Aquaculture takes up land, uses water, deals with animals, uses chemicals, etc. The purpose of this section is to analyse the legislation governing access to and use of (1) land and (2) water for aquaculture.
3.1.1 Publicly owned land versus privately owned land
3.1.2 Agriculture Development Policies and Land Reform Regulations
3.1.3 Protected Areas
Despite the fact that in many countries very little attention is paid to use and access of land devoted only to aquaculture purposes, the laws regarding private and public property rights, agriculture development policies and land reform acts (insofar as fish culture is regarded as a branch of agriculture), environment protection policies and finally national security and defense considerations are the ones most likely to regulate the access and use of land for aquaculture purposes.
It is well known that fish culture operations are often carried out in coastal areas, or on riparian lands and in some cases on forest lands. Access to and use of the sites, where they fall within the public domain, are most likely to be subject to special concessions or authorizations granted by competent authorities. In France and Ecuador 1/ special regulations provide that aquaculture operations located on the public maritime domain may only be carried out with a concession provided by the competent authorities. In both countries the procedure aims at obtaining, during the "inspection" phase, a favourable report of all persons and state organizations concerned and to involve various Ministries in the allocation of the authorizations.
1/ France: "concession d'établissement de pêche et de cultures marines; Decree No. 83-228 of 22 March 1983, establishing the rules governing mariculture operations as modified by Decree No. 87-756 of 14 September 1987. The Decree sets out the conditions governing authorizations for mariculture establishments and for sea water intakes for establishments maritime domain and brackish water areas of rivers, lakes and canals. Ecuador: "Concesión de ocupación de zonas de playa y bahía", Reglamento para Cría y Cultivo de Especies Bioacuaticas, No. 12771 de 5 de septiembre de 1975.
In France, applications for concessions are made to the Chief of the maritime affairs area. The application is circulated to interested government officials and departments (e.g. maritime prefect, inland revenue, health and welfare) and the local representative of the Marine Fisheries Scientific and Technical Institute. Each application is subject to an administrative enquiry and to a public enquiry. Public notice of the latter is given in the commune where the site is situated and in the neighbouring communes affected by the operation. Files are opened in the offices of the chief of the area, the chief of the maritime station and the town halls, and comments on the application are collected and made available to the public 1/.
1/ Decree No. 83-228 establishing the rules governing mariculture, as modified. Furthermore, this Decree sets up Mariculture Committees for each district, composed of representatives of interested government departments (maritime affairs, inland revenue, health and social affairs, etc.), a representative of the Marine Fisheries Scientific and Technical Institute, members elected by the general or regional councils, and an equal number of members representing mariculturists. The regional mariculture committees are consulted on all proposals to extend or decrease the area of public land put under mariculture, on any plans for the management or improvement of any given sector, and on any scheme for the allotment of mariculture lands prepared by the administration.
The Ecuadorian procedure to obtain authorization for such an establishment involves the Ministries of Natural and Energy Resources and National Defense, and the Department of Merchant Marine and Coasts. On the one hand, they determine, according to the Fisheries and Fisheries Development Act 2/, the maritime areas, shores, tidelands, rivers and lakes and swamps available for public use where the establishment of fish ponds or cisterns for the conservation and fattening/feeding of bioaquatic species and laboratories, agrarian or experimentation centres, may be undertaken; on the other hand, they decide whether or not to grant the authorization 3/and together they prepare the "Interministerial Agreement on Concession", should the requested authorization be granted 4/.
2/ Art. 52, Fisheries and Fisheries Development Act, 1974, reads that "for the establishment of fish ponds or fish tanks or animal fattening farms of bioaquatic species and laboratories, aquariums or experimental centres, the Ministries of Natural Energy Resources and National Defense, jointly and before informing the Directorate of the Mercantile and Coastal Navy, will determine the maritime areas, beaches, estuaries, riverbanks and lakes of public use, for this scope".
3/ Reglamento para Cría y Cultivo de Especies Bioacuáticas, No. 12771/1975, Art. 11.
4/ i.e. when the authorities consent to grant the authorization; Regulation cit. No. 12771/1975, Art. 15.
Ecuadorians (individuals, companies and cooperatives) 5/ and foreigners, provided that they comply with Art. 2 of the Law on Aliens, must apply to the Directorate of Merchant Marine and Coasts for a licence; the application must include the following information:
(i) identity and nationality of the applicant;
(ii) type of hatchery or fish farm; and
(iii) the geographic area intended to be occupied.
5/ Ibid., Art. 6.
At the same time, certain documents must be annexed to the application, such as the constitution papers of the company, a map of the area concerned and the design of the installations to be constructed thereon, and, in the case of foreigners, an authorization from the Joint Command of the Armed Forces.
The procedure consists of various phases: (a) submission of the application, (b) inspection of the requested area by the Directorate General for Fisheries and the National Fisheries Institute, (c) report to the Ministries of National Defense and of Natural Resources and Energy, (d) draft of the Interministerial Agreement ("Acuerdo de Concesión") between the state bodies referred to, (e) once promulgated, the licence holder(s) will receive the "matricula de ocupación" to be renewed annually and upon payment of certain fees 1/.
1/ Reglamento No. 12771 of 1975, Arts. 13, 14, 15 and 16.
The concession is granted for 10 years and can be renewed under certain conditions. However, the latter will remain without effect if the licence holder does not pay the annually established registration fee 2/. An inspection will take place each year prior to the payment of the registration fee 3/.
2/ Ibid. Arts. 7, 8 and 16.
3/ Ibid. Art. 9.
The concession cannot be transferred 4/nor sold 5/.
4/ Ibid. Art. 17 (see also above).
5/ Ibid. Art. 18.
The areas granted to individuals are between 10 and 50 hectares, while companies and cooperatives can be authorized to occupy between a minimum of 50 and a maximum of 250 hectares, depending on the number of its shareholders. In addition to this, other factors might influence the area granted, such as the investment, or the presence of complementary activities like marketing or industrial operations 6/.
6/ Ibid. Arts. 21 and 22.
Licences, permits or lease agreements for the use of the public domain for aquaculture purposes are also in force in several other Latin American countries. This is the case for, among others, Peru 7/, Honduras 8/and Colombia 9/ and El Salvador 10/.
7/ Law No. 24790, the General Fisheries Law deals with concessions for the use of public properties or of the sub-soil of marine and continental waters.
8/ Civil Code, section V, Title II, "De la ocupación", Fisheries Law of 1959, Arts. 9 and 11.
9/ With the Decree No. 2349/1971 the National Government created the Port Maritime Division, DIMAR, an institution empowered to grant permits to use beaches and tidal lands for aquaculture and tourism purposes. Procedures and requirements are also laid down. Decree Law No. 2324/1984 reorganized the structure of DIMAR but did not change the procedure nor the terms and conditions for obtaining the permits.
10/ El Salvador has a special regulation entitled "Regulation governing the establishment of "salineras and explotaciones con fines de acuicultura marina en los bosques salados". (Decree No. 14 of 1 April 1986). Both operations can only be carried out on such mangrove forest lands with a permit issued by the Forestry and Fauna Service (Arts. 1 and 2). Only the owners of properties contiguous to the mangrove forest lands concerned and the owners of properties located nearby who have a right of way on the properties contiguous to such forest lands can apply for such a permit. An exception is made where the area requested is an island (Art. 3).
Permits, licenses and lease agreements are common to different countries in East Asia. These usually cover the use of the public domain for aquaculture purposes, as fish pond lease agreements or lease hold rights, fish pen operation permits and licences to operate concessions in fry collecting grounds, among others.
