Opportunities and challenges in a complex legal landscape.
1. INTRODUCTION
Land-based salmon farming has roots going back to the sixties and seventies. The challenge has always been to make this mode of production commercially viable. In recent years, however, the development of new technology – especially recirculating aquaculture systems (RAS) – has created opportunities for profitable operations. These new technological solutions have paved the way for full-scale commercial production on land – from brood fish to harvestable salmon, i.e. the entire life cycle of the fish. As a result, land-based projects have attracted increased interest from investors and the industry itself, both in Norway and worldwide, especially in China and the US.
Successful land-based fish farming has several different aspects – biological, technical, financial, ecological and also legal. In this article, we will present the relevant regulatory framework in Norway.
2. LEGISLATIVE APPROACH – GOVERNMENT FACILITATION
The Norwegian government’s position has consistently been that land-based fish farming should be encouraged, and the authorities have put forward regulatory initiatives to facilitate its development.
The legal landscape is quite complex, covering both private law and public law. Land-based fish farming does not raise any special questions as regards private law (for example the acquisition of equipment and fishmeal or sale of the fish). Therefore, we will focus only on public law issues, such as aquaculture licensing regulations and other governmental requirements.
This article is limited to Norwegian law. Our experience of land-based fish farming projects in other countries is that the regulatory framework is less detailed than that in Norway. A characteristic of the Norwegian regulations is that they are based on an already well-developed regulatory framework for the marine aquaculture industry. In countries that do not have the same long tradition of aquaculture, land-based fish farming is often regulated in much the same way as other primary industries.
In Norway, the starting point is that the rules for land-based fish farming are the same as the rules for net-based fish farming at sea. From a legal perspective, perhaps the two most interesting questions are: What are the differences in the regulation of net-based and land-based fish farming, and what are the legal opportunities and challenges when it comes to land-based fish farming?
3. LEGAL OVERVIEW – WHICH REQUIREMENTS MUST BE FULFILLED?
There are several legal requirements to be fulfilled in order to establish a land-based fish farm in Norway. These include at least the following:
- An aquaculture licence is required in order to start production.
- The production process and the equipment used must satisfy relevant technical requirements.
- Mandatory fish health and fish welfare standards must be met.
- Necessary permits from the environmental regulator must be granted.
- Permission is required to lay water pipes in the sea.
- The building of a production facility requires building permits and must be in accordance with public zoning plans.
Section 6 of the Norwegian Aquaculture Act requires that all permits from the various sector regulators must be in place before an aquaculture license can be allocated. If one of the sector regulators rejects an application for establishment, no aquaculture license may be granted. An application must therefore be carefully prepared in order to secure all the relevant permissions.
4. THE PROCESS OF OBTAINING A LICENSE FOR LAND-BASED FISH FARMING
4.1 The County Authority as the coordinating and decision-making body
The County Authority (in Norwegian: “fylkeskommunen”) is the coordinating body and the final decision maker when it comes to allocation of licenses for land-based fish farming. As soon as the company has found a suitable area for the production facilities and the planning and building authorities have approved the location and facility plans, the company may file an application for a fish farming license with the County Authority. The company does not have to send separate applications to each of the sector regulators; one application sent to the County Authority is sufficient.
The County Authority reviews the application and forwards the application to relevant sector regulators and the local municipality. The County Authority decides both the location of the site and the amount of biomass to be allocated. This is different from the process for marine farming: aquaculture licenses for cultivation of salmon and trout in sea are allocated in two stages. First, the Directorate of Fisheries decides which applicants shall be granted a license (the number of licenses is limited and they thus represent a scarce resource). Next, the County Authority processes the application for approval of the site.
According to the Norwegian Impact Assessment Regulations,[1] the establishment of a land-based fish farm may require a broad analysis of the environmental impact of the project, as well as the consequences for biological diversity, the landscape, recreation and leisure activities, cultural heritage, etc. This analysis is required if the establishment of the facility may have significant effects on the environment or society, or if the project requires a license under the Norwegian Water Resources Act, cf. Sections 7 and 8 of the Regulations.
4.2 The Municipality
The local municipality registers the application and notifies the general public. It also clarifies the relationship to the zoning plan and makes decisions regarding building permits, etc. Furthermore, the local municipality may express views regarding the need to evaluate the environmental impact of the production site.
