THE LEGAL AND REGULATORY 
 ENVIRONMENT FOR ILLINOIS 
 AQUACULTURE 
 
 Document No. 83/05 - 
 
 Illinois Department of 
 
 Energy and Natural Resources 
 
 James R. Thompson, Governor 
 Michael B. Witte, Director 
 
 DEPOSITORY 
 
 JUN 2 8 1983 
 
 UNIVERSITY Oh ILLINOIS 
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 THE 
 
 LEGAL 
 
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 REGULATORY 
 
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 AQUACULTURE 
 
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Digitized by the Internet Archive 
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DOC. NO. 83/05 
 February 1983 
 
 L 
 
 THE LEGAL AND REGULATORY ENVIRONMENT 
 
 FOR v\A 
 
 ILLINOIS AQUACULTURE 
 
 by Margaret R. Grossman 
 Randall E. Westgren 
 Dale G. Wills ,% 
 Sherri L. Knuth u 
 
 James R. Thompson, Governor Michael B. Witte, Director 
 
 State of Illinois Illinois Department of Energy 
 
 and Natural Resources 
 
 1) Prepared as project 20.150 under contract to Illinois Department of Energy 
 and Natural Resources by University of Illinois at Champaign-Urbana, 
 Colleges of Agricultural Law and Agricultural Economics, Urbana, IL 61801, 
 
\3 3,^<* 
 
 Printed by Authority of the State of Illinois 
 
 Quantity Printed: 200 
 
 Date Printed: February 1983 
 
 This report has been reviewed by the Department of Energy and 
 Natural Resources and approved for publication. Views ex- 
 pressed are those of the contractor and do not necessarily 
 reflect the position of DENR. 
 
 One of a series of research publications published since 1975, 
 This series includes the following categories and are color 
 coded as follows: 
 
 Air Quality Green 
 
 Water - Blue 
 
 Environmental Health - White 
 
 Solid and Hazardous Waste - White 
 
 Economic Impact Study - Buff 
 
 Noise Management - Buff 
 
 Energy - Cherry 
 
 Information Services - Canary 
 
 Illinois Department of Energy and Natural Resources 
 
 Policy and Planning Division 
 
 Research Section 
 
 325 W. Adams 
 
 Springfield, Illinois 62706 
 
 (217) 785-2800 
 
 n 
 
TABLE OF CONTENTS 
 Introduction 
 I. Legal Environment of Aquaculture 
 
 A. The Relationship Between the Federal Government and 
 the States in Aquaculture Regulation 
 
 B. Federal Responses to the Growth of the Aquaculture 
 Industry 
 
 C. Statutory and Regulatory Responses of the States to 
 the Growth of the Aquaculture Industry 
 
 1. Defining Aquaculture 
 
 2. Security Interests 
 
 3. Marketing Acts 
 
 4. Cooperatives 
 
 5. Fish Farming Acts 
 
 6. Import Limitations 
 
 D. The Current Legal Environment for Aquaculture in Illinois 
 
 1. Laws Affecting Agriculture 
 
 2. The Fish Code 
 
 E. Proposed Amendments to Selected Illinois Laws 
 Affecting Aquaculture 
 
 F. Summary 
 
 II. Commercial Environment of Aquaculture 
 A. The Farm Credit System 
 1. Background 
 
2. Federal land Bank Loans 
 
 3. Production Credit Association Loans 
 
 4. Banks for Cooperatives Loans 
 
 B. The Farmers Home Administration 
 
 1. Background 
 
 2. FmHA Farm Ownership Loans 
 
 3. FmHA Operating Loans 
 
 4. FmHA Emergency Loans 
 
 C. The Steal] Business Administration 
 
 D. Country Banks 
 
 E. Federal Crop Insurance 
 
 F. Summary 
 
 III. Water Use Regulations 
 
 A. Water Rights of the Private Landowner 
 
 1. Natural Watercourses 
 
 2 . Groundwater 
 
 B. Public Regulation of Rivers, Lakes, and Streams 
 
 1. Use of Public Bodies of Water 
 
 2. Dredge and Fill Permits 
 
 a. The Permit Requirement 
 
 b. U.S. Army Corps of Engineer and U.S. 
 Environmental Protection Agency 
 
 c. Illinois Department of Transportation 
 
 d. Illinois Environmental Protection Agency 
 
 e. Other Agencies 
 
 3. The Time Element 
 
 C. Special Bodies of Water 
 
IV. Environmental and Health Laws and Regulations 
 
 A. Effluent Permits 
 
 1. NPDES Permits 
 
 2. Illinois Construction and Operating Permits 
 
 B. Pesticide Regulations 
 
 1. Overview of Federal and State Regulation 
 
 2. Registration Requirements 
 
 3. Pesticide Regulation "by the IEPA 
 
 C. Drug Regulation 
 
 D. Pish Disposal 
 
 E. Pollution from Neighboring Landowners 
 
 1. Statutory Remedies 
 
 2. Common Law Remedies 
 
 V. Comparisons and Recommendations for Water Use and 
 Environmental Protection 
 
 A. Aquaculture in Other States 
 
 B. Recommendations for Illinois 
 
 1. Potential Improvements in Illinois Water Use Law 
 
 a. Public Regulation of Waters 
 
 b. Dredge and Pill Permitting 
 
 c. Special Bodies of Water 
 
 2. Potential Improvements in Illinois Environ- 
 mental Law 
 
 a. Effluent Permits and NPDES Permitting 
 
 b. Illinois Construction and Operating Permits 
 
 c. Pesticides and Drugs 
 
 d. Pollution from Neighboring Landowners 
 
 3. Improving Regulatory Processes 
 Footnotes 
 
INTRODUCTION 
 
 Aquaculture is an expanding source of food around the world. 
 Both industrial and developing countries use managed fish production to 
 augment wild fisheries production. As many traditional fisheries become 
 depleted from over harvesting and pollution, aquaculture must continue to 
 provide increased output. Because aquaculture is managed production, 
 making intensive use of water, labor, and capital resources, the return is 
 greater than for wild harvesting. Additionally, culturing fish allows for 
 genetic improvement, controlled breeding, disease control, and faster 
 growth. 
 
 Pish culture has been practiced for over 4,000 years in China 
 and has been an established food source in many countries for centuries. 
 The United States, with an historically abundant natural catch, has lagged 
 behind the rest of the world. With rising costs for fishing fleets and 
 declining fish populations, there is a significant economic incentive to 
 expand U.S. aquaculture. 
 
 Aquaculture in Illinois is less developed than in many other 
 states. With ample water and a growing season adequate for many species, 
 Illinois has the capacity for fish culture. Additionally, Illinois has a 
 high population density, high incomes, and a good transportation system. 
 
 Aside from any economic obstacles to the growth of the 
 aquaculture industry in Illinois, there are many institutional constraints 
 to development.'' Many potential aquaculturalists need educational 
 assistance and technical information regarding fish husbandry, diseases, 
 economics, marketing, and other topics. Sources of capital, supplies, 
 
and labor are not well developed for an "infant" industry such as fish 
 farming. Finally, the legal and commercial environments for aquaculture 
 are not well described and may present risks to persons interested in 
 aquaculture. 
 
 In light of the relatively undeveloped aquaculture industry in 
 Illinois and the market potentials for aquaculture products in the Chicago 
 and St. Louis metropolitan areas, substantial opportunities exist for 
 investments in aquaculture in Illinois. Accordingly, this report reviews 
 the existing federal and state laws and regulations that affect 
 aquaculture industry in Illinois. Although it does not claim to be 
 completely comprehensive, the report analyzes the major legal constraints 
 on fish farming. In addition, it proposes changes in the Illinois 
 enactments that unduly restrict the development of the industry. 
 
 Section I of this report analyzes the legal environment of the 
 aquaculture industry in Illinois. The analysis begins by concentrating on 
 the federal responses to the growth of the aquaculture industry. It then 
 examines the statutory and regulatory responses of those states where 
 aquaculture is a developed industry. Those positions are then compared 
 with the corresponding responses in Illinois. Section I concludes by 
 offering proposals for reform of the Illinois statutory scheme for aqua- 
 culture. 
 
 Section II examines the commercial environment of the 
 aquaculture industry in Illinois, and demonstrates that most federal 
 sources of agricultural financing are available to aquacultural borrowers. 
 Specifically, the section discusses the availability of Farm Credit 
 System, Farmers Home Administration, and Small Business Administration 
 
financing. Section II also concludes that traditional country bank 
 financing will be more readily available once the industry proves its 
 economic viability in Illinois. 
 
 Section III examines the water use laws relevant to the aquacul- 
 ture industry in Illinois. That section initially discusses the water 
 rights of private landowners. It then analyzes the scope of the public 
 regulation of water uses, including the protection of public uses by 
 Illinois agencies and the dredge and fill permitting requirements of the 
 state and the U.S. Army Corps of Engineers. Section III concludes by 
 focusing on the water use laws for special bodies of water such as borrow 
 pits, surface mining ponds, and power plant cooling lakes. 
 
 Section IV discusses the environmental laws and regulations that 
 affect the Illinois aquaculture industry. That section begins by examin- 
 ing the effluent permits required by the Illinois and United States 
 Environmental Protection Agencies. It then looks at the regulation of 
 pesticide use and animal drug use in the state. Section IV concludes by 
 analyzing the statutory and common law pollution remedies of neighboring 
 landowners and the dead fish disposal requirements of the state. 
 
 Section V of this paper focuses on the legislative and regula- 
 tory problems in the aquaculture industry in other states and the efforts 
 those states have made to improve the industry's regulatory environment. 
 It then offers recommendations for substantive and procedural reform of 
 the Illinois regulatory environment of aquaculture. 
 
I. LEGAL ENVIRONMENT OP AQUACULTURE 
 
 A. The Relationship Between the Federal Government and the States in 
 
 Aquaculture Regulation . 
 