In the Philippines, the Fisheries Decree of 1975 1/provides for the identification and setting aside by the Bureau of Fisheries and Aquatic Resources of public lands to be sub-divided into family-sized fish ponds to be leased in accordance with guidelines established by the Fishery Industry Development Council 2/.
1/ Presidential Decree (P.D. 704) of 1975 revising and consolidating all laws and decrees affecting fishing and fisheries.
2/ Ibid., Sect. 26.
Public lands, available for fish pond development can only be leased to qualified persons, associations, cooperatives and corporations, subject to certain conditions such as duration (25 years), productivity performances, site, etc. 3/. In addition to this basic law, there are regulations pertaining to public forest lands use 4/ (covering as well fish pond and fish pen leases) and the zoning of mangrove and lake areas for fish pond and fish pen development respectively 5/. No person, individual or corporation shall occupy or use any portion of public forest lands, including tidal, mangrove and other swamps, ponds and streams within public forest lands or proclaimed timberlands, or established forest reserves, for fish pond purposes without obtaining beforehand a permit or lease 6/ issued by the Director of Fisheries or by the Secretary of Agriculture and Natural Resources upon recommendation of the Director. A one-year permit or a ten-year lease are also subject to conditions regarding duration, productivity, performances, finances, payment of fees, etc.
3/ Ibid., Sects. 24 and 25.
4/ Revised Fisheries Administrative Order No. 60 of 1960: Regulations governing the issuance of fish pond permits and/or leases on public forest lands.
5/ Fisheries Administrative Order No. 160, Series of 1986: Regulations and rules governing the construction, establishment or operation of fish pens and fish cages in Philippine waters.
6/ Administrative Order No. 60 of 1960, Sects. 2 and 3.
The interesting point of this legislation is that, where the permit was the standard regime, under certain circumstances and conditions, and in particular if the holder of the permit had improved the area covered by the permit, the latter could be converted into a lease. This regime had been modified in 1979, with the conversion of such permits/leases into fish pond lease agreements of 25 years 1/, with the payment of an annual rent.
1/ Fishery Administrative Order No. 125, Series of 1979, Sect. 2.
Terms and conditions, such as establishment of boundaries, drafting of a development plan, introducing improvements in the area within 180 days from the issue date of the lease agreement, use of the land exclusively for fish ponds and other aquaculture purposes, etc. are set out in Section 5 of Administrative Order No. 125/1979.
This legislation obviously takes into account an essential aspect of fish farming, namely the importance of long-term leases for aquaculture to allow for the recuperation of long-term investments.
Exploitation rights of any other resources within the area granted, detrimental to the interests of the permit holder or lessee, will not be granted to other persons 2/.
2/ Revised Fisheries Administrative Order No. 60, Sect. 28, (i), "Exclusive privilege".
These examples clearly show that legislation concerning public lands directly influences the access and use of them for aquaculture purposes.
In some of the Pacific islands, reef and lagoon areas are owned by villages or families. In these cases aquaculture operations must meet with the approval of the appropriate chief or family head. These traditional management systems are still operational in the Cook Islands, Palau, Federated States of Micronesia and on many other islands 3/.
In most countries, legislation on this particular subject seeks to offer equal opportunities for nationals, be it administrative units (Peru), small-scale fisherfolk groups or family size groups (Philippines) 4/, or bigger corporations (France). In the latter country, the 1983 legislation for marine and coastal aquaculture was a strong protector of small-scale enterprises and made it extremely difficult for corporations to have access to aquaculture sites. In 1986, the legislation was revised in France to facilitate transfer of aquaculture enterprises from one owner to another, and gave access to corporations for investment. Foreign investors and assistance (foreign capital and technology) are welcome in most developing countries, as long as national investors are not adversely affected, control of the sector is not lost, and nationally oriented sectoral developments are not hindered. Typical examples are the Philippines and Ecuador, where, for the above mentioned reasons, access to aquaculture sites is subject to a complex administrative procedure and foreigners are allowed limited access only.
4/ "For the purpose of accelerating the development of fish ponds, the Bureau, subject to the approval of the Secretary, shall identify and set aside the public lands which shall be sub-divided into family-size fish ponds and leased in accordance with guidelines established by the Council", Section 26 of the Presidential Decree No. 704.
The fact that these policies and laws influence access and use of land for aquaculture purposes is particularly true in Colombia, Panama and Venezuela, and to a lesser extent in Tunisia, Zambia and the Philippines. Access to and use of land for fish culture was facilitated in Colombia by the Rural Integrated Development Programme established in 1975 and the "Programa de Protección Integral de Cuencas en Deterioro (PRIDECU)" set up in 1977. In accordance with those development programmes, areas suitable for aquaculture were granted more easily under the form of leases to small-sized groups, individuals or corporations 1/. Furthermore, Decree No. 533 of 1986 of the Ministry of Agriculture deals with contracts for the development of uncultivated land for agricultural and pastoral purposes. The economic exploitation of hydrobiological resources of any kind through productive activities, such as aquaculture, is also considered to be an agricultural activity. INCORA 2/ may make contracts for the exploitation of land beyond the 50 metre shoreline established by Decree No. 2324 of 1984 and which have the characteristics of uncultivated land which may be developed. The beneficiaries have to abide by the existing rules for the exploitation of mangrove trees, hydrobiological and other renewable natural resources.
1/ Freshwater farming development units for the production of seeds (UPIS).
2/ Institution belonging to the Ministry of Agriculture; its task is to promote the development of aquaculture operations.
In a different way, Egyptian Fisheries Law 3/ states that the establishment of fish farms is prohibited except on fallowland that is unsuitable for agriculture; agricultural lands and farms cannot be prejudiced. An authorization from the Ministry of Agriculture is required.
3/ Act No. 124 of 1983, Act on fishing, aquatic life and the regulations of fish farms, Arts. 14 and 48.
Legislation regarding so called "protected areas" for aquaculture operations, carried out by private or public bodies, is most likely either to hinder or to facilitate access to and use of lands suited to aquaculture.
Various reasons may justify such rules: environmental protection 1/, aquaculture protection and promotion 2/, natural resources management, educational, research and scientific development purposes 3/, public health protection 4/, management of the conflicting uses of certain natural resources 5/, protection of water quality, etc.
1/ France (cfr. infra).
2/ Singapore, The Fisheries Act (Section 294), "The Fish Culture (Control and Licensing) Rules", 1981, Sect. 4.
3/ Philippines, Section 31 of Presidential Decree No. 704 of 1975 states that upon the recommendation of the Director, the Secretary of Natural Resources may designate by Fishery Administrative Order an area or areas in Philippine waters as a fishery reserve for the exclusive use of the Government or of any of its political sub-divisions, agencies or instrumentalities, or of the inhabitants of any municipality, or for the culture of fish and other aquatic animals for education, research and scientific purposes.
4/ The Philippine Code of Sanitation, reads in Section 32:"1. Oysters shall be planted and grown only in areas approved by the Secretary of Health or his duly authorized representatives and in places duly licensed by the Bureau of Fisheries and Aquatic Resources.
2. Oysters offered for sale, if not originating from approved areas, shall be confiscated and destroyed by the local health authority."
5/ The Federal Coastal Zone Management Act (CZM) (1976) in USA provides for Federal support to each state in developing a CZM master plan and in then enacting appropriate legislation and management structures to carry out the plan. The purpose of the CZM plan is to resolve conflicts and ensure that the best use of the coastal zone is made in terms of long-range public interest.
The Government of the Republic of Korea is committed to protect its fishery resources and the Fisheries Law 6/ establishes "protective areas" (waters suitable for the spawning of fish, the seeding of marine animals and plants or the growing of fish larvae).
6/ Fisheries Law Decree, Art. 12, and Fisheries Law, Art. 25.