Public plans adopted by the local municipality are particularly important for land-based fish farming because the production facilities are on land. The establishment of a fish farm must comply with adopted land plans, protection measures, the Planning and Building Act, and where relevant the Cultural Heritage Act.
This means that the area must have been identified for industrial activities in the municipality’s zoning plan. Therefore, existing industrial areas will normally be best suited for land-based fish farming. It is of course likely to be much more difficult to secure approval if the company aims to establish new industrial activities in otherwise undeveloped landscapes.
In Norway, there is a ban on development (for examples new buildings and terrain changes) within a distance of 100 meters from the sea or any watercourses. This restriction can however be amended in the municipality’s zone plan, for example for aquaculture purposes.
4.3 The Norwegian Food Safety Authority
The Norwegian Food Safety Authority (“NFSA”) is responsible for safeguarding the health and welfare of farmed fish, and decides on the application based on the Food Safety and Animal Protection Act and corresponding regulations. The legal basis for NFSA’s decision is Section 5 of the Regulations on the Establishment and Expansion of Aquaculture Facilities, Zoo Shops, etc.[2] According to Section 7 of the Regulations, NFSA assesses the following matters:
- the risk of spreading infection in and out of the aquaculture facility;
- the risk of infection with emphasis on the distance to watercourses and to other aquaculture-related activities;
- the company’s internal control system; and
- the aquaculture facility’s maintenance of a good living environment for the fish.
The NFSA makes thorough assessments of the project. If the application is successful, NFSA authorises a specific locality to produce up to a specified amount of biomass. However, the final decision lies with the County Authority.
4.4 The County Administrator
The County Administrator (in Norwegian “fylkesmannen”) decides on the application pursuant to the Pollution Control Act and makes statements on interests related to nature conservation, recreation and fishing, etc. Hence, it is primarily the County Administrator who must ensure that environmental aspects of the project are taken into account.
4.5 The Norwegian Directorate of Fisheries
The Norwegian Directorate of Fisheries makes statements related to any consequences for wild fish populations in the sea. The assessment is twofold: firstly, the consequences for the marine biological diversity in the area are assessed, and secondly, the consequences for the traditional fishing in the sea.
4.6 The Norwegian Water Resources and Energy Directorate
The Norwegian Water Resources and Energy Directorate is involved in all matters that include the extraction of fresh water, and in many cases plays a more significant role in relation to land-based fish farming than for aquaculture in sea because of the use of fresh-water in processing the harvested fish. The directorate decides whether the project is subject to a license requirement under the Water Resources Act. The project must obtain either a license or an exemption from the license requirement before the application is sent to the County Authority.
4.7 The Norwegian Coastal Administration
For obvious reasons, land-based fish farming does not require any permits according to the Norwegian Harbour and Fairways Act. However, any piping or wiring in the sea must be marked with signs. Permits for these must be secured from the Coastal Administration.
5. AQUACULTURE LICENSES
Until 1 June 2016, licenses for land-based aquaculture were subject to the same legal regime as for sea licenses. This means that there were:
- a limited numbers of licenses, with
- limited biomass per license (780 or 945 tons), and that
- the licenses were granted by the County Authority and the Directorate of Fisheries jointly
- for a substantial consideration.
In practice, this system was a “show stopper” for land-based fish farming, taking into account that the establishment of a land-based fish farm is far more costly than the establishment of a traditional farm at sea, due to costs related to acquisition or lease of land, advanced equipment, etc.
In order to facilitate land-based fish farming, the Norwegian Government decided that special licenses should be issued for land-based fish farming[3]. In contrast to the licenses for fish farming in the sea, there are no specific limitations as regards numbers of licenses and biomass per license. Furthermore, the licenses are allocated by the County Authority free of charge. These licenses can only be used on land and at one specific site. They cannot be transferred to fish farming at sea.
If the intention is to cover the whole life cycle of the fish, a hatchery permit is required in addition to the license for food fish production, i.e. in these cases the facility will need two types of aquaculture licenses.
6. TECHNICAL REQUIREMENTS
6.1 Requirements for methods, installations and equipment
According to Section 20 of the Aquaculture Regulations,[4] methods, installations and equipment must be appropriate as regards fish welfare, and can only be used in a fish farm when the consequences for the welfare of the fish have been documented. This means that the fish welfare effects must be documented in advance, that is, before the fish are put into the tanks. For testing of methods, installations and equipment that is not regulated by the animal experimentation regulations, there is an exemption from the documentation duty, provided that the testing is carried out as a necessary step in obtaining documentation on the method’s consequences for the welfare of the fish. The exemption is subject to quite strict conditions, and a notice must be sent to the NFSA, so that the NFSA can ensure that testing takes place in accordance with the conditions.