 In 1941 the United States Supreme Court held that, in the 
 absence of conflicting Congressional legislation under the Commerce 
 Clause, the states are free to regulate fisheries located within state 
 boundaries. 2 Twelve years later Congress passed the Submerged Lands 
 Act, 3 through which the United States relinquished to the states all 
 federal interests in the natural resources beneath the navigable waters 
 within state boundaries. The combined effect of the 1941 Supreme Court 
 Decision and the Submerged Lands Act is to confer upon the states exclu- 
 sive jurisdiction over fishing within state boundaries for those areas 
 where the federal government has not legislated. 4 
 
 In 1980 Congress enacted the National Aquaculture Act. 5 The 
 Act directed the Secretaries of Agriculture, Commerce, and the Interior 
 to conduct studies on and formulate recommendations for improvement of 
 the aquaculture industry in the United States. Because the Act is basi- 
 cally investigative in nature and its studies have yet to be completed, 
 its relationship with state laws and regulations is difficult to predict. 
 
At a minimum, however, "because the Act strives to eliminate or reconcile 
 any legal and economic constraints on the aquaculture industry, any state 
 law or regulation that burdens the aquaculture industry can he expected 
 to he scrutinized carefully if the validity of such a law or regulation 
 is challenged. 
 
 Most states currently regulating the aquaculture industry have 
 a somewhat fragmented regulatory scheme. Because aquaculture requires 
 the importation, propagation, and transportation of fish, state fish and 
 game officials naturally claim that the industry is subject to their reg- 
 ulatory powers. As the aquaculture industry develops within a state, 
 however, state agriculture officials recognize its potential for food 
 production. The agriculture officials therefore assert that aquacultur- 
 ists are subject to the regulatory powers of the state agriculture de- 
 partment. 6 Because the propagation of fish in a controlled environment 
 is potentially both a threat to native ecosystems and an important food 
 source, one writer has suggested that state regulation should involve 
 both agriculture and fish and game officials. 7 California aquaculture 
 regulation follows this approach. 8 
 
 B. Federal Responses to the Growth of the Aquaculture Industry 
 
 The express purpose of the National Aquaculture Act is to pro- 
 mote the development of aquaculture in the United States. 9 Because 
 most of the investigations and studies to be conducted under the Act have 
 
not been completed, its impact on the aquaculture industry in the United 
 States is uncertain. Other federal laws, however, do affect aquacul- 
 ture. Congress has addressed the financial needs of fish farmers by 
 amendments to the Farm Credit Act and the Farmers Home Administration 
 loan programs. These amendments make those loans available to borrowers 
 engaged in aquaculture. A complete discussion of aquacultural financing 
 can be found in Part II of this report dealing with the commercial 
 environment of aquaculture. 
 
 The United States Department of Labor is one of the few federal 
 agencies to address problems created by the agriculture/aquaculture 
 dichotomy. The Fair Labor Standards Act of 1938 exempts certain agricul- 
 tural employees from its minimum wage and overtime requirements.^ 
 Regulations issued pursuant to that Act indicate that employees employed 
 in the propagation of fish may qualify for the agricultural employees' 
 exemption.'''' This interpretation recognizes that fish farmers are 
 faced with economic and labor constraints similar to those of traditional 
 farmers and should therefore be entitled to exemption from the overtime 
 and minimum wage requirements of the Fair Labor Standards Act. 
 
 C. Statutory and Regulatory Responses of the States to the Growth of the 
 
 Aquaculture Industry 
 
 Like Congress, the state legislatures have responded to the 
 growth of the aquaculture industry in a piecemeal fashion. The purpose 
 
of this section is to analyze these responses by focusing on their 
 express purposes and practical effects .' 2 
 
 1. Defining Aquaculture 
 
 Arkansas, California, and Mississippi have enacted "broad domes- 
 tic fish farming statutes that officially recognize the economic importance 
 and potential of the aquaculture industry and provide that any law or 
 regulation dealing with the term "agriculture" shall include 
 "aquaculture. "13 The Arkansas and Mississippi statutes go even further 
 "by providing that the term "cultivated crop" shall include farm-raised fish, 
 and that the term "livestock" shall include domesticated fish that are 
 propagated as a cultivated crop. 14 These statutes serve two "broad 
 purposes. First, they lend an official stamp of approval to the expan- 
 sion of the aquaculture industry. While such official approval may be of 
 little or no legal significance to the industry, it provides moral sup- 
 port both for individuals contemplating entering the industry and for 
 credit sources who have legitimate, longstanding doubts about the viabil- 
 ity of the aquaculture industry. Secondly, and more importantly, such a 
 statute provides a definitional inclusion of aquaculture within the mean- 
 ing of the term agriculture for all purposes of state regulation. This 
 definitional recognition should benefit the industry. Pish farmers could 
 adapt the conduct of their businesses to conform to the regulatory 
 restrictions imposed on other farmers, and could justifiably claim the 
 state benefits and protections extended to other farmers. In addition, 
 
the creditors of fish farmers could extend credit in the same manner that 
 they do for other farmers and then rely on this statutory recognition to 
 claim the protections given agricultural lenders by the existing statutes 
 and regulations. The movement of capital into the aquaculture industry 
 would then depend solely on the financial viability of the operation and 
 not on an after-the-fact interpretation of its legal status. 
 
 2. Security Interests 
 
 Arkansas has taken even more specific legislative action to 
 protect aquacultural creditors. That action allows a security interest 
 to be created in farm-raised fish on the same terms and conditions as 
 other farm products under Article 9 of the Uniform Commercial Code. 1 5 
 Such a provision provides express protection for aquacultural lenders 
 who make seasonal operating loans and intend to create a security inter- 
 est in the farm-raised fish of the borrower. The security interest will 
 permit the creditor to obtain priority over other lenders, and may let 
 the secured lender seize the fish if the loan is in default. Without 
 this express statutory inclusion, lenders attempting to create a security 
 interest in farm-raised fish must rely on judicial interpretations of 
 "farm products," as it is used in Article 9, to include farm-raised fish. 
 3y eliminating the uncertainties of judicial interpretation, the Arkansas 
 amendment to Article 9 should encourage traditional agricultural lenders 
 to make operating loans to fish farmers in a manner similar to operating 
 loans for other farmers. 16 
 
8 
 
 3. Marketing Acts 
 
 Three states have enacted catfish marketing acts. 17 These 
 acts provide that distributors, processors, and retailers of catfish 
 products must meet certain labeling requirements when offering catfish 
 for direct retail sale for human consumption. The statute basically 
 requires that the catfish products be labeled as farm-raised catfish, 
 river or lake catfish, imported catfish, or ocean catfish. The purpose 
 of such an act is to promote sales of locally harvested catfish which 
 cannot compete in price with imported Brazilian catfish. Besides 
 appealing to the loyalty of consumers, these statutes also allow 
 consumers to identify the quality of the domestic and imported catfish 
 and decide whether the price differential is overcome by any difference 
 in quality. As propagation techniques improve the quality of farm-raised 
 catfish, it is hoped that the price differential will become a less 
 important factor in purchasing decisions. 
 
 4 . Cooperatives 
 
 Mississippi and Alabama also have taken the necessary legisla- 
 tive steps to allow fish farmers to form cooperatives that market the 
 members' catfish products and purchase their supplies.^ General 
 agricultural cooperatives have existed for a number of years. An 
 agricultural cooperative may have two purposes. First, it can provide an 
 efficient marketing mechanism by which the member-producers sell their 
 
products. Second, it can purchase supplies for the member-producers at 
 discounts which become available because of the economy of scale that is 
 created by joint member purchasing power. These agricultural 
 cooperatives operate on a nonprofit rationale J 9 in other words, the 
 cooperative operates at cost for its member-patrons. At the time a 
 member sells products to the cooperative, the eventual market selling 
 price cannot be determined. At the initial sale, therefore, the 
 cooperative member receives an advance. At year-end when the proceeds 
 are ascertainable, the cooperative will return any excess over the amount 
 of the original advance to the member in the form of a patronage refund. 
 This patronage refund system gives the cooperative the appearance of a 
 nonprofit firm and justifies its special tax treatment by the Internal 
 Revenue Code. 20. 
 
 Section 521 of the Internal Revenue Code provides an "exemp- 
 tion" from corporate income tax for qualifying farmers' cooperatives. 
 Section 521 ensures that patronage refunds and dividends on capital stock 
 are not included in the taxable income of the exempt cooperative. 21 
 This allows farmers' cooperatives to avoid the normal corporate taxes 
 on some retained earnings and all dividends that would normally be subject 
 to taxation at the firm level. Instead, the patronage refunds and capital 
 stock dividends are treated as income of the individual cooperative members. 
 Any proceeds or profits that are not distributed to the member-patrons are 
 taxed to the cooperative at the general corporate tax rates. 22 
 
 / 
 
10 
 
 Section 521 specifies the requirements that a farmers' coopera- 
 tive must satisfy to qualify for the limited exemption. As an initial 
 requirement an association must be composed of farmers, fruit growers, or 
 persons engaged in similar pursuits. 23 a 1964 Revenue Ruling pro- 
 vides that a fish farmers' cooperative is entitled to a section 521 
 exemption as a farmers', fruit growers' or like association. 24 Such 
 an interpretation enables fish farmers to organize cooperatively to deal 
 with the persistent marketing problems that plague the industry. 
 
 Section 521 also specifies the conditions under which a cooper- 
 ative having capital stock may qualify for the exemption. 25 First, 
 the dividend rate must be fixed at a rate not to exceed the legal rate of 
 interest for the state of incorporation or 8 percent per annum, whichever 
 is greater. Second, substantially all of the stock must be owned by 
 producers who market their products or purchase their supplies and 
 equipment through the cooperative. 26 
 
 A 1977 Revenue Ruling allows a cooperative to qualify for the 
 exemption even though the cooperative, in connection with its marketing 
 functions, manufacturers or otherwise changes the basic form of the 
 member-producers' original product. 27 Thi S interpretation should be 
 valuable for aquaculture cooperatives that perform many of the 
 complicated catfish processing functions for the member fish farmers. 
 Cooperative processing should also make the finished product more uniform 
 and thereby increase the attractiveness of the product in the eyes of 
 consumers. 
 
11 
 
 Cooperative processing and marketing functions provide the 
 aquaculturist with access to markets denied to small producers. 
 Cooperatives can freeze fish for year-round distribution, provide large 
 quantities to supermarket and restaurant chains, and grade and sort fish 
 into standard products to earn highest returns. These functions are 
 necessary to "build markets sufficiently large to support the growth of the 
 industry in Illinois. 
 