The establishment of shrimp hatcheries along the Ecuadorian coast is only allowed in technically specified areas. A Commission, formed by the Oceanographic Institute of the Army, the Directorate for Merchant Marine and Coasts, the Directorate General for Fisheries and the National Fisheries Institute, decides on the location of the specific areas 7/. The competent authorities have refused to recognize and, consequently legalize, some existing shrimp hatcheries because they were not located in these areas. The authorities have the power to direct that the areas be returned to their natural state.
7/ Ministerial Agreement No. 14425 of 1978, Article 2.
In France, the situation is even more complex.. Traditional town planning documents 1/ and maritime areas development documents 2/ are Used as tools to preserve and protect, inter alia, aquaculture sites; and also urban areas indirectly. The SDAU control and the POS furnish guidelines to plan national development in certain areas and ensure that on sites suited to aquaculture only the construction of buildings directly related to the fish farming activity should be allowed. Regarding coastal and marine areas, these documents provide for the optimization of the various activities located there, as veil as resolving problems of compatibility between different uses.
1/ Two documents are relevant: the "SDAU" (Schémas Directeurs d'Aménagement d'Urbanisme) and the "POS" (Plans d'Occupation des Sols), provided for by the "Loi d'Orientation Foncière du 30 Décembre 1967".
2/ The most relevant ones are: (a) Schémas d'Aptitude et d'Utilisation de la Mer (SAUM), decision of the Inter-Ministerial Committee for National Development, dated 26.10.1972; (b) Schémas de la Mise en Valeur de la Mer (SMVM); Law of 7.1.1983.
It is interesting to note that in Zambia, the establishment of special areas is motivated by the wish to protect or control natural resources therein and the quality and the quantity of water resources 3/. Indeed, Zambia is characterized by a "water resources oriented legislation", in which the conservation of water resources, as natural resources, is of major concern. Thus, upon request of a land occupier of a certain area and on recommendation of the Natural Resources Advisory Board, the Minister of Land and Natural Resources and Tourism may designate the area as a conservation planning area 4/ and elaborate a conservation plan, which might deal among others with the following matters:
(i) the demarcation and allocation of land for agriculture purposes, including the layout of land for fish farms;
(ii) the regulation of bee-keeping and fishing 5/.
3/ The Natural Resources Conservation Act No. 53 of 1970, Sect. 42.
4/ The Natural Resources Conservation Act No. 53 of 1970, Sect. 41.
5/ Ibid, Schedule 4.
In some countries, the intervention and interference of the Government for purposes of National Security and Defense are likely to limit or hinder the access to and use of certain lands. This is, among others, the case in Ecuador. The Ministry of National Defense and the Joint Command of Armed Forces are regularly involved in the decision-making process whether or not to grant the "concesión de ocupación respectiva" 6/. Furthermore, competent authorities may refuse to recognize existing shrimp hatcheries for, inter alia, reasons of national security 7/.
6/ Reglamento No. 12771 of 1975, Arts. 13, 14, 15 and 16.
7/ Ministerial Agreement No. 14425, Art. 2.
3.2.1 Access to and use of water
3.2.2 Discharge of used waters and water quality
Water, together with land, is one of the major and basic natural resources for which each government tries to plan orderly economic policies, at a national, regional or local level. In most countries, the legislation on water resources deals with its beneficial uses (domestic, municipal, irrigation, etc.) the harmful effects of water, the uncontrolled waste and misuse of water, and finally the quality and environmental aspects. Each of these subjects often seems to be administered by a different ministry, department or autonomous institution without apparent coordination.
Most countries have a regulation dealing with the right to use water resources for aquaculture purposes, either specifically or as a part of the right to use water for fishing or agriculture purposes in general. In the same manner, regulations concerning discharge of waste water and effluent, and more rarely quality aspects, can be found. Indeed, in some countries, the law is first concerned with the conservation of the water resources or with its optimum use and only then with its other uses (e.g. Panama). In other countries, the law deals with water in general, together with other natural resources and environmental elements (e.g. Colombia 1/, Poland).
1/ For instance, priorities are determined on a regional basis in the light of ecological, economic and social considerations (The National Code of Renewable Natural Resources and Environment Protection, 1974, Art. 49), allowance being made for the need to establish reserves, the wish to conserve the environment, the economic and social costs and benefits of any project, and considerations of subsistence and the economic and social development of the population of the region concerned (Ibid. Art. 49). Furthermore, like any other constituent part of the environment or renewable natural resource, water must be used in an efficient manner so that the maximum gain may accrue, compatible with the general interest of the community and with the principles contemplated by the National Code of Renewable Natural Resources and Environment Protection, in such a way that no interference shall occur with any of those resources or with the rights of third parties (Ibid., Art. 9).
Whether adhering to water law principles of the Common Law System, the Civil Law System, or others, the amount of water available for aquaculture purposes is almost invariably stated in a permit, licence or authorization from local, regional or central governing bodies. Differences found in the following fields are most likely to influence the regime of water use for aquaculture purposes:
(i) legal status of ownership of water;
(ii) explicit reference to the need of a licence for aquaculture; and
(iii) place of aquaculture in the order of priority established among beneficial uses, if there is priority.
In the following paragraphs, a brief analysis is made of legislation dealing with the right to use water resources for aquaculture.
The Federal Water Act (30 December 1971) of Mexico represents the expression of a national water policy embodying the constitutional principle of national ownership of natural resources, with the consequent need for regulating the use of such resources. Title II regulates in detail the various types of water use and the works and facilities associated with them. All water withdrawal or use is subject to prior authorization, with the exception of water use for domestic purposes and for public services (for which a strict order of priority exists). Article 27 of the Act provides for a priority order amongst nine kinds of uses; aquaculture is in the seventh place preceded by domestic use, use for municipal public services, for watering of livestock, use for irrigation, use for hydro-electric power generating industries for public services, and others; it is followed by use for hydro-electric power generating industries for private purposes, drainage and other uses. The setting up of fish farming districts 1/ with a view to preserving and improving "the natural conditions of public water resources (i.e. resources belonging to the Nation), for the development and exploitation of the vegetable and animal aquatic species..." is also provided for 2/. This law does not deal with the use of water from coastal areas, tide lands and of marine water not located in aquaculture districts. Assignments, concessions and permits granted by the Secretary of Agriculture and Water Resources regulate the use of public water resources. Assignments (asignaciones) are a special type of authorization and are granted by the Secretary to the Governments of the States, of the Federal District and of the Federal Territories and to public agencies. Concessions are granted to private individuals and corporations. Permits are given directly for the construction or alteration of water management works. The users of the aquaculture districts have to pay for the services which are established. The regulation of the use of water is strictly related to the establishment of districts for aquaculture. Moreover, the use of waters should not adversely affect the ecological balance. Rather, water should be used to protect the soil, the wild lands and forest lands, as well as to maintain the flow and the volume of the watercourses and to preserve the aquifers. Special attention is given to these considerations particularly when authorizations to divert or utilize national water are to be issued and when aquaculture districts are established. Finally, the water used for aquaculture operations (marine or freshwater) must meet the quality standards fixed by the Secretariat of Hygiene and Health 4/.
1/ Federal Water Act, 30 December 1971, Art. 87 e.f.
2/ Ibid., Art. 88.
3/ General Law on the Ecological Balance and the Protection of the Environment, 29 January 1988.
4/ Regulation on the Sanitary Control of Fisheries Products, D.O. 7 July 1980.