Without this exemption, it would in many cases be very difficult to establish land-based fish farms, due to lack of documentation of welfare effects. The NFSA will normally require documentation from a pilot project in a small scale before permission for full-scale commercial production is granted.
6.2 Regulations on technical standards for land-based fish farms
There is a separate regulation on technical standards for land-based fish farming that entered into force on 1 January 2018.[5] The main purpose of these technical standards is to prevent fish from escaping. The regulations refer to the Norwegian Standards NS 9416:2013 and NS 3424:2012.
All new projects must comply with the standards. Fish farms that existed when the regulations entered into force must prepare a technical escape report prior to 1 January 2021.
The regulation also establishes obligations on manufacturers and suppliers of equipment for land-based fish farming. All new components must be in accordance with the technical standards in the NS 9416:2013 and the regulations. Some of the requirements are that:
- components must be traceable;
- cages, dead fish systems, alarm systems and main drain lock must all be supplied with a user manual;
- components such as strainers, filters, couplings and others that are important for escape prevention must be supplied with product data sheets; and
- tubes and pipes must have a product certificate.
7. OTHER FISH HEALTH AND FISH WELFARE ISSUES
Fish health and fish welfare is a crucial issue when it comes to fish farming, both on land and at sea. The technical requirements that we have just described must be seen in this perspective. However, there are also other rules that aim to safeguard the health and welfare of the fish.
Section 25 of the Aquaculture Regulations sets forth that – as a general rule – the fish density should be appropriate and adapted to water quality, fish behavioral and physiological needs, health status, mode of operation and feeding technology.
Further, the provision states that the fish density per production unit with broodstock and salmon and rainbow trout, shall not exceed 25 kg/m³ except in slaughter nets and closed production units. The latter means that at this point there is no specific upper limit for land-based fish farming as opposed to fish farming in sea in open units.
The rationale behind this is two-fold: first, in closed production units, the breeder has a better opportunity to monitor the fish welfare, and secondly, the Norwegian authorities wanted to remove an obstacle for developing closed production units in sea and on land, and thereby stimulate to innovation in the aquaculture industry. An upper limit of 25 kg/m³ would have counteracted such development and innovation.
8. ENVIRONMENTAL ISSUES
According to Section 10 of the Norwegian Aquaculture Act, aquaculture facilities must be established, operated and ultimately decommissioned in an environmentally responsible manner. This rule applies to all fish farming facilities, irrespective of whether they are located on land or at sea.
Further, the Norwegian Nature Diversity Act lays down general principles for official decision-making based on sustainable use and ecosystem approach; see Chapter 2 of the Act. These principles apply inter alia when the County Authority decides upon an application for an aquaculture license.
Finally, the breeder must apply for pollution permits governing emission of nutrient salt, feed, medicines, etc. Even though the emissions from land-based facilities are at a lower level compared to traditional fish farming in sea, there will still be some emission of waste and therefore a corresponding need for pollution permits.
9. SUMMING UP
The legal framework provides both opportunities and challenges for land-based salmon farming in Norway. Compared to salmon farming at sea, the opportunities are primarily related to the fact that:
- aquaculture licenses are allocated for free and are easier to secure;
- the restrictions on fish density are less stringent; and
- land-based fish farming has a smaller ecological footprint, which makes it easier to obtain pollution permits with acceptable conditions.
A possible challenge for land-based fish farms is that a positive outcome of the application process is dependent on support from local authorities as regulatory authorities, enforcers of environmental law, etc. If they raise significant objections to the project, it will in practice be hard to get the necessary permits.
Another challenge is that the technological solutions must be satisfactory from a fish welfare perspective. Despite modifications in the general rules, fish welfare is still a major issue and a potential obstacle for land-based fish farming projects.
[1] Regulations 21 June 2017 No. 854 (Forskrift om konsekvensutredninger).
[2] Regulations 17 June 2008 No. 823.
[3] cf. Salmon Allocation Regulations Section 28 d. Regulations 22 December 2004 No. 1798 as amended by Regulations 1 June 2016 No. 562.
[4] Regulations 17 June 2008 No. 822.
[5] Regulations 19 June 2017 No. 941.