 5. Fish Farming Acts 
 
 Several southern states also have imposed various license 
 requirements on domestic fish farmers. The precise nature of the 
 licensing requirements varies from state to state. 
 
 Louisiana has enacted a comprehensive domestic fish farming 
 act. 28 After recognizing the importance of domestic fish farming to 
 the economy of Louisiana, the act provides two important definitions. 
 "Privately owned waters" are "artificial earthen reservoirs constructed 
 so as to prevent the ingress and egress of fish life from public 
 waters. "29 "Domesticated fish" are fish "raised and harvested on a 
 short term basis in privately owned waters. "30 At the outset, 
 therefore, the act clearly signals that domestic fish farming is to 
 receive treatment different from game fishing and commercial fishing. 
 
 A domestic fish farmer in Louisiana is required to buy a domes- 
 tic fish farming certificate for an annual fee of $10.31 Fish 
 
12 
 
 farmers in Louisiana, however, are exempt from the licensing requirements 
 for retail and wholesale fish dealers. 32 The purchase of the single 
 certificate would allow a Louisiana fish farmer to raise, harvest, and 
 sell aquacultural products. Once licensed as a domestic fish farmer, the 
 grower may harvest and sell the domesticated fish at the times desired. 
 The fish farmer is allowed to use sieves and nets in the harvesting, 33 
 and the law puts no limits on the size or numbers of fish harvested. 34 
 The statute prohibits domestic fish farmers from using public bodies of 
 water to raise fish. 35 
 
 Texas also has a rather comprehensive fish farming provi- 
 sion. 36 jjo person may be a fish farmer without first having acquired 
 from the Parks and Wildlife Department an annual $5 fish farmers 
 license. 37 That statute defines a "fish farmer" as "any person 
 engaged in the business of producing, propagating, transporting, possess- 
 ing and selling fish raised in a private pond[.]"38 The statute 
 defines "private pond" as "a pond, reservoir, vat, or other structure 
 capable of holding fish in confinement wholly within or on the enclosed 
 land of an owner or lessor. "39 Under the Texas statutory framework a 
 fish farmer seems to be exempt from the licensing requirement for 
 commercial fishermen, wholesale fish dealers, and retail fish 
 dealers. 40 
 
13 
 
 6. Import Limitations 
 
 Several states, in coordination with the federal Lacey 
 Act, 4-1 have enacted legislation that limits the importation of certain 
 species of fish. These statutes are designed to protect the indigenous 
 fish populations and preserve the existing ecological balance. 
 
 In 1949 Congress enacted the Lacey Act, authorizing the 
 Secretary of Interior to prohibit importation into the United States any 
 species of fish which may "he injurious to human beings, to the interests 
 of agriculture, horticulture, forestry, or to wildlife or the wildlife 
 resources of the United States. "42 The Secretary has adopted 
 regulations that define the federal limits on the importation of fish. 
 The regulations provide that fish of the family Clariidae (walking 
 catfish) can be imported only for zoological, educational, medical, or 
 scientific purposes. 4-3 They also provide that all other species of 
 imported fish (except for the fish family Salmonidae ) may be released into 
 the wild only with the written permission of the State Wildlife 
 Conservation Agency having jurisdiction over the area of release. 44 
 Therefore, the states control the importation of all species of fish other 
 than those of the Clariidae and Salmonidae families. 
 
 In accordance with the Lacey Act, several states have placed 
 fish importation decisions in the hands of state agencies. Alabama, for 
 example, has authorized the Commissioner of Conservation and Natural 
 Resources to restrict the importation of fish in the best interests of the 
 state. 45 Georgia has empowered the Board of Natural Resources to 
 prohibit or limit the importation of any fish that are harmful to the 
 
14 
 
 indigenous fish populations. 46 Louisiana requires a permit from the 
 Wildlife & Fisheries Commission for the importation of carnero catfish or 
 walking catfish ( Clariidae ) .47 These three statutory schemes recog- 
 nize the need for restrictions on the importation of fish which may be 
 hazardous to native ecosystems. 
 
 D. The Current Legal Environment for Aquaculture in Illinois 
 
 1. Laws Affecting Agriculture 
 
 A survey of the current Illinois statutory scheme reveals that 
 the Illinois legislature has expressly addressed the needs of the aquacul- 
 ture industry in only two instances. The Illinois Farm Development 
 Act, 48 which authorizes the development authority to issue notes and 
 bonds in order to make or acquire land for the acquisition and development 
 of agricultural facilities, provides that agricultural commodities include 
 the products of aquaculture. 49 At the time of this writing it was not 
 known whether the authority had issued any notes or bonds for any purpose. 
 The Illinois Agricultural Areas Conservation and Protection Act50 ± s 
 designed to protect and encourage the development of agricultural lands 
 for the production of food and other agricultural products. For the pur- 
 poses of that Act, the phrase "crops, livestock and livestock products" 
 includes the keeping, raising, and feeding of fish. 51 
 
15 
 
 Most Illinois statutes dealing with the agricultural industry do 
 not expressly include aquaculture within their scope. For example, the 
 Illinois minimum wage and overtime law provides a limited exemption for 
 agricultural employers, 52 tut the statute does not define the activi- 
 ties that constitute agriculture. The Illinois unemployment insurance 
 law also provides an exemption for certain types of agricultural 
 labor. 53 The statutory definition of "agricultural labor" does not 
 mention aquaculture. 54 The Illinois Workers' Compensation Act pro- 
 vides a limited exemption for "agricultural enterprises, "55 but the 
 statute does not define that term. The Illinois Pesticide Act provides a 
 definition of "agricultural commodity" for purposes of that law. 56 
 The definition, focusing on "produce of the land," does not refer to 
 either aquaculture or fish farming. The Illinois Inspection and 
 Standardization of Farm Products Act defines the term "agricultural 
 products."57 That definition, for purposes of the Act, does not 
 mention aquaculture or fish farming. Each of these Illinois laws could 
 logically be extended to cover aquaculture activities and products. At 
 present, however, their definitional sections do not indicate an awareness 
 of the potential of aquaculture as a part of Illinois agriculture. 
 
 2. The Fish Code 
 
 The Illinois Fish Code of 197l58 defines and specifies the 
 licensing requirements for commercial fishermen, wholesale and retail fish 
 dealers, and fish breeders. It does not expressly address the legal 
 
16 
 
 status of the fish farmer in Illinois. Exactly where the fish farmer fits 
 into its statutory scheme is not clear. 
 
 The Pish Code provides that the ownership of all aquatic life 
 within the "boundaries of Illinois is in the state, and that title remains 
 in the state for the purpose of regulating the "taking, killing, posses- 
 sion, use, sale, and transportation" of these fish. 59 On its face, 
 therefore, this statute seems to indicate that the propagation and 
 harvesting of all fish, even those raised on fish farms, is subject to the 
 requirements of the Pish Code. 60 it may, however, indicate the fail- 
 ure of the drafters to consider aquaculture activities. The Act applies 
 to all aquatic life in "any of the lakes, rivers, creeks, sloughs, "bayous, 
 or other waters or watercourses or lands wholly within the "boundaries of 
 the State of Illinois . . . ."61 Thus it would seem to apply to 
 almost any. body of water in which aquaculture would occur. 
 
 The Pish Code provides that persons who use sieves, nets, and 
 other commercial fishing devices to take any fish protected by the Code 
 are considered commercial fishermen, who must have a commercial fishing 
 license^ that costs $25 per year. 63 Because fish farmers nor- 
 mally use sieves and nets to harvest farm-raised fish and because farm- 
 raised fish seem to fit within the purview of the Pish Code, a fish farmer 
 fits within the statutory definition of a commercial fisherman. As the 
 analysis of the fish farming statutes of other states indicates, 64 
 however, the Illinois legislature probably did not intend to classify fish 
 farmers as commercial fishermen. Rather, the legislature most likely 
 
17 
 
 intended the commercial fisherman definition to extend only to those who 
 take fish from the public waters of the state for commercial purposes. 
 
 Indeed, another section of the Fish Code supports the conclusion 
 that the Illinois legislature did not intend fish farmers to be considered 
 commercial fishermen. The breeder's permit section provides that any 
 person who engages in the breeding, hatching, or propagation of aquatic 
 life must first obtain a breeder's permit from the Department of 
 Conservation. 65 Aquatic life raised pursuant to a breeder's permit 
 may be transported and sold for food, but permit holders who sell aquatic 
 life must comply with the wholesale and/or retail fish dealer's license 
 requirements discussed below. The annual fee for a breeder's permit is 
 $50.66 
 
 Pish farmers seem to fit within this fish breeder classifica- 
 tion. Therefore, compliance with the statutory requirements for fish 
 breeders should enable a fish farmer to carry on all regular operations 
 without being subject to the separate commercial fisherman license 
 requirements . 
 
 The Fish Code also imposes license requirements on wholesale and 
 retail fish dealers. 67 a wholesale fish dealer is any person who 
 sells to other wholesalers, retailers, or commercial institutions fish 
 indigenous to Illinois and protected by the Code. 68 a wholesale fish 
 dealer's license costs $50 per year. 69 pish farmers who sell harvest- 
 ed fish to wholesalers and retailers would fit within the statutory defi- 
 nition of a wholesale fish dealer. A retail fish dealer is any person who 
 conducts a retail fish market and sells for consumption any fish protected 
 
18 
 
 by the code. 70 a retail fish dealer's license costs $10 per year. 71 
 The many fish fanners who conduct fish markets would seem to be subject to 
 the retail fish dealer's license requirements. 
 
 The Illinois Department of Conservation also regulates the release 
 of fish into the waters of Illinois. The Fish Code provides that the owner 
 of a body of water must secure permission from the Department before 
 releasing any fish that are not indigenous to the State of Illinois into 
 that body of water. 72 Apparently, all species of fish indigenous to 
 Illinois may be imported into the state for release into private waters 
 without restriction. All species of nonindigenous fish, however, are 
 subject to approval by the Department of Conservation prior to release. 
 This Illinois statutory scheme, while not expressly referring to 
 importation, seems to dovetail with the Lacey Act73 "by giving the 
 Department of Conservation power to approve the release of nonindigenous 
 fish. 
 