In Zambia, where the ownership of all water is vested in the State 1/, there is no legal priority among the different uses of water. In terms of the Water Ordinance, different uses of water are classified as "primary" or "secondary" or "tertiary". According to this classification, the use of waters for irrigation and for fish breeding is classified as "secondary use" 2/; domestic use of water, including the watering of animals, is a "primary" water use; and industrial and mechanical use of water, including that for power generation, is "tertiary" use. This classification does not appear to result in a priority status of corresponding uses of water. Different rights of use of water apply to the two different classes (public and private) of water: the acquisition of a right to impound, store, divert or simply use public water for purposes other than domestic use (primary use) is subject to grants by the administrative authority (the Water Board) 3/. The granting of an application takes the form of an order by the Water Board in which water rights can be exercised subject to appropriate terms and conditions 4/. Where a term (i.e. time) clause has been included, renewal of water rights after the term has expired is at the discretion, by a formal act, of the Water Board 5/. Thus, public water can be diverted or utilized for fish breeding purposes, and water rates can be levied in respect of the amount of water supplied and of a "special" water right 6/.
1/ Current legislation, however, classifies waters as "public" and "private":(i) public waters include public streams, i.e. those waters, courses, drainage depressions and "damboes" (a low-lying area in which water tends to collect during the rains) of natural origin wherein water flows in the ordinary season, as well as the lakes, swamps or marshes which form the source of a public stream;
(ii) private waters include all those swamps and springs which are entirely situated within the boundaries of one's land, and which do not feed a stream or watercourse flowing beyond one's land boundaries. Also groundwater which is artificially brought to the surface of one's land, and flood water which is impounded on one's land, are classified as private waters. The Water Ordinance, No. 34 of 1948 as amended, Sect. 2.
2/ The Water Ordinance, No. 34 of 1948 as amended, Sects. 39, 41.
3/ Ibid., Sects. 9, 16 and 18.
4/ Ibid., Sects. 32, 26(2) and 28(b).
5/ Ibid., Sect. 33.
6/ Ibid., Sect. 5.
The right to use private water situated on private land for one's own (i) domestic, (ii) irrigation, including fish breeding, (iii) industrial and (iv) hydro-power generation purposes is free from administrative control.
Any land-owner demonstrating a need for water for a secondary use may claim another's surplus upon the eventual payment of compensation with respect to any expenses incurred by the deprived party in making the claimed water available. It is still necessary to obtain the necessary water use right from the water authority 7/.
7/ The Water Ordinance, cit. Sect. 11.
No specific provisions laying down an order of priority in beneficial water uses exist in the United Kingdom. However, in considering an application for a licence to use water, water authorities must be satisfied that a copy of a corresponding notice has been served on any navigation, harbour or conservancy authority having functions in relation to the relevant water resources at any proposed point of abstraction, and on any drainage board within the district in which any proposed point of abstraction is located 1/. The Water Resources Act 1963 introduced a system of licensing for water abstraction. The general effect of the present licensing provisions is that no person is permitted to abstract water from any source of supply except in accordance with a licence to abstract granted by the Water Authority for the area 2/. Nonetheless, an exception to the general licensing requirement for water use is made in respect of uses made by an occupier of land contiguous to the water where the abstracted waters are to be used for agricultural purposes 3/. "Agriculture" in this context is defined to include the keeping of livestock including any creature kept for the production of food 4/. As regards aquaculture, the water abstraction, therefore, will not require a licence provided that the fish farmer is the occupier of land contiguous to a watercourse and that the fish in question are kept for the production of food. Conversely, a water abstraction licence will be required where fish are farmed, for example, for ornamental purposes or for restocking other waters.
1/ In assessing the demand for water, the water authorities must, according to Section 24 of Water Act 1973: prepare an estimate of the future demand for use of that water during a twenty year period from the date on which the survey is completed, or such longer or shorter period from that date as the appropriate Minister or Ministers may in any particular case direct; prepare a plan for action to be taken during that period by the authority (whether by way of executing or otherwise) for the purpose of securing more efficient management of water in their area, including the meeting of future demands for water and the use of water and restoring or maintaining the water quality of rivers and other inland or coastal waters in their area; and carry out a survey of the water in their area, the existing management of that water, the purposes for which it is being used and its quality in relation to its existing and likely future uses, and to prepare a report setting out the results of the survey.
2/ Water Resources Act, 1963, Sect. 23.
3/ Water Resources Act, 1963, Sect. 24(2)b.
4/ Water Resources Act, 1963, Sect. 135(1).
Malawi acknowledges a distinction between private water (which may be privately owned) and public water (which may not). No ownership is possible in the running water over the surface of the ground or contained in or flowing from any river, spring or stream or natural lake or in a pan or swamp and all underground water. Any stagnant pan or swamp wholly contained within the boundaries of any private land is private water 5/. All public water is vested in the President and the use of public water (direct, dam, storage, abstraction, etc.) is prohibited except with lawful authority. Sources, quantity, period (whether definite or not) are defined in the grant. Only the taking of public water for fighting fires is free. Apparently, there is no legal status regarding priority of uses of public water nor is any reference made to use of water for aquaculture or fishing purposes in the Water Law. In case of private water, the right to use is a normal attribute of the ownership of this water.
5/ The Water and Resources Act of 6 May 1969, Sect. 3.
Panama, in its turn, has a quite distinctive legal regime for water use. Water is not susceptible of ownership. All waters belong to the public domain and their use is subject to government permits or concessions 1/. The latter will only be granted for any demand for "beneficial use" of water 2/, that is to say a use which serves directly its concession holder or permittee, which is rational and which conforms to the social and public interests 3/. The following are considered as beneficial uses of water: domestic use and use for public health purposes, as well as use for agriculture, industry, mining and energy purposes and use for animal health and recreational purposes 4/. Highest priority is given to the use of water for public health purposes as this use serves best the social and public interest. Regarding other uses, priority will be given to existing use rights and then to the use which serves best the social and public interests if any controversy arises among existing rights or to decide on specific demands 5/. There is no definition of "agriculture", nor any reference to fishing or aquaculture. The point is to what extent does aquaculture serve the public and social interests of the State. A similar priority system exists in Ecuador, where among different uses, whenever water is insufficient in quantity to satisfy more than one use, preference will be accorded to the use which best serves the economic and social interests of the country 6/. The Water Act lays down the following priorities, which the authorities may modify in the event of a "social emergency":
1. supply of population centres, domestic needs and livestock watering;
2. crop and animal husbandry;
3. energy production and industrial and mining uses;
4. other uses.
1/ Decree-Law No. 25 of 22 September 1966, Art. 15; and Art. 16 reads that the right to use or to discharge waste water can only be acquired through (a) a permit (period of maximum one year, and special purpose); (b) temporary concession (3 to 5 years, and special purpose); and (c) permanent concession.
2/ Ibid., Art. 15.
3/ Ibid., Art. 16.
4/ Ibid., Art. 16.
5/ Ibid., Art. 40-42.
6/ Water Act of 1972, Sect. 25.
However, the first priority mentioned in the above list may not be modified in any event 1/. The point is to what category does the water use for aquaculture purposes belong. The only reference made is the following: the Water Resource Institute of Ecuador is empowered to grant a water use right in respect of sections of rivers and other natural or artificial watersheds for the culture, harvesting and exploitation of "aquatic flora and fauna" 2/. Before doing so, the Institute must obtain a report from the Fisheries" Department of the Ministry of Natural Resources and Tourism and comply with the terms and conditions prescribed by law. Meanwhile, priority must also be given to considerations of social interest laid down in the Marine Fisheries and Hunting Act. In granting such authority, preference will be given to the harvesting of juveniles of species to be cultivated and exploited 3/.
1/ Water Act of 1972, Sect. 34 and Water Act Regulation, 1973, Reg. 85.
2/ Supreme Decree No. 40, issuing the Water Act Regulations, 1973, Regs. 126-127.
