel the cessation of the polluting activity, is through the system of private rights generally provided by the civil law.
Whilst the principles of civil law are relatively well established in relation to pollution damage, the application of them to particular situations leaves a good deal to be desired. Specifically, an aquaculturalist who suffers loss as a result of a pollution has been conclusively identified as having been caused by the party against whom the proceedings are being brought. This may present serious evidential difficulties in situations where damage is the cumulative result of a number of different emissions, or where the pollution is of diffuse origin which it is difficult to relate to any particular discharger. Whilst insurance or government-funded compensation schemes may offer some alternatives to a civil legal action, the ultimate need is for greater imposition of preventative controls upon potentially polluting activities which may affect aquaculture locations.
Generated water pollution
In relation to pollution generated by aquaculture, the activity of containing significant quantities of fish in cages and other structures has the inevitable consequence of producing waste products in quantities beyond those which the aquatic environment is able to disperse or assimilate naturally. Beyond this, the use of food additives, pesticides, medicines and chemicals used for various aquaculture purposes raise serious concerns both about the pollution of the aquatic environment and the contamination of aquatic products themselves.
In law, a wide variety of different mechanisms exist for the regulation f potentially polluting substances originating from aquaculture. In the first place pollution is most effectively controlled by limitations imposed within an aquaculture license by restricting the holding capacity limiting condition the licensee would commit an offence under the aquaculture licensing law and be proceeded against by the licensing agency.
Alternatively, conditions upon emissions from fish farms could be regulated in a similar manner to industrial and other kinds of discharge into the aquatic environment. This would involve the regulatory agency for the aquatic environment imposing a discharge and bringing legal proceedings in the event of breach of the consent. This approach has the advantage that the consent which is imposed could take broad account of the water quality objectives for the receiving waters and the cumulative effects of both aquaculture and industrial discharges into particular waters. The difficulty, however, is that the monitoring of discharges from some kinds of fish farm, such as cage aquaculture, is notoriously difficult. Without a precise point of discharge from which monitoring can be undertaken and compliance ascertained, the problems involved in formulating discharge consents with sufficient precision is considerable. By contrast, the imposition of aquaculture capacity limitations may have advantages of practicability.
The legal control of chemicals used in aquaculture admits a number of options. Medicines and veterinary products may need special authorisation to ensure that they do not have harmful effects upon aquaculture products, human consumers and the aquatic environment into which they are released. The most effective mechanism for control in these circumstances is through a system of product licensing and restrictions upon sale without veterinary prescription. Alternatively, chemicals used in aquaculture may have a potential harmful effect upon human beings who are involved in their administration. Once again, controls at the point of sale are most appropriate in preventing abuse, though in some instances special training or qualification may be needed to ensure that substances are not mishandled in practice so as to constitute a health hazard.
Whilst the use of chemicals in aquaculture is frequently most effectively regulated at the point of distribution, an effective mechanism for monitoring for abuses is by the regular testing of aquaculture products for residues of chemicals which may indicate misuse. Incalculable damage could be done to the aquaculture industry as a whole by a single contaminated consignment of aquatic produce being allowed to pass to consumers. For this reason widespread public health monitoring of aquatic products is essential to ensure that the risk of an incident of this kind is kept to an absolute minimum.
Control upon fish movements and disease control
Concerns about the consequences of moving fish stocks between aquaculture units have been noted in the survey which has been undertaken. These arise both because of the danger of disease transmission between wild and cultivated populations of fish and other aquaculture products, and also because of the effects of cultivated species escaping into the wild and generating undesirable habitat competition and harming the genetic integrity of wild stocks. Other concerns arise because of the widespread use of wild fry in aquaculture and the effects of their removal upon natural fishery populations.
These concerns can only be tackled in law through the imposition of restrictions upon the movement of aquaculture species. This may be accomplished either through a specialised kind of permit being required for each movement of a species into or from a fish farm, or by the imposition of general movement controls within the aquaculture license. Such controls might be used to specify that introduced species may only be brought from named suppliers or transferred to stated destinations. A consequence of non-authorised transfers being conducted would be that a condition of the license would be broken and a criminal offence committed.
Whether a specialised system of permits is used or controls arise from aquaculture license conditions, it is evident that there has to be some mechanism to monitor compliance with restrictions upon movements of aquatic products. This could be accomplished by an additional license condition requiring records to be kept of all fish movements, including details of the type, quantity and weight of the species, the place of origin or destination and any other details which are regarded as relevant. The maintenance of aquaculture product movement records of this kind would enable a range of undesirable practices to be identified. Moreover, it would be an invaluable mechanism by which the outbreak of disease could be contained by tracing the destination or origin or all potentially affected stock.
Disease control requires further legal measures beyond the establishment of movements records. The dangers which disease presents to the aquaculture industry as a whole justify the exercise of extensive powers to quarantine stock which may be infected and, in extreme circumstances, to order the destruction and safe disposal of infected stock to prevent disease transmission. Disease monitoring would need to be conducted by specialist inspectors from the aquaculture agency, who would have to be empowered to take all practicable measures in the event of an outbreak of disease. Where slaughter of stock is necessary to prevent disease transmission, consideration should be given to the availability of compensation for loss suffered by aquaculturalists as a consequence of this, either by government provision or through a general levy upon producers.
Whilst movements of aquaculture products within national boundaries are potentially problematic, for disease control or environmental reasons, the dangers associated with international movements are potentially more serious still. International movement restrictions are essential if disease transmission or undesirable introductions are to be prevented. This will entail a system of centrally administered controls by which all imports of acceptable species will require veterinary certification accompanied, perhaps, by quarantine requirements. These measures will need to be underpinned by a criminal offence relating to importation otherwise than in accordance with the appropriate authorisation. Whilst, generally, international movements of any kind of goods would be administered by customs control officials, it would be essential that the staff engaged in administering controls upon the movement of aquaculture products would be supported by specialised personnel possessed of sufficient technical knowledge to prevent undesirable imports.