 E. Proposed Amendments to Selected Illinois Laws Affecting 
 
 Aquaculture 
 
 The previous sections have examined the existing legal environment of 
 aquaculture in Illinois and several other states. This section analyzes the 
 deficiencies in the current Illinois statutory framework and suggests 
 changes that should help promote the aquacultural industry in Illinois. 
 
19 
 
 As an initial undertaking, the Illinois legislature should adopt 
 a "broad domestic fish farming statute that officially recognizes the 
 economic potential for the aquaculture industry in Illinois. While this 
 official stamp of approval would have little independent legal 
 significance, it should encourage reluctant market entrants and industry 
 creditors and help to mitigate their longstanding doubts about the 
 viability of the aquaculture industry in Illinois. 
 
 Ideally, the broad recognitional statute should provide that the 
 use of the term "agriculture" in any statute or regulation of the state 
 includes "aquaculture." The statute could follow the Arkansas and 
 Mississippi models, 74 by providing that the term "cultivated crop" 
 shall include farm-raised fish and that the term "livestock" shall include ' 
 domesticated fish that are propagated as a cultivated crop. This type of 
 definitional amendment would allow fish farmers to conform the conduct of 
 their businesses to the regulatory constraints imposed on traditional 
 farmers and to claim those state protections afforded to other farmers. 
 The amendment would also assure creditors that they could extend credit to 
 fish farmers the way they do for traditional farmers and thereby claim the 
 existing protections given agricultural lenders. 
 
 The domestic fish farming statute should also specify how and by 
 whom the aquaculture industry is to be regulated. As mentioned earlier, 
 officials from the Department of Agriculture and the Department of 
 Conservation both have legitimate interests in maintaining some control 
 over the industry. 75 The regulatory breakdown should give the 
 Department of Conservation the power to regulate any fish farming activity 
 that poses a threat to native fish populations and the ecosystem in 
 
20 
 
 general. The Department of Agriculture should be given the power to 
 regulate the aspects of the industry that are part of the food production 
 process. While regulatory overlaps between the two departments will be 
 inevitable, proper coordination of regulatory activities can provide the 
 fish farmer with fair and adequate notice of responsibilities and rights at 
 minimal expense to the state. 
 
 In an effort to protect aquacultural lenders the Illinois legis- 
 lature could also amend Article 9 of the Uniform Commercial Code. That 
 amendment should provide that the term "farm products," as used in section 
 9-109(3), includes fish grown for sale on any fish farm. Following the 
 Arkansas approach, 76 such an amendment would allow a security interest 
 to be created in farm-raised fish. This provision, therefore, should 
 encourage agricultural lenders to make seasonal operating loans to fish 
 farmers, as well as to other Illinois farmers. 
 
 Illinois could also enact a Catfish Marketing Act similar to 
 those enacted in Alabama, Arkansas, and Mississippi. 77 <rh e labeling 
 requirements of such an Act are designed to promote the sale of locally 
 raised catfish. Because Illinois fish farmers market most of their farm- 
 raised fish in the Chicago and St. Louis metropolitan areas, this labeling 
 requirement could promote the sale of Illinois-raised catfish at the 
 expense of both catfish imported from foreign countries and catfish raised 
 in the Southern states. 
 
 Because agricultural cooperatives provide important marketing 
 and purchasing functions for farmers, 78 the Illinois legislature 
 should consider legislative action to enable fish farmers to form aqua- 
 cultural cooperatives. The Illinois Agricultural Co-Operative Act79 
 
21 
 
 has no express provision to suggest that fish farmers will be considered 
 producers of agricultural products who can organize cooperatively under 
 the provisions of that Act. This oversight, however, can "be easily 
 rectified. 
 
 One solution involves enacting a separate cooperative law for 
 aquatic marketing cooperatives. Mississippi has followed this 
 approach. 80 jh e Mississippi statute is expressly designed to promote 
 marketing and distribution of aquatic products in Mississippi. Alabama 
 has solved this definitional problem in a more direct manner. 81 It 
 defined "agricultural products," as used in the general agricultural 
 cooperative statute, to include aquatic and seafood products. Because the 
 Illinois agricultural cooperative statute refers to the production of 
 "agricultural products," a simple definitional amendment would allow fish 
 farmers to organize a cooperative under the provisions of the law. 
 
 The Illinois legislature should make several amendments to the 
 Pish Code to clarify the licensing requirements of a fish farmer. Under a 
 literal reading of the current Pish Code a domestic fish farmer could be 
 subject to the licensing requirement for wholesale fish dealers, retail 
 fish dealers, fish breeders, and perhaps commercial fishermen. 82 j n 
 addition to placing a serious financial burden on the smaller fish farming 
 operation these license requirements reflect the fact that the Illinois 
 legislature has not addressed the special needs of the commercial fish 
 farmer. legislation in Texas and Louisiana, on the other hand, is 
 representative of the efforts other states have made to find a statutory 
 home for the fish farmer .83 The Illinois legislature would be 
 
22 
 
 well-advised to consider adoption of similar statutes if serious about the 
 future of aquaculture in Illinois. More specifically, Illinois should 
 enact a licensing format that allows a fish farmer to conduct operations 
 by the purchase of a single domestic fish farmer's license. Because a 
 fish farmer necessarily sells fish to wholesalers, retailers or the 
 public, the purchase of a fish farmer's license should exempt the fish 
 farmer from the separate licensing requirements for wholesale or retail 
 fish dealers. 84 
 
 F. Summary 
 
 This section has examined the legislative and regulatory 
 responses of the federal government and other states involved in aquacul- 
 ture and has demonstrated the continuing need for legislative and regula- 
 tory response in Illinois. Until the Illinois legislature addresses this 
 need, farmers and producers will be hesitant to enter the aquaculture 
 business and potential sources of credit will be reluctant to extend 
 credit to those farmers and producers. The legislative responses 
 suggested here do not involve any state funding of the aquaculture 
 industry nor do they impose any significant administrative burdens on the 
 state. Once the amendments are enacted, the success or failure of the 
 aquaculture business in Illinois will depend on traditional market forces. 
 The amendments would merely eliminate needless legislative burdens imposed 
 on an industry whose development in Illinois is presently in the embryonic 
 stages. 
 
23 
 
 II. COMMERCIAL ENVIRONMENT OF AQUACULTURE 
 
 Any successful industry has access to reliable sources of financ- 
 ing. The agricultural industry relies on the federal farm credit system, 
 the Farmers Home Administration, and country banks for most of its capital 
 needs. Other federal programs and private financing sources are available 
 in appropriate circumstances. This section analyzes the availability of 
 these traditional sources of agricultural financing to the aquaculture 
 industry. 
 
 A. The Farm Credit System 
 
 1. Background 
 
 A major source of financing for the agriculture industry is the 
 farm credit system. As part of the Farm Credit Act of 1971,^5 which 
 rewrote the farm credit laws and reworked the statutory bases for the farm 
 credit system, Congress authorized Federal Land Banks, Production Credit 
 Associations, and the Banks for Cooperatives to provide loans to 
 agricultural enterprises for a variety of purposes. Both the Farm Credit 
 Act and the regulations of the Farm Credit Administration provide that 
 aquacultural enterprises are eligible for loans available under the Act. 
 An understanding of how the farm credit system can provide financing for 
 the aquaculture industry requires an explanation of how the system operates 
 for traditional agricultural operations. 
 
24 
 
 Before credit is extended under the Act, the Farm Credit Adminis- 
 tration requires the lending "body to examine five credit factors. 86 
 Because the aquaculture industry is in its infancy in Illinois, two of the 
 credit factors may "be difficult to satisfy. First, most aquaculture 
 operations will be relatively new, and the lender will have difficulty 
 evaluating the applicant's financial position and progress. Second, 
 "because aquaculture facilities are generally hard to appraise and have 
 little value in alternative uses, it will be difficult for the lender to 
 determine their value as collateral. Once the industry gains acceptance 
 in Illinois, however, fish farmers will be able to satisfy these two 
 credit factors as readily as traditional farmers. 
 
 2. Federal Land Bank Loans 
 
 Federal land Bank (FEB) loans are available to "farmers, 
 ranchers, or producers or harvesters of aquatic products. "87 Thus, 
 the FLB is authorized to make long-term real estate mortgage loans avail- 
 able to aquacultural producers. Farm Credit Administration regulations 
 specify how aquacultural enterprises can qualify for FLB loans, which are 
 available both to individuals and to legal entities, including corpora- 
 tions and partnerships. 83 An individual satisfies the eligibility 
 requirements by establishing qualification as a bona fide fish farmer. A 
 partnership or corporation, however, must be at least 50 percent owned by 
 individuals conducting the aquaculture operations, have at least 50 
 percent of its assets related to the production of aquacultural products, 
 
25 
 
 or derive at least 50 percent of its income from the production of 
 aquacultural products. 89 Furthermore, a partnership or corporation 
 having a primary purpose of conducting its operations at a loss to absorb 
 taxable income from nonagricultural sources is not eligible. 90 These 
 legal entity eligibility limitations should not adversely affect the 
 industry as a whole: organizations that cannot acquire FEB funding should 
 be able to procure the necessary financing from other sources. 
 
 Loans from FLBs can be for no less than five years nor more than 
 forty years. 91 Primary security for an FLB loan is a first mortgage 
 on the real estate comprising the aquacultural property, which must be 
 valued by approved appraisal standards. 92 The potential difficulties 
 in appraising real estate used for aquacultural production should not pose 
 a serious obstacle once the industry becomes developed. FLB loans cannot 
 exceed 85 percent of the appraised value of the real estate security, 
 unless the loan is guaranteed by a governmental agency and approved by the 
 Farm Credit Administration. In that case the loan can be made for 97 
 percent of the appraised value. 93 in addition, all FLB borrowers are 
 fully liable for their FLB loans. 94 
 
 FLBs also make loans for basic processing and marketing facili- 
 ties directly related to the borrower's aquacultural operations. These 
 facilities can also be used by other eligible borrowers provided that the 
 applicant's operations provide at least 20 percent of the total processing 
 and marketing. 95 The purpose of this type of loan is to assist 
 smaller aquatic units in a reasonable extension of the basic aquatic 
 operation. 
 