The use of public waters for aquaculture purposes is clearly regulated in Guatemala. Indeed, the Governmental Decree No. 1235 of 1932 4/ states that the Municipalities in agreement with the Ministry of Agriculture are empowered to grant the use of public waters (fresh or salted) to establish lakes, backwaters or ponds assigned for fish hatcheries or fish ponds, provided that no damage is caused to the public health.
4/ Law which regulates the Freshwater Fisheries and Fisheries.
The Polish Water Law distinguishes between the flowing and stagnant surface waters. Flowing water, except water in ditches, is the property of the State; stagnant water and water in ditches are the property of the land-owners where such waters occur. The groundwater, except water in wells, is also the property of the State. The basic method of regulating water consumption is the issue of a water licence. It is an individual and unilateral administrative act, granting to the persons applying for such a licence the specific right to utilize the water and fixing the respective duties. A legal water licence is required, among others, for fishing purposes, considered as a specific use of water, i.e. one which exceeds public or normal use of water 5/. The control of water use is linked with the economic plans. Thus, irrespective of the subject applying for a water licence, a licence will be refused if the proposed use of water is contrary to the requirements of national economic development or the protection of the natural environment, as set up in the social and economic plan for the country's development 6/.
5/ The basic forms of water use are: public or normal use of water. The latter is available for anyone willing to utilize it for personal and domestic purposes, without the need of a water licence.
6/ The Water Law treats in a special manner irrigation and drainage installations, which include facilities for fish ponds. Indeed, irrigation and drainage installations are divided into basic ones such as canals, weirs, water reservoirs (intended exclusively for agricultural purposes) [...] and detailed ones such as ditches, sprinklers, fishing ponds [...] The costs of basic installations are borne by the State while the detailed installations are financed by the State, which means that part of such expenses is refunded to the State by the respective land-owners in the form of annual land improvement dues. Majewski T., "Economic stimuli of rational water management in Poland, Present state and predicted trends of development". Seminar on the rational use of water in industrial processes, 29 March 1985. Surowiec Stanislaw and Deja Andrzej, "Water law and its application in Poland", 1977.
France, as opposed to the above mentioned countries, does provide for the use of maritime water (sea water) and the use of fresh water for aquaculture purposes.
Sea water is considered as "res communis", that is to say that its nature does not allow any ownership and that the use of it belongs to everyone without limits or permission 1/. However, when the use of such water involves the possession of a part of the public maritime domain, the user must obviously ask for due authorization from the competent authorities. Consequently, as far as aquaculture is concerned, two situations must be distinguished:
1. the fish farm is located on the Public Maritime Domain (PMD): no other authorization is required in addition to the one asked to establish the fish farm, if the water abstraction facility (including pumps, etc.) does not imply a supplementary encroachment/trespass on the public maritime domain; or
2. the fish farm is located on private property 2/, but using seawater. The abstraction of such water is subject to the terms and conditions set out in Decree No. 83-228 if the water intakes are located on the Public Maritime Domain 3/.
1/ Civil Code, Art. 714.
2/ Decree No. 83-228 of 22 March 1983, Arts. 1 and 2, establishing the rules governing mariculture operations, as modified by Decree No. 87-756 of 19 September 1987.
3/ Decree No. 83-228 cit., Art. 17.
On the other hand, the use of surface and groundwater (catchment, diversion, etc., installations) for fresh water culture is submitted to an authorization 5/, unless the water source derives from or flows within privately owned land or the user has some existing ancillary right or prior use rights in this respect.
4/ Rural Code, Arts. 97, 106 and 107.
There are no legislative provisions establishing a general order of priority between different uses, areas or existing rights. However, in cases where a priority of use has to be established, the National Water Committee, at the national level, and the relevant Basin Committee, at the local level, are consulted and the decision granting priority to one use or area is adopted by Order of the Council of State 1/.
1/ Law No. 64-1245 of 16 December 1969, Arts. 15 and 31.
Priorities among existing rights to the use of private waters are regulated by the provisions of the Civil Code relating to land ownership. As to the use of public waters, existing rights are taken into consideration during the procedure of inquiry preceding the issuance of water use titles.
Because of the different conditions existing from one country to another and the limited amount of information available, it is difficult at present to make a thorough analysis of the existing situation with respect to water resources administration and legislation for aquaculture purposes. However, from the above country analysis, it was noted that several countries have a statute on water use for aquaculture purposes (Mexico, Guatemala, Poland, France). Many others have a number of discrete enactments which either have an indirect bearing on water use and control on the subject (U.K., Zambia) or which cover only certain aspects of water management without reference to aquaculture as such (Malawi, Panama). Most of the latter countries acknowledge the right to use water for agriculture, animal health, etc., and the point is to know whether or not fish culture can be understood as such or not.
In addition, even in those countries whose laws refer to aquaculture, it is rarely specified if the authorization granting the right to use water for fish culture has a temporary character or not, or if the duration of the water licence agrees with the duration of the aquaculture licence, if any exists 2/. At the same time, it is also not known whether the duration meets or is adapted to aquaculture needs.
2/ The only known countries where the aquaculture licence is issued in complete accordance with the Water Laws are El Salvador, Guatemala and France. Indeed, in the former country the General Board of Fishing Resources must grant a permit to engage in aquaculture operations in accordance with the Law on uses of water (General Law on Fishing Activities, Decree No. 799 of 1981, Art. 46).
The priority given to the use of water for aquaculture purposes is not always clear in those countries where a priority order exists: it is most often placed after domestic use and use of livestock watering or for public interests; it is sometimes preceded or followed by the use for agriculture purposes and usually followed by the use for industries or recreational purposes, etc. (depending on whether aquaculture is included in one or another category). Obviously water management policies are to optimize the use of water (domestic, drinking, etc.) and then the other uses. But the criteria for classification do not appear very clear. Lack of awareness of the importance of regulating the use of water for aquaculture could be a reason. But it is also true that aquaculture operations have been integrated in a legislative framework quite recently for many countries while the water laws are much older.
Finally, among the countries analysed, only in France is there a different legal statute between the use of seawater and the use of fresh water for aquaculture purposes (bearing in mind that most countries adhere to the principle that all waters vest in the State). It appears that no significance is attached to the various types of existing aquaculture techniques, i.e. brackish, fresh and marine water fish culture.
Aquaculture is likely to produce significant environmental impacts on rivers, lakes and coastal areas, primarily as a result of the discharge of wastes into them. On the other hand, however, water pollution is a great threat to aquaculture.
Laws dealing with the problems of water discharge, water quality and environment
protection are likely to be found in almost all countries. Pollution prevention
regulations, water laws, natural resources conservation laws, health codes as
well as other laws might regulate these matters.
Viewed from the perspective of aquaculture operations, legislation on water discharge varies from country to country. First of all, not all countries' legislation deal specifically with discharge of used water by fish farms. The heart of such laws is often the general requirement that "the discharge of any pollutant" must be authorized; in other terms, the most important common feature is the requirement of prior authorization for discharge of waste into water.
This authorization can either be incorporated in the grant (permit or concession) to use water (Zambia, Ecuador) or be given separately (U.K., Korea, Malawi and Poland).
Zambia has specific legislation with respect to the qualitative and quantitative aspects of water. Where water is used under a grant, as is the case for fish breeding purposes, the metering of the water as well as control over water waste may be prescribed by terms and conditions drafted in the grant 1/. Further, a legal obligation for individuals to take proper antipollution measures at their own expense may arise from a term or condition which the water authority may attach to the grants, whereunder water users may acquire rights to use public and in some cases private water 2/. Auxiliary legal provisions authorize the Minister of Health to enact regulations governing (a) the setting of quality standards for effluents from any source and (b) the establishment and operation of factories whose activities may result in water pollution 3/
1/ The Water Ordinance, No. 34 of 1948, as amended, Sect. 28(b).