26 
 
 3. Production Credit Association Loans 
 
 The Production Credit Associations (PCAs) are authorized to make 
 short and intermediate term loans to fish farmers for aquacultural pur- 
 poses. 96 Typically, short-term loans are used for operating capital 
 and intermediate-term loans are used for equipment purchases. Individual 
 and corporate/ partnership eligibility requirements are the same for PCA 
 loans as for FIB loans. PCA operating loan maturities coincide with the 
 purpose of the loan. Intermediate-term loans cannot exceed seven 
 years. 97 Normally, primary security for PCA loans consists of a first 
 lien in crops (for operating loans) or personal property (for intermediate 
 farm loans). 98 Recovery value is the "basis for measuring the worth of 
 PCA collateral. 99 As with all farm credit loans, PCA borrowers are 
 fully liable for their PCA loans. 
 
 The PCA loan possibilities for fish farmers are numerous. 
 Furthermore, once it is clearly established by state law that a security 
 interest can be created in farm-raised fish, 1 CO PCA operating loans 
 should be readily available to fish farmers. 
 
 4. Banks for Cooperatives Loans 
 
 Banks for Cooperatives (BCs) are empowered to make seasonal 
 loans to eligible cooperatives to finance current assets and current 
 operating needs. 101 Aquacultural cooperatives may qualify for BC 
 
27 
 
 financing. 102 to be eligible for BC financing, an aquacultural 
 cooperative must have at least 80 percent of its voting control held by 
 aquatic harvesters or producers who are eligible for PLB and PCA 
 loans. 103 in addition, BC eligibility is affected by the amount of 
 business done with nonmembers and the amount of dividends available to the 
 cooperative owners. 1 04 The requirements state that the majority of 
 business must be transacted with member-owners and that "substantially 
 all" of the capital stock be held by member-owners. External investors 
 (nonproducers) are severely limited by BCs, as they are by Internal 
 Revenue Code section 521. 
 
 The potential availability of BC financing for fish farming 
 cooperatives should encourage formation of those organizations. If 
 accompanied by a specific Illinois statutory authorization for 
 aquacultural cooperatives, this availability also should serve to increase 
 the confidence of private lenders in aquacultural cooperatives. 
 
 B. The Farmers Home Administration 
 
 1. Background 
 
 In an effort to respond to the credit needs of less established 
 farmers who do not have access to credit from traditional sources, the 
 Farmers Home Administration (FmHA) makes and insures farm ownership loans, 
 farm operating loans, and farm emergency loans. For FmHA purposes the 
 term "farmers" includes fish farmers. 1 05 To be eligible for FmHA 
 
28 
 
 financing a fish farmer must operate not larger than a family farm and be 
 unable to obtain credit elsewhere at reasonable rates and terms. 106 
 
 2. FmHA Farm Ownership Loans 
 
 FmHA farm ownership loans are made primarily to finance pur- 
 chases of and improvements to farms, and to refinance existing 
 debt. 1 07 FmHA farm ownership loans will not be approved if the bor- 
 rower has outstanding TmHA loans and the new loan would cause the bor- 
 rower's total unpaid principal indebtedness to exceed the lesser of 
 $200,000 or the market value of the farm or other security. 1 08 
 These loans are secured by real estate or a combination of real estate and 
 other assets. 1 09 Repayment periods cannot exceed 40 years. HO 
 FmHA farm ownership loans usually impose an interest rate lower than the 
 more traditional sources of financing. The interest rate for FmHA farm 
 ownership loans cannot exceed the cost of money to the government, plus 
 one percent. 111 The rate for loans guaranteed by the FmHA is the 
 rate negotiated by the borrower and lender, so long as that rate does not 
 exceed rates established by the Secretary of Agriculture . 1 1 2 
 
 FmHA farm ownership loan could provide a vital source of capital 
 for the aquaculture industry in Illinois. Given the likelihood that 
 country banks will at first be reluctant to make aquaculture loans, FmHA 
 aquacultural farm ownership applicants should be able to satisfy the 
 threshold FmHA eligibility requirement that adequate credit be unavailale 
 elsewhere. 
 
29 
 
 3« FmHA Operating Loans 
 
 FmHA operating loans are made for a variety of pur- 
 poses. H3 Among these are purchases of machinery and equipment, 
 purchases of fish, purchases of feed, payment of annual operating expenses, 
 payment of family living expenses, and purchases of memberships in 
 cooperative associations. The operating loans cannot be used, however, to 
 pay land lease costs made under any program other than cash rent J H 
 FmHA operating loans can be made for for periods up to seven years J 15 
 Normally, loans used to pay annual operating expenses will be scheduled for 
 payment on the first January 1 after the income from the year's operation is 
 received J 16 Interest rates for operating loans made by the PmHA will 
 be the cost of money to the government plus one percent. 117 Rates for 
 PmHA guaranteed operating loans will be the rate negotiated by the borrower 
 and the lender, not to exceed rates set by the Secretary. 1 18 
 Operating loans are always made on the full liability of the borrower and 
 generally are secured by a first lien on all property acquired, produced, or 
 refinanced with the loan funds.H9 Until the aquaculture industry 
 establishes itself in Illinois, FmHA financing may provide an important 
 source of operating funds for the small fish farm operator. 
 
30 
 
 4. FmHA Emergency Loans 
 
 The FmHA monitors an emergency loan program intended to provide 
 financial aid to farmers who have incurred substantial losses as a result 
 of a natural disaster. The statute makes these loans specifically avail- 
 able to those engaged in aquaculture who have sustained losses because of 
 a natural disaster. 120 Emergency loans may be made for any of the 
 purposes authorized for FmHA farm ownership and operating loans. 1 21 
 An applicant seeking financial assistance based on production losses, 
 however, must prove that a basic part of the aquacultural operation has 
 sustained at least a 30 percent loss of normal per acre or per fish 
 production as a result of the disaster J 22 No loan made or insured 
 after September 30, 1982, may exceed the lesser of $500,000 or the actual 
 cost of the disaster J 23 Each disaster loan is to be made on the 
 full personal liability of the borrower and the best security 
 available . ' 24 FmHA emergency loan interest rates generally are 
 below the market rate. For persons unable to obtain credit elsewhere, 
 interest rates on loans for physical and production losses cannot exceed 8 
 percent per annum. ' 25 For persons able to obtain credit elsewhere, 
 the interest rates cannot exceed the rates prevailing in the private 
 market for similar loans J 26 Repayment terms for FmHA emergency 
 loans are established by the Secretary of Agriculture, but cannot exceed 
 the time for loans for like purposes under the FmHA farm ownership and 
 operating loan programs . 1 27 
 
 Aquacultural operations are particularly susceptible to fish 
 loss due to natural disasters . 1 28 FMHA emergency loans should 
 provide some relief in the event of such a disaster. 
 
31 
 
 C. The Snail Business Administration 
 
 The Small Business Administration (SBA) is also authorized to 
 make loans available to enterprises engaged in aquaculture . 1 29 More 
 specifically, the SBA has been authorized to provide physical disaster 
 assistance loans to cover a variety of losses, including crop 
 loss J 30 Until October 1, 1983, however, aquacultural enterprises 
 will not be eligible for disaster assistance loans if they would be eligi- 
 ble for emergency loan assistance at similar interest rates from the 
 FmHA.131 This restriction is part of a Congressional effort to max- 
 imize the number of agricultural producers whose disaster-induced finan- 
 cial needs can be served by FmHA emergency loans rather than SBA disaster 
 loans. To date, no data indicate that aquacultural producers have relied 
 to any measurable degree on SBA financing to supply their capital needs. 
 
 D. Country Banks 
 
 Country banks provide a private sector financing source for fish 
 farmers. The credit activities of these banks cover everything from 
 short-term operating loans to intermediate-term equipment loans to long- 
 term real estate mortgages. 1 32 The experience of ten southern 
 states indicates that there is no reason to believe that bankers located 
 in areas of extensive aquaculture activity will not be responsive to the 
 needs of aquaculture. The southern experience further indicates that fish 
 
32 
 
 farmers have no special difficulties in obtaining country "bank financing 
 when the financing is needed and justified by traditional credit 
 analysis J 33 Given the state of the aquaculture industry in 
 Illinois, however, reliance on country banks as an important capital 
 source would be misplaced, at least until the industry gains commercial 
 acceptance and proves its economic viability. 
 
 E. Federal Crop Insurance 
 
 The Federal Crop Insurance Act"! 34 authorizes the Federal 
 Crop Insurance Corporation (FCIC) to insure producers of "agricultural 
 commodities" against loss of the insured commodity due to unavoidable 
 causes, such as drought, flood, insect infestation, and plant 
 disease J 35 The Act defines "agricultural commodity" to include any 
 species of finfish propagated in a controlled or selected 
 environment. 136 PCIC insurance is not available, however, unless the 
 FCIC Board first determines that the income from the agricultural commodity 
 in question constitutes an important part of the total agricultural income 
 of the county where the applicant's operations are located J 37 As 
 yet, the FCIC Board has not designated any counties in the United States as 
 being eligible for aquacultural crop insurance. Because FCIC insurance is 
 not available to southern fish farmers, there is little reason to believe 
 that it will be available to Illinois fish farmers in the near future. 
 
33 
 
 F Summary 
 
 Section II concentrated on the commercial environment of the 
 aquacultnire industry. This section has demonstrated that most federal 
 sources of agricultural financing are also available to qualifying 
 aquacultural borrowers. Furthermore, if and when the Illinois fish farming 
 industry gains public acceptance and proves its economic viability, there is 
 no reason to believe that country banks will not become an important source 
 of Illinois aquaculture financing. 
 
34 
 
 III. WATER USE REGULATIONS 
 
 Aquaculture is subject to environmental and resource use laws. 
 Water use regulations, in particular, are important factors in fish 
 culture. The aquaculturist must "be cognizant of rights to water taken 
 from public sources, laws regarding impoundment, and maintenance of 
 effluent quality (particularly if wastewater, runoff, or drainage returns 
 to public water sources). The many types of production facilities make 
 these issues difficult to analyze. Aquaculture facilities may be open 
 impoundments, raceways with freely flowing water, closed indoor systems 
 with recirculated water, or cages anchored in still or moving bodies of 
 water. 
 
 Laws and regulations to which an aquaculturist is subject in the 
 use of water will vary according to the type of aquaculture facility and 
 the source of water chosen. Nationwide, the major source of water supply 
 for catfish farming is wells, which supplied 78 percent of the total as of 
 July, 1981. Rain or watershed sources accounted for 11 percent, with 
 springs, streams, rivers, lakes, ponds, and public water supplies making 
 up the remainder. Springs and streams form a significant part of the 
 water supply in both Georgia and Tennessee. 1 38 Springs and wells, 
 especially deep wells, are frequently preferred because they are more 
 often free of harmful elements, such as pollution and pesticide 
 residues. 139 
 
35 
 
 A. Water Rights of the Private Landowner 
 
 An aquaculturist who propagates fish on private land will be 
 subject to certain common law restrictions on use of water. These 
 principles have developed gradually over the last century. They determine 
 who may use the water, how much may "be used, and for what purposes it may be 
 used. Separate principles exist for natural watercourses and for 
 percolating groundwater. Thus the source of the water used for the fish 
 farming operation will affect the amount of water that may be taken and the 
 use to which that water may be put. 
 
 1. Natural Watercourses 
 
 The use of water in natural watercourses is governed in Illinois 
 by the doctrine of riparian rights. 1 40 To constitute a natural 
 watercourse, there must be a stream flowing in a particular direction, in 
 a definite channel with a bed and banks. The stream usually discharges 
 itself into another stream or body of water, but the flow of water need 
 not be continuous. Although the movement of water in a lake is different 
 from the flow of a stream, riparian doctrine determines the rights of 
 landowners of both lakes and streams. Riparian rights attach to all 
 flowing water, navigable or nonnavigable . 1 41 
 
36 
 
 According to the doctrine of riparian rights, the right to take 
 water from the watercourse attaches to riparian land. The land immediate- 
 ly abutting or bordering on a natural watercourse is clearly riparian, but 
 Illinois courts have not determined how far from the watercourse the ripar- 
 ian land extends. Under the prevailing American law, it seems likely that 
 riparian land is restricted to the part of the land adjoining the 
 watercourse that is within the watershed of the river or stream. 1 42 
 Thus, an aquaculture operation located on riparian land would have the 
 right to use water from the watercourse. This right, however, would be 
 restricted by other aspects of the riparian doctrine. 
 
 The riparian right is a property right, but is an incident of 
 ownership, rather than part of the freehold. The right is a usufruct — the 
 right to enjoy the water and use it without altering its substance. Each 
 riparian owner has the same right to enjoy water from the watercourse, and 
 no owner may exercise the right in a way that prevents the exercise of the 
 same right by other riparian owners J 4-3 The Illinois Supreme Court 
 has announced that the extent of each riparian owner's property rights is 
 to be determined by the principle of reasonable use. 1 44 
 
 Tllinois riparian doctrine divides water uses into two types, 
 natural and artificial. 1 45 Natural uses are necessary for exist- 
 ence; they include water for drinking purposes, household needs, and for a 
 reasonable number of cattle or stock. To satisfy these natural wants, the 
 riparian owner may use whatever water is needed, even the whole supply, 
 without liability to lower riparian owners. Artificial uses are those 
 that increase the riparian owner's prosperity and comfort. These include 
 
T! 
 
 irrigation and industrial or manufacturing uses. Diversion of water from 
 the watercourse for use in an aquaculture operation would very likely be 
 considered an artificial use. All natural uses must be satisfied before 
 artificial uses may be made; water not needed to satisfy natural wants may 
 be used for artificial purposes. Under the doctrine of reasonable use, 
 each landowner is entitled to a proportionate share of water for 
 artificial uses. When several riparian owners are competing for the same 
 water, the facts and circumstances of the situation will determine whether 
 each owner's use is reasonable. The fish farmer's right to a source of 
 water will therefore depend in part on the needs and uses of other 
 riparian owners. Because "these needs may change from time to time, and 
 because the available water supply will be affected by climatic 
 conditions, the riparian fish farmer may not always be assured of an 
 adequate source of water. 
 
 If a fish farmer who is not a riparian owner desires to take 
 water from a natural watercourse for the fish farming operation, several 
 issues arise. 146 jj problem should result if a riparian owner con- 
 veys or leases the riparian land to the fish farmer; the farmer would 
 stand in the place of the owner insofar as the use of water is concerned. 
 Problems may arise, however, if the owner attempts to sever the riparian 
 right from the riparian land, grant the riparian right to the f^sh farmer, 
 and retain the ownership of the land. Although most decisions restrict 
 the use of water to riparian land, the courts have upheld contracts and 
 grants for the use of water on nonriparian lands in some circum- 
 stances. 147 Considerable uncertainty exists in this area. If such 
 
3R 
 
 a grant is upheld in a particular situation, it may "be upheld against the 
 grantor/owner, "but the grant may not hind other riparian owners who have 
 not consented to the arrangement. 1 4*3 Fish farmers should probably 
 proceed with caution if their only source of water is based on a riparian 
 right secured from a riparian owner for use on nonriparian land. 
 
 The availability of a natural watercourse raises issues other 
 than those concerned with the taking and use of water. In general, a 
 riparian owner has the right to fish in the stream or other watercourse 
 abutting the riparian land. 149 This right, however, is subject to 
 regulation by the State of Illinois for the conservation of fish. 150 
 In addition, where navigable waters (that is waters that are navigable in 
 fact) 1 51 ape involved, the riparian owner's rights are subject to a 
 public easement for navigation. 152 Interference with the full 
 enjoyment of the public easement in navigable streams constitutes a public 
 nuisance. 153 This is particularly important to the fish farmer who 
 plans to use anchored fish cages floated in a river or a lake. An 
 Illinois decision has held that the public right of navigation does not 
 include the right to hunt and fish in the navigable waters. 154 The 
 right of the public to fish is restricted in another way in Illinois law: 
 the Pish Code provides that any person takng fish from waters flowing over 
 or standing on the land of another must first obtain the consent of the 
 owner or occupant of the premises. 155 
 
 An aquaculturist may wish to construct ponds, raceways, conduits 
 and other devices to transport or contain water. Such artificial 
 
39 
 
 watercourses may be constructed "by a property owner on his or her 
 property, provided that they do not impose a burden on the property of 
 another without a contractual or prescriptive right to do so. 156 
 A person constructing an artificial watercourse is liable for damages 
 resulting from breakage, leakage, or overflow due to negligence in 
 building and maintaining the watercourse, 157 and may be liable for 
 injuries for changing the course of a stream where it overflows the land 
 of another. 158 a landowner may change the channel of a watercourse, 
 within the boundaries of his or her land, if the stream is restored its 
 natural course before it leaves the owner's property and if it does not 
 damage other land. 159 
 
 In constructing aquaculture facilities, the fish farmer must 
 remain aware of the rules of natural drainage that apply in Illinois. For 
 example, water cannot be cast on the lands of an adjoining property owner, 
 if that water would not flow onto the adjoining premises in the course of 
 nature. 160 some interference with natural drainage — an increase in 
 the speed of the flow, for example — may be allowed, if the interference is 
 limited to that which is incidental to reasonable development of the 
 higher land for agricultural purposes. In determining the applicability 
 of this exception, the question is whether the increased flow is within 
 the range consistent with reasonableness of use. 161 
 
40 
 
 2 . Groundwater 
 
 A fish farmer may contemplate using water from underground 
 sources. Groundwater is generally divided into two categories, 
 underground streams, which flow within well-defined channels, and 
 percolating groundwater. Underground streams probably follow the scheme 
 of riparian rights that applies to natural watercourses. Unless the 
 existence of an underground stream can be proved, however, the groundwater 
 is presumed to be percolating groundwater J 62 
 
 Illinois courts have had few occasions to determine the law that 
 applies to percolating groundwater. It is generally believed that Illi- 
 nois follows the rule of absolute ownership; that is, a landowner may 
 take as much water from beneath the land as desired, without regard to the 
 needs of neighbors. 1 63 it is also believed that in the future, Ill- 
 inois courts may modify this rule, and provide that each landowner's use 
 of groundwater should be limited to the amount needed for reasonable use 
 of the land. 1 64 a landowner may not deplete the supply of ground- 
 water in a malicious attempt to injure a neighbor, nor may the landowner 
 pollute the water supply. 1 65 
 
 B. Public Regulation of Rivers, Lakes, and Streams 
 
 State and federal regulatory agencies are involved in safeguard- 
 ing streams, rivers, and lakes. The following materials provide an over- 
 view of the powers and responsibilities of the various agencies charged with 
 regulating these bodies of water. 
 
41 
 
 1. Use of Public Bodies of Water 
 
 Catfish and trout may be raised in cages in static bodies of 
 water, such as lakes, or in flowing bodies, such as rivers or 
 streams. ^ 66 Th e minois Departments of Transportation and Conser- 
 vation have regulatory authority over these bodies of water. 
 
 The Department of Transportation has jurisdiction and supervis- 
 ion over all rivers and lakes "wherein the State of Illinois or the people 
 of the State have any rights or interests. "167 it is the duty of 
 the Department to exercise care to see that none of the bodies are 
 encroached on, wrongfully seized, "or used by any private interest in any 
 way.""' 68 The Department has the power to make and enforce orders to 
 secure against private use every body of water in which the state has any 
 right or interest J 69 
 
 The Department of Conservation has supervisory power over all 
 state parks, 170 nature preserves , ^ ^ recreational and conser- 
 vation areas, '72 and the waters therein. Both the Department of 
 Conservation and the Department of Transportation express reluctance to 
 permit use of waters under their jurisdiction for a private enterprise 
 such as cage culture. 173 Restrictive uses of public waters are 
 viewed more favorably if they enlarge the public interest; uses that 
 result only in private profit are generally disfavored. 1 74 Because 
 cage culture requires continuous use of the water, interferes with the 
 surface of a body of water, and is carried on during the warm weather 
 
42 
 
 season, it has great potential for interfering with public uses of a body 
 of water. Cage culture in public waters under Department of 
 Transportation jurisdiction would require a license, but no applicable 
 guidelines or regulations exist. 1 75 Determinations would be made on 
 a case-by-case basis under the Department's general mandate to protect the 
 public interest. The Department of Conservation also has guidelines for 
 private use of public waters. 
 