2/ The Natural Resources Conservation Act No. 53 of 1970, Sects. 13(3) and (4).
3/ The Public Health Act No. 12 of 1930, as amended, Sect. 78.
According to the Ecuadorian Water Regulations, studies and works concerning water catchment, conduits, diversion, storage and discharge of water may only be executed upon approval of the Water Resources Institute of Ecuador and having regard to legal requisites relating thereto 1/ Several characteristics of a water right are that it is granted on the condition that no interference arises with other uses, that there is water in sufficient quantity and appropriate quality available, and that the authorities approve the plans and the installations (intakes and discharge) 2/. The Water Authorities supervise, jointly with the Ministry of Health, all installations for the treatment of water that has become polluted 3/ On the other hand, pursuant to the Health Code, the following prohibitions exist:
(i) nightsoil, waste water and industrial water may not be discharged, directly or indirectly, into streams, rivers, lakes, conduits or any watercourse used for domestic, agricultural, industrial or recreational purposes, unless they have first been subjected to treatment to render them harmless to health 4/
(ii) the discharge into sewerage systems, streams, conduits, rivers, lakes or sea, or the seepage into the soil of effluents containing contaminants that are harmful to human health, the fauna, the flora or to property when such effluents do not conform with the technical rules and regulations prescribed by the authorities 5/.
1/ Supreme Decree No. 40 issuing The Water Act Regulations, 1973, Art. 187.
2/ Supreme Decree No. 369, the Water Act 1972, Art. 30.
3/ The Water Act Regulations 1973, Art. 92.
4/ The Health Code No. 188, 1971, Arts. 12 and 17
Water permits are required in Poland, in particular for the discharge of waste water into waters or soil, the collection of waste water and wastes on the littoral, and the discharge or supply of water by means of equipment traversing the land of another freeholder. The permit is issued on the basis of a hearing where the competent administrative body considers and analyses all aspects of the water use intended by the users and the expected impact of that use on water management of the area in question. The Polish Water Code provides for a special clause allowing the administration, at the time of the authorization or later, to require the construction, enlargement, or modification of sewage purification installations or other installations for the prevention of water pollution 6/.
6/ The Polish Water Code of 30 May 1962, Art. 48.
Moreover, Poland also set up a system of water pollution control based on the prohibition of water pollution in terms of discharge or introduction of effluents, subject to penalties for violations. The prohibitions are formulated in terms of water quality requirements, based on a system of classification of waters according to the ability to receive and also overriding water quality requirements to be imposed irrespective of usability 1/. Requirements are also imposed on the treatment of effluents prior to discharge, and limitations are placed on specified substances contained in them. Of particular interest is the fact that the discharge of effluents, whatever their quantity, is prohibited if they contain, among other things, "substances imparting a persistent smell or taste to the water or to equipment used in fish rearing" 2/.
1/ Ordinance of 28 February 1962 of the Council of Ministers.
2/ Lichorowicz A., "Le droit des eaux en agriculture polonaise", 13th European Congress and Colloquium on Agrarian Law, 23-26 September 1985; and Majewski T. "Economic stimuli of rational water management in Poland. Present state and predicted trends of development", Seminar on the rational use of water in industrial processes, 29 March 1985.
The fish farmer in England or Wales may require a licence from the Water Authority for his area to abstract water for fish farming purposes depending on the nature of his enterprise, but he will invariably require consent from the water authority to discharge water into a watercourse whatever the nature of the enterprise 3/. Such consent may stipulate a range of conditions governing the manner in which water may be discharged and, amongst other things, these may regulate the nature, composition, temperature, volume and rate of discharges and the periods during which the discharges may take place 4/. Failure to obtain consent may result in an offence by the person causing the discharged polluting matter to enter a stream 5/ or the offence of causing trade or sewage effluent to be discharged into the stream 6/. Moreover, consent to discharge water into a watercourse will be required whether or not the initial abstraction required a licence.
3/ The Control of Pollution Act, 1974, Sect. 34.
4/ Ibid., Sect. 34(4)(b).
5/ Ibid., Sect. 31(1).
6/ Ibid., Sect. 32.
Since 1978, Malawi has had a general prohibition against water pollution; polluted effluents or waters may be discharged in public waters only under prior written consent delivered by the Minister responsible for Agriculture and Natural Resources 7/. The persons granted permission shall pay the fees and rents specified in the Minister's consent and comply with every obligation (i.e. works or analysis of water or effluent at its own expense) and conditions specified therein 8/. The legislation 9/ in the Republic of Korea, has the same intent. In fact, persons wishing to install pollution discharging facilities must obtain the consent of the Minister of Health and Social Affairs; "permissible" criteria for water pollution is established by the Minister of Health and Social Affairs.
7/ Water Resources (Water Pollution Control) Regulations, 1978, Regulation 4.
8/ Ibid., Regulation 12.
9/ Fisheries Amendment Law, 1971, and the Pollution Prevention Law.
The French Decree of 23 February 1973 1/ defines the conditions under which discharge (among other substances) of liquids may occur. Pursuant to Article 1 of this Decree, the following are subject to authorization: any direct or indirect discharge, drainage and deposit of water or matter able to alter the quality of waters, including surface waters, underground waters and maritime waters within the territorial limits. The application must state, for instance, the nature and importance of the discharges, the equipment to be used to discharge and the measures taken to avoid and eliminate water pollution. The discharge authorization is based on the waste load capacity of the recipient water body 2/.
1/ Decree No. 73-218 of 23 February 1973, regulating the discharge, dumping, throwing and deposit of liquid or other matters likely to contaminate surface and underground water.
2/ Circular of 4 November 1980.
As opposed to the previous countries, some countries deal specifically with discharge of water by fish farms: aquaculture related laws and discharge rules might be part of a single package, insofar as the aquaculture concession or permit creates reciprocal obligations between the user and the administration, and among them there exists the obligation for the fish farmer to provide suitable installations or equipment to discharge the used waters in order to conserve the quality thereof. This is the case of New Zealand and El Salvador, for instance. In New Zealand, the applicant for a fish farm licence must obtain (before application) a right to take or discharge water as required under the Water and Soil Conservation Act 1967. The applicant, immediately after making an application for any such right, must give notice thereof to the acclimatization society in whose district the proposed fish farm will be situated and each acclimatization society into whose district water from the proposed farm may be discharged 3/. Further, the applicant must supply sufficient evidence that all rights, licences and other authorizations allowing him to draw water from and return water to any lake or river or stream, to take or discharge water into the sea... have been duly granted and are in force 4/. It is a condition of every fish farm licence, whether specified in the licence or not, that (i) all rights, licences, etc. relating to the use or discharge of water in the operation of the fish farm shall be kept in full force and effect so long as fish farming operations are carried out under the licence; and that (ii) means are provided to ensure that water can be supplied to every pond on the fish farm and that it cannot be discharged without being treated by the process approved by the Director General 5/. In addition, as regards this subject matter, the Minister may impose other conditions as he thinks fit 6/. The Act further states "without limiting the provisions of regulation 8(4) of these regulations, the Minister shall, where practicable, make it a condition of every fish farm licence that, subject to compliance by the licensee with any requirements of the Water and Soil Conservation Act 1967, and with the terms of any right granted under that Act to the licensee, all effluents from the fish farm shall, after being treated as mentioned in paragraph (b) of regulation 8(3) of these regulations, be discharged into the sea or into estuarine waters or, where that is not practicable, shall be further treated and disposed of in a manner specified by the Minister".
3/ Fresh Water Fish Farming Regulations, 1983.
4/ Ibid., 1983, Sect. 6(4).
5/ Ibid., 1983, Sect. 8(3), paragraphs (a) and (b).
6/ Fresh Water Fish Farming Regulations, 1983, Sect. 8(4).
The French legislation is broadly similar. A French freshwater fish farmer is not able to start his activities without the following prior authorizations 1/:
(i) to create such a farm 2/;
(ii) to abstract and discharge water 3/; and
(iii) to open a "Classified Installation" to protect the environment, if necessary 4/.
1/ Decree No. 85-1400, Art. 3.
2/ Rural Code, Art. 432.
3/ Rural Code, Arts. 97, 106 and 107.
4/ Law No. 76-663 of 19 July 1976 on the "Classified Installations" amended and completed by Law No. 85-661 of 3 July 1985, and executed by Decree No. 77-1133 of 21 September 1977.
The General Law on Fishing Activities in El Salvador explicitly prohibits conveying used/waste waters from fishing activities without proper treatment on beaches and coastal areas, in rivers, lakes, natural or artificial watercourses or to provoke any other form of contamination 5/. Finally, in other cases, discharge of used waters by fish farms is covered by a specific regulation. France again, can, together with other countries like Hungary and Ecuador, be listed as the country in which a particular regulation exists regarding the discharge of water by certain fish farms. Shellfish culture farms and more particularly those equipped with oyster depuration facilities are subject to a special regime: the waste waters must in all cases be conducted towards a sewerage system and never into natural waters 6/.
5/ The General Law on Fishing Activities, Decree No. 799/1981, Art. 51(b).
6/ Decree on the technical conditions to be satisfied by shellfish breeding farms authorized to market or sell oysters directly, JONC of 6 July 1978.
Hungary, in its turn has a whole set of regulations and guidelines regarding the quantity of water supply for fish breeding purposes 7/, the disposal of sewage in fish ponds and in storage reservoirs used for fish farming 8/, and providing for a progressive system of effluent fines 9/.
7/ Instruction No. 7/1969 OVH-AH of the President of the National Water Affairs Office on the regulation of water supplies for irrigation and fish breeding purposes, and rates thereof, 19 March 1969, MEM E No. 6, 19 March 1969, p. 228, and guiding principles for the uniform interpretation of the regulations governing the use of and fees of water for irrigation and fish breeding purposes, undated, NEM.E. No. 27, 3 October 1969, p. 672.
8/ Fisheries in Hungary by A. Lajos Dobrai and Gyula Pekh,
9/ Order No. 2/1970 - State Decree No. 40 of 1969.
The situation in Ecuador is somewhat different. Generally speaking, it is prohibited, according to the Fisheries and Fisheries Development Act 1/ to direct the used waters, without proper treatment, towards the shores/beaches and seabanks, rivers, lakes, natural and artificial basins as to cause any form of pollution 2/. Therefore, as seen above, the Water Resources Institute of Ecuador has to approve, among other things, works concerning discharge of water 3/. In addition to this, shrimp farming industries, in order to obtain tax exemptions or special incentives according to the category of enterprise they belong to must, inter alia, possess a system of treatment for the water used, approved by the Directorate General for Fisheries and other competent authorities, to avoid environmental pollution 4/. Apparently, Ecuador tries several methods in order to prevent fish farmers from polluting the environment when discharging used water. The question then is what is the most efficient way to compel the fish farmer to protect, preserve and respect the environment?
1/ Decree No. 178 of 1974.
2/ Fisheries and Fisheries Development Act, 1974, Art. 2.
3/ Supreme Decree No. 40, issuing the Water Act Regulations, 1973, Reg. 127.
4/ Ministerial Agreement 13319 of 1976, Arts. 3(i) and 3(j).
However, all these rules place a considerable amount of power into the hands
of the water authorities to determine whether a fish farming operation should
be conducted or not, and if so at a particular site.
The importance of water quality and its protection, for aquaculture purposes, has not received much attention and the question has to be asked whether countries are aware of the vulnerability of aquaculture to pollution damage. Again, environment protection laws, water laws, natural resources protection and conservation laws are dealing mostly with water pollution control regulations, either in a general or specific way, with any aspect of it being considered separately. General regulations might prohibit pollution in leased areas, or several plants in the same area, or create civil liability for any damage or consider policies on marine pollution control. In Ecuador, in order to protect waters from damage by pesticides and use of other harmful materials in farming activities, and at the same time the agriculture farms from salt influences, the construction of fish ponds and hatcheries must allow for a security strip of at least 200 metres calculated from the point where the agriculture farms start 5/. Polluters may be guilty of an offence and subject to the payment of penalties. Preservation of the quality of water for aquaculture might be dealt with separately. For instance, several governments have established "maritime protected areas" where special attention is given to conservation and use of the coastal environment, controlling, for instance, diseases and the introduction of non-indigenous species (see below) 6/.
5/ Regulation No. 12771 of 1975, Art. 4.
6/ See sections on use of land for aquaculture (above) and on environmental aspects (below).
Few countries make any real distinction between the control of inland water pollution and coastal water pollution. The question must be asked if this is justified for the actual quality standards? Within the European Community, Council Directives have been made in order to protect, preserve or improve the quality of waters relevant to aquaculture. The waters concerned are salmonid and cyprinoid waters on one hand 1/ and shellfish waters on the other hand 2/. Pursuant to both directives, quality objectives are met by fixing, firstly, parameters to measure the quality of the waters and, secondly, by establishing a set of reference values. The competent authorities in the Member States should carry on sampling operations and those samples should be in conformity, for at least a certain period (one year), with the values set by Member States. The parameters (physico-chemical) taken into consideration with regard to salmonid and cyprinoid waters are the following: temperature (°C), dissolved oxygen (mg/l O2), pH, suspended solids, total phosphorus, nitrites and some others. These parameters apply also to shellfish waters, but in addition to them there are: salinity, suspended solids mg/1, substances affecting the taste of shellfish, faecal coliforms, etc. The protection and improvement of the environment necessitates, according to the Council, concrete measures to protect waters, including shellfish waters, against pollution and, further, it is necessary to safeguard certain shellfish populations from various harmful consequences, resulting from the discharge of polluting substances into the sea. The Directive of 1979 therefore covers those coastal and brackish waters designated by the Member States as needing protection or improvement in order to support shellfish life and growth 3/. Shellfish culture is especially dependent on the maintenance of the high quality of coastal waters. Oysters, and sometimes mussels, are eaten raw, hence the preservation of public health requires close attention to water quality standards. The most important shellfish production basins need to be protected against hazardous effects of other human activities.
1/ Council Directive 78/659/EEC, OJEC No. L 222/1 on the quality of fresh waters needing protection or improvement in order to support fish life.
2/ Council Directive 79/923/EEC, OJEC No. L 281/47 on the quality required of shellfish waters.
France, Mexico, Ecuador and the Philippines have rules covering the preservation of high quality standards with regard to their shellfish culture.
In 1974 Mexico established a special Program on the Health of Bivalve Molluscs 4/. Accordingly, waters used to culture those species have been classified into three categories, depending on the presence of coliform bacteria: approved waters, conditionally approved waters and waters of restricted use. The following physical and chemical parameters have been used to classify the waters: temperature and colour, pH, percentage salinity, dissolved oxygen, minerals and toxic organic elements. Bivalve molluscs cultured in waters defined as "of restricted use" will have to be depurated before being authorized for sale on the market. Whenever the water quality is below the established limits, it is prohibited to harvest, or exploit the species therein, or market them. In addition, the general regulation on the sanitary control of fisheries products 5/ also covers the subject. It states on the one hand, that shellfish depuration activities must be carried out in those places where a continuous flow of salt or fresh water exists which does not contain any contaminants. On the other hand, for the culture of shellfish and some other species, specified in the Act, sanitation certificates are to be issued with respect to the quality of the waters in the area where the fish farm operates. Such certificates can be obtained by means of an application to the Secretary of Health and Hygiene, upon compliance with the rules regarding water quality. These certificates must be renewed regularly.