 Statutory authority exists for the Department of Transportation 
 to cooperate with the Department of Conservation "to devise ways and plans 
 and means for the purpose of making the public bodies of water of the 
 State more effective for the production of a cheap food supply in the way 
 of various fish which may be cultivated or propagated in these bodies of 
 water."'' 76 as f Spring 1982, no programs had been developed under 
 this authority. This authority when exercised could provide future 
 impetus to Illinois aquaculture . 
 
 2. Dredge and Pill Permits 
 
 a. The Permit Requirement 
 
 Depending on the applicability of water use laws, an aquacultur- 
 ist may obtain water from a river, lake, or stream for use in a pond or 
 raceway on private property. A raceway would require construction of an 
 intake structure in the stream or lake, and, depending on the type of 
 system used, may also require construction of some type of drain into a 
 receiving stream or impoundment J 77 All catfish ponds must have 
 
43 
 
 adequate facilities for draining and regulating water, and spillways may 
 be needed in case of heavy rainfall in the watershed area J 78 jn 
 streams, lakes, wetlands, flood plains, or floodways that are subject to 
 state or federal regulatory jurisdiction, the construction, dredging and 
 filling, or alteration of beds or banks are subject to agency 
 approval J 79 Thus the aquaculturist seeking to use such waters in a 
 raceway or pond or to discharge waste waters into these waterways may be 
 required to obtain permits from several state and federal agencies. 
 Obtaining permits is likely to be a time-consuming task. 180 
 
 The federal agency responsible for such permitting is the Army 
 Corps of Engineeers. The Federal Water Pollution Control Act (often call- 
 ed the Clean Water Act) 1 81 authorizes the Corps to regulate the dis- 
 charge of dredged or fill material into the navigable waters of the United 
 States. Controversy exists over the definition of "navigable waters" and 
 the extent of the Corps' jurisdiction, but the trend has been to expand 
 the Corps' jurisdiction J 82 "Discharge of fill material" under 
 Corps regulations includes "[p]lacement of fill that is necessary 
 to the construction of any structure in a water of the United States, the 
 building of any structure or impoundment requiring rock, sand, dirt or 
 other material for its construction; site-development fills for recrea- 
 tional, industrial, commercial, residential and other uses... ."''83 
 Thus, aquaculture activities that alter the course, condition, location, 
 or capacity of navigable waters, as well as construction work including 
 excavation, dredging, and disposal activities, may require a 
 permit. 1 84 
 
44 
 
 The definition of activities requiring a permit is similarly 
 broad under Illinois law. A permit is required for any fill, deposit, or 
 encroachment in a stream that has a drainage area of one square mile or 
 more in urban areas or ten square miles or more in rural areas, 185 
 or for any "construction" in any of these areas. 186 Thus, the con- 
 struction of any intakes or conduits by an aquaculturist to obtain the use 
 of the waters from any streams or bodies of water subject to state 
 regulation would require a permit. 
 
 In Illinois, the agencies involved in dredge and fill permitting 
 have developed a joint application form. A copy of the joint form is sub- 
 mitted to the U.S. Army Corps of Engineers, the Division of Water Re- 
 sources in the Illinois Department of Transportation, and the Illinois 
 Environmental Protection Agency. The applications are reviewed independ- 
 ently and concurrently. 
 
 b. U.S. Army Corps of Engineers and U.S. Environmental Protection 
 
 Agency 
 
 The U.S. Army Corps of Engineers dredge and fill permitting pro- 
 gram^? is administered in conjunction with the U.S. Environmental 
 Protection Agency (U.S. EPA). The Corps is the permitting authority, but 
 guidelines issued by the Environmental Protection Agency pursuant to the 
 Clean Water Act188 contain the substantive criteria for the 
 discharges that will be permitted . 1 89 EPA guidelines include the 
 criteria that discharge of dredged or fill materials is not permitted if 
 there is a "practicable alternative" with a less adverse impact on the 
 
45 
 
 aquatic ecosystem, as long as the alternative does not have other 
 significant adverse environmental consequences. 190 An alternative 
 is "practicable" if it is "available and capable of being done after 
 taking into consideration cost, existing technology, and logistics in 
 light of overall project purposes. "191 
 
 Both the U.S. EPA and the Army Corps of Engineers have statutory 
 veto power over applications, but neither has preemptive author- 
 ity J 92 The Corps may issue a permit even if the EPA gives the 
 application an adverse review, for example, while the EPA may prohibit a 
 particular discharge if it would have adverse effects. 
 
 c. Illinois Department of Transportation 
 
 Pursuant to the Rivers, Lakes, and Streams Act, 193 the 
 Illinois Department of Transportation, Division of Water Resources, has 
 drafted rules for construction in rivers, lakes, and streams. 194 An 
 applicant must submit an application that includes a description of the 
 proposed project, a statement of purpose, and plan and data require- 
 ments. 195 if the Department determines that the proposed construc- 
 tion constitutes a significant action, defined as a project determined to 
 have significant potential for adverse effects on the natural conditions 
 or uses of a river, stream, or lake, 196 the applicant may "be 
 required to submit further information and data. 197 Notice of the 
 application will be published and distributed to adjacent and potentially 
 affected property owners, interested state and federal agencies, area 
 
46 
 
 legislators, local officials and government agencies, and interest groups 
 and organizations J 98 Opportunity for comment is provided, 199 
 and a public hearing may be held if sufficient interest is shown. 200 
 If the Department has neither granted nor denied an application for a 
 permit within 90 days of receipt of the completed application, or within 
 150 days if a hearing is held, the application will be deemed approved 
 unless the applicant agrees in writing to a longer time period. 201 
 
 The Department will not approve any construction that improperly 
 infringes on any public body of water, obstructs the navigability of any 
 public body, or results in unacceptable adverse impacts on the natural 
 conditions of Illinois waters. 202 j n assessing the impact of a 
 structure designed to remove water for use by the applicant, the Depart- 
 ment will look at the hydraulic character of the construction, that is, 
 its impact on the natural flow characteristics of the stream. 203 
 In making its determination, the Department may consider the benefits of 
 the proposed project, including benefits to the state or local economy, 
 and benefits to any public right to enjoyment of the affected stream or 
 body of water. 204 
 
 The Department may issue "general permits" pertaining to specific 
 types of projects, either on a statewide basis or restricted to certain 
 bodies of water. 205 The Department may then grant authorization 
 without notice or interagency coordination to an individual applicant 
 whose project meets all terms and conditions of the general 
 permit. 206 General permits have been granted for such projects as 
 underground utility crossings and bank stabilization projects. 207 
 
47 
 
 The Department may also grant statewide permits for specific 
 types of projects having little impact on stream flows or natural condi- 
 tions. Then no application or further authorization is necessary for pro- 
 jects meeting the terms and conditions of the statewide permits. 208 
 Statewide permits have been granted for bridges in rural areas, floodplain 
 or flood fringe activities, barge fleeting, and utility aerial 
 transmission lines. 209 it seems unlikely, however, that the 
 Department would grant statewide permits for aquaculture operations. 
 
 d. Illinois Environmental Protection Agency 
 
 Pursuant to the federal Clean Water Act, the Illinois Environ- 
 mental Protection Agency ( IEPA) must provide water quality certification 
 prior to issuance of a dredge and fill permit by the Army Corps of Engi- 
 neers. 2 10 The IEPA may require further information from the appli- 
 cant concerning the significant physical and chemical characteristics of 
 the material to be excavated, in order to decide if the discharge involves 
 the potential for water pollution. 211 The IEPA must determine if 
 the proposed project complies with the water quality standards of the 
 Clean Water Act, 21 2 -fog water quality standards of Chapter 3 of the 
 Illinois Pollution Control Board Rules and Regulations, 2 ^ and any 
 other applicable regulations of the Board. 21 4 The IEPA must also 
 determine that the intended activities will not cause interference with 
 existing water uses. 21 5 Conditions relating to the characteristics 
 of the specific site and the nature of the intended activities may be 
 placed on the water quality certification, and the federal permitting 
 authority is required to include such conditions in its permit. 21 6 
 
48 
 
 e. Other Agencies 
 
 Because notice of a dredge and fill application is sent to inter- 
 ested state and federal agencies, agencies other than the permitting 
 agency may become involved in the permit review process. The federal Pish 
 and Wildlife Coordination Act217 gives permit review responsibili- 
 ties to both the United States Pish and Wildlife Service and the state 
 agency exercising administration over wildlife resources, in Illinois, the 
 Department of Conservation. 21 8 Th e findings and recommendations of 
 these agencies may indicate permit approval or denial, or may suggest 
 changes or additions to the project. There also could be involvement on 
 the county or municipal level through zoning and/or building ordinances. 
 
 3. The Time Element 
 
 The Army Corps of Engineers' regulations state: "In view of the 
 extensive coordination with other agencies and the public and the study of 
 all aspects of proposed activities required by the above procedures, 
 applicants must allow adequate time for the processing of their applica- 
 tions. "21 9 For the aquaculturist, regulatory processes can be 
 cumbersome, time consuming, and costly. 220 Delay may occur at 
 several points in the regulatory process; these include notification that 
 an application is incomplete and requires further information, review by a 
 number of federal and state agencies, holding of public hearings, and 
 review by county and municipal planning boards. 221 
 
49 
 
 C. Special Bodies of Water 
 
 Borrow pits, strip mine ponds, and power plant cooling lakes may 
 present opportunities for fish farming. Borrow pits are usually privately 
 owned and use of them would thus require permission of the owner in the 
 form of a lease, license, or other contractual arrangement. Ownership of 
 the pits is sometimes transferred to the Department of Transportaion or 
 the Department of Conservation, and use "by a fish farmer would then be 
 subject to the rules and regulations of those departments. 
 
 Surface mining ponds may become increasingly available for pro- 
 duction of fish under new state and federal reclamation laws that require 
 mining operations to minimize adverse impacts on the environment, includ- 
 ing fish and wildlife, and to enhance such resources where practic- 
 able. 222 p or example, the legal requirement that the mine operator 
 return the mined land to premining contour may represent an opportunity 
 for the creation of an aquatic environment with the proper physical char- 
 acteristics for fisheries development . 223 Ownership of the pond may 
 be in the mining company, if it purchased the land outright, or in a 
 private landowner if the mining company purchased only the coal rights. 
 In either situation, the potential fish farmer would need to obtain use of 
 the pond through contractual agreement. 
 