4/ Regulation relating to the Mexican Program on the Health of Bivalve Molluscs, 1974.
5/ Regulation of 5 June 1980, D.O. No. 5, 7 July 1980, p. 9, second part.
In France, the subject falls within the set of rules drafted to protect the culture of products to be eaten raw. First, the French coast has been classified into healthy ("salubre") and non-healthy ("insalubre") areas 1/. Whether or not an area is salubrious depends on the degree of contamination determined by counting the faecal germs existing in the living shellfish. In those areas recognized as healthy, shellfish culture farms may operate and market their production, while in non-healthy areas, no farm establishment can be authorized 2/. The harvesting of shellfish is specifically authorized by the Department of Maritime Affairs in case of oyster holding or purification operations 3/. Secondly, the condition of the area requested for fish culture operations is studied and determined during the preliminary investigation phase of the application for a concession for establishment 4/. Finally, the oyster culture facilities are protected by a surrounding area, established by law, wherein it is prohibited to deposit or discharge any substance which could be harmful to the sanitary quality of the oysters 5/.
1/ Decree of 12 June 1969 amending the decree of 20 August 1939 on the healthiness ("salubrity") of oysters, mussels or other shellfish.
2/ Decree of 12 October 1976 regulating the salubrity rules of shellfish culture areas.
3/Ibid., Art. 3.
4/ Decree of 28 March 1919, Art. 4. Decree governing concessions for fishery establishments.
5/ Decree of 30 October 1935 relating to the protection of drinking water and oyster culture farms. (J.O. of 31 October 1935).
The Philippines, in its turn, seeks to protect shellfish culture, not from the point of view of water quality but by means of sanitation certificates stating the quality of the shellfish. And finally in Ecuador it is prohibited to harvest molluscs or crustaceans in the neighbourhood of drainage areas or doubtful hygienic areas 6/.
6/ Code of Maritime Police, Art. 102.
France, Mexico, Colombia and Spain have general regulations regarding the quality of waters for aquaculture operations.
In Mexico 1/ and Colombia 2/ the Minister of Health states that water used for aquaculture must meet the quality requirements established by law.
1/ The Regulation on the Sanitary Control of Fisheries Products, D.O. of 7 July 1980. Culture in freshwater, as well as maritime waters, coastal lagoons, rivers and lakes are covered.
2/ Decree No. 1594/84 of the Ministry of Health establishes rules and criteria for the control of the quality of water and of waste water. Permissible criteria regarding the quality of water to be used in different aquaculture activities are set out.
In areas declared as being of interest for mariculture 3/, the Spanish law provides for a general prohibition directed towards population centres, agriculture enterprises, and industries against the discharge, without proper sewerage systems, into the sea, directly or indirectly, of water or waste products which might contaminate such areas as to damage aquatic species. Consequently, existing sewerage systems should be adapted, whereas new sewerage systems must be approved by competent authorities and be in conformity with the legislation on water treatment and waste disposal 4/.
3/ Law No. 23/1984 of 25 June 1984, Marine Cultures. Art. 5 reads: "The Government is empowered to declare areas as being of interest for mariculture which, because of their excellent condition for the production of Crustacea, molluscs and shellfish in general, need to receive special protection". Art. 16.
4/ Ibid., Arts. 23 and 24 "water quality".
France, with respect to the preservation of the quality of the water for aquaculture operations, has several kinds of rules:(i) some of them regulate the co-existence of certain industrial activities in aquaculture areas, such as exploitation of minerals 5/, or the extraction of any materials on the Public Maritime Domain 6/, by means of exploitation concessions or authorizations;(ii) some legal instruments have been introduced to protect the environment and, at the same time, the interests of traditional users of the sea: the impact studies 7/ the "classified installations procedure" for environment purposes 8/, and regulations relative to the discharge of wastes or polluting substances (telluric and also pelagic) into surface waters, and the waters of the sea within the territorial limits and finally, the Director of Health and Social Affairs is consulted by the Director of Maritime Affairs during the administrative enquiry to which each application for concessions is submitted. The opinion of the former is decisive because he determines the compatibility between the aquaculture enterprise and other activities as regards public health 9/.
5/ Act No. 76-646 of 16 July 1976 and its executive Decree of 18 June 1980: the exploitation of minerals in the marine sub-soils of the Public Maritime Domain is subject to obtaining a "mining title" from the competent Department.
6/ Decree No. 84-285 of 13 April 1984 provides that any extraction of materials on the public maritime domain cannot take place without authorization delivered by the "Commissaire de la Republique" of the Department (Art. 2).
7/ The impact studies introduced by Art. 2 of the Act No. 76-629 of 10 July 1976: ("The Nature Protection Act") and enforced by Decree No. 77-1147 of 12 October 1977. This text recognizes, among others, the protection of environmental spaces, the preservation of animal and plant species, the maintaining of biological balance of which those species are component elements and the protection of natural resources against all agents of degradation to which they are exposed (Art. 1). Decree No. 85-1400 prescribing the forms and conditions relative to fish farming concessions and authorizations and the formalities attaching to declarations of existing bodies of waters as contemplated in Art. 433 of the Rural Code, reads in its articles 9 and 10:"9. Within two months following the definitive receipt of the application, the Commissioner of the Republic shall either:1. notify the applicant that the application is refused...; or
2. call upon the applicant to carry out, as required by article 10 and within not more than two years, under penalty of being deemed to have withdrawn from the undertaking, an impact assessment or an impact statement within the meaning of Decree No. 77-1141 of 12 October 1977 as cited in the preamble hereto.
10. The following shall be subject to an impact assessment: new trout farming installations and fish rearing plant for experimental purposes; and fish farms where production and marketing amounts to two tonnes or more, or where the surface area under water is of three hectares or more, as well as any extension of fish farms where the effect is to bring their annual production and marketing or their surface area under water to a figure equal to or in excess of the limits here laid down. An impact statement shall be required for any newly installed fish farm other than those defined in the previous paragraph."
8/ Law No. 76-663 of 19 July 1976, as amended by Law No. 85-661 of 3 July 1985 and its Decree No. 77-1133 of 21 September 1977 according to which certain dangerous plants are submitted to special procedures. As "dangerous" are meant those which can be harmful for agriculture, public health, nature, environment, etc.
9/ Decree No. 83-228 establishing the rules governing mariculture operations, as modified.
At this point it can be questioned whether one alternative or another is more effective in achieving the goals of water quality for aquaculture.
The alternatives given in previous examples are numerous: general prohibition (Spain), sanitary controls (Colombia and Mexico), general quality Standards, sphere of protection (France), impact studies (France), approval systems, etc. (Colombia). One should not forget that all of these laws provide for punishment ranging from fines to imprisonment, and from prohibition on sale to closing of aquaculture establishments, etc. Another question is whether enough information is available to assess the quality standards used and the effectiveness of the methods to protect aquaculture operations. French legislation, for instance, provides for a variety of alternatives. One can speculate on whether the aquaculture farmer really feels protected from large-scale pollutions such as industry, agriculture, and population centres or if he feels that he is one himself.
Finally, the question should be asked whether these various controls aimed at water quality, which operate at almost every phase of the aquaculture process, are more likely to lengthen procedures for obtaining the necessary approvals, or whether they do meet their intended objectives.