 Pish production in power plant thermal effluent (that is, 
 cooling) lakes may be constrained by the Food and Drug Administration's 
 food adulteration policies and food labeling requirements. 224 This 
 is particularly true for nuclear power plants, because the Delaney 
 
50 
 
 Amendment provides that no substances that have been found to induce cancer 
 when ingested by persons or animals can be added to foods. 225 
 Radio-nuclides are known to be carcinogenic; thus, utilization of waste 
 heat from nuclear power plants is restricted. 226 coal fired plants 
 that use cooling lakes or have effluent from the cooling of generating 
 equipment have been used for fish culture on experimental basis for 
 several years. Pish raised in these facilities indicate no adverse 
 contamination . 
 
51 
 
 IV. ENVIRONMENTAL AND HEALTH LAWS AND REGULATIONS 
 
 Environmental regulation protects the aquaculturist "by helping to 
 provide clean water, an essential for the aquaculture industry. But that 
 same regulation may cause time delays and increase costs for the aquacul- 
 turist. Environmental laws and regulations affect discharges of effluents 
 from fish farms, use of pesticides and drugs by aquaculturists, and dis- 
 posal of fish wastes. If pollutants from another source damage or kill 
 fish, the farmer may have both statutory and common law remedies against 
 the polluter. 
 
 A. Effluent Permits 
 
 1. NPDES Permits 
 
 The Clean Water Act227 prohibits any person from discharging 
 pollutants into a waterway from a point source without a permit from either 
 the Environmental Protection Agency (U.S. EPA) or an authorized state 
 agency, pursuant to the requirements of the National Pollutant Discharge 
 Elimination System (NPDES). 228 NPDES permitting requirements apply to 
 aquaculture projects. 229 states may administer their own permit 
 programs for discharge of pollutants from aquaculture projects. 230 
 
 In Illinois, permitting of aquaculture projects is handled by the 
 Illinois Environmental Protection Agency (IEPA). The U.S. EPA has author- 
 ity to review permits issued by the IEPA. 231 IEPA regulations 
 require NPDES permits 
 
52 
 
 for the construction, modification, or opera- 
 tion of facilities such as hatcheries, fish farms 
 or other facilities which contain, grow, or hold 
 aquatic animals in ponds, raceways, or other 
 similar structures for purposes of 
 production and from which there is or may be 
 a discharge for any 30 or more days per year, 
 except that NPDES Permits are not required 
 for: 
 
 (a) Closed ponds which discharge only during 
 periods of excess runoff; or 
 
 (b) Facilities which produce less than 
 20,000 pounds of aquatic animals per year 
 [emphasis addedJ.O^ 
 
 In addition, Illinois requires NPDES Permits for any facility containing any 
 
 species of fish or other aquatic animal life normative to the United States 
 
 that discharges into a navigable waters at any time. 233 This 
 
 regulation is intended to prevent the spread of potentially harmful 
 
 organisms and the dissemination of species competitive with game or 
 
 commercial species. 
 
 Illinois ' requirement of a permit for facilities producing over 
 20,000 pounds of fish per year will exempt only very small aquaculture 
 facilities. Catfish ponds of twenty acre size with multiple ponds are 
 recommended in Illinois because fixed costs make smaller operations less 
 profitable. 234 Yields in excess of 3000 lb/a (3000 kg/ha) are 
 commonly harvested from fish farms. 235 Thus, even a twenty acre 
 catfish farm would require a NPDES permit in Illinois. 236 
 
 NPDES permitting for aquaculture facilities may also be done on a 
 case-by-case basis. U.S. EPA regulations authorize the state director of 
 an approved state program to designate any warm or cold water aquatic 
 animal production facility as a facility requiring a permit "upon deter- 
 mining that it is a significant contributor of pollution to waters of the 
 United States. "237 Factors to be considered include the location and 
 
53 
 
 quality of the receiving waters; the holding, feeding, and production 
 capacities of the facility; and the quantity and nature of the pollutants 
 reaching U.S. waters. 238 Illinois regulations make no mention of this 
 provision for case-by-case determinations for aquaculture 
 facilities. 2 39 
 
 Under Illinois NPDES permitting procedures, applicants for NPDES 
 permits for aquaculture facilities are subject to the procedural require- 
 ments of both the Livestock Waste Regulations and the Water Pollution Reg- 
 ulations of the Illinois Pollution Control Board. 240 ^n applicant 
 should apply no later than 180 days in advance of the date on which the 
 permit is required241 or in sufficient time to comply with the re- 
 quirements of the Clean Water Act. 242 ^h e application must include 
 information as to the kinds and numbers of livestock, a statement as to 
 any proposed changes in the size of the operation, a description of land 
 areas used, and a sketch of the existing and/or proposed facility indicat- 
 ing approximate overall dimensions of the facility, direction and location 
 of surface drainage and other discharges, general location of waterways in 
 the area, and location of the area for manure disposal. 243 The IEPA 
 may require further information or a site visit. 244 
 
 When the IEPA determines that the application for the permit is 
 complete, it will send a copy to the U.S. Army Corps of Engineers for its 
 evaluation of the impact of the discharge on anchorage and 
 navigation. 245 if the Corps finds that navigation or anchorage would 
 be impaired substantially, the IEPA will deny the permit. 246 ^ e 
 Corps may also require that specified conditions be included in the 
 permit. 247 
 
54 
 
 Following a tentative determination to issue or deny an NPDES 
 permit, the IEPA will circulate public notice to those within the geo- 
 graphical area of the proposed discharge248 g^ to any other part- 
 ies or agencies that request not ice. 249 An opportunity for comment 
 will he provided, 250 g^ a public hearing may he held if warranted 
 by a significant degree of public interest. 251 
 
 In establishing the terms and conditions of each issued NPDES 
 permit, the IEPA will ensure compliance with all appropriate effluent 
 limitations and standards of the federal Clean Water Act and any more 
 stringent limitations or standards established by Illinois statute or any 
 other federal law or regulation. 252 j n applying these standards, 
 the IEPA will specify average and maximum daily quantitative limits for 
 the level of pollutants in the authorized discharge . 253 
 
 No NPDES permit will be issued if the. U.S. EPA objects to the 
 permit as being outside the guidelines and requirements of section 402 of 
 the Clean Water Act. 254 The U.S. EPA must object in writing within 
 90 days of the date of its notification of the issuance of such a permit 
 or within 90 days of transmittal of the proposed permit by the 
 state. 255 The objection must contain a statement of the reasons 
 for objection, and the effluent limitations and conditions the permit 
 would include if it were issued by the U.S. EPA. 256 
 
 All NPDES permits in Illinois are issued for fixed terms, not 
 exceeding five years. 257 No holder of a permit may discharge any 
 contaminant in the effluent in excess of the standards and limitations 
 for the contaminant set forth in the permit. 258 The holder must, 
 
55 
 
 as a condition of the NPDES permit, monitor and sample effluents, main- 
 tain records, and make reports. 259 
 
 2. Illinois Construction and Operating Permits 
 
 Illinois water pollution regulations may require a construction 
 permit in addition to, or (where a facility does not require an NPDES 
 permit) an operating permit in lieu of, an NPDES permit. 260 gu C h 
 permits are required for a "wastewater source, "261 defined as "any 
 equipment, facility, or other point source of, any type whatsoever which 
 discharges wastewater, directly or indirectly ... to the waters of the 
 state. "262 Because "wastewater" refers to "sewage, industrial or 
 other waste , or any combination of these, whether treated or untreated 
 . . . [emphasis added], "263 and "waters" include "all 
 accumulations of water, surface and underground, natural and artificial, 
 public and private, "264 discharges from an aquaculture facility 
 may require a construction or operating permit. No operating permit is 
 required for discharges for which an NPDES permit is required. 265 
 
 An applicant for a construction or operating permit must apply 
 at least 90 days before the date on which a permit is required. 266 
 The application must describe the volume and nature of the effluent to 
 be discharged, the present condition of the receiving water, the effect 
 of the wastewater on the receiving body, and the geographic location of 
 the facility or source. 267 The IEPA will not grant an operating 
 or a construction permit unless the wastewater source complies with the 
 
56 
 
 Illinois Environmental Protection Act, the Illinois Pollution 
 Control Board Rules and Regulations on Water Pollution, and any condi- 
 tions of the permit. 268 i^ e jepa may impose the conditions neces- 
 sary to accomplish the purposes of Illinois statutes or regulations, or 
 of the federal Clean Water Act. 269 Construction permits will re- 
 quire construction to he completed within two years, 270 and oper- 
 ating permits will not have a duration in excess of five 
 years. 271 
 
 B. Pesticide Regulation 
 
 1. Overview of Federal and State Regulation 
 
 The use of pesticides and herbicides may be necessary to con- 
 trol unwanted aquatic vegetation or "trash fish," that is, fish other 
 than the species being grown. 272 Aquatic weeds may cause shading 
 of water, thus preventing growth of desirable plankton, or may contri- 
 bute to oxygen depletion. 273 Aquaculturists are subject to 
 regulation in their use of pesticides, herbicides, and other chemicals. 
 
 The Federal Environmental Pesticide Control Act (PEPCA) of 
 1972 provides the basis for regulation of pesticide use. 274 The 
 statute requires registration and classification of pesticides by the 
 U.S. EPA, 275 certification of pesticide applicators, 276 
 registration of pesticide establishments, 277 permits for 
 experimental pesticide use, 278 g^ the maintenance of books and 
 
57 
 
 records. 279 states may regulate the sale or use of any federally 
 registered pesticide, but may not impose any requirements "for labeling 
 or packaging in addition to or different from" those required by 
 FEPCA.280 Beyond that, a state may regulate the use and sale of 
 pesticides, but may not permit any sale or use prohibited by 
 FEPCA. 281 
 
 State regulation of pesticides is authorized in the Illinois 
 Pesticide Act of 1979, ^ 2 administered by the Illinois Department 
 of Agriculture. ^3 The Department controls regulation of 
 pesticides and their purchase and use. ^4 The Illinois 
 Environmental Protection Agency enforces the provisions intended to 
 protect the quality of air and water and guard against contamination of 
 land resources. 28 5 Persons must comply with the certification 
 requirements of the Act in order to be licensed as commercial pesticide 
 applicators. 28 6 Special certification is required for certain 
 "technical category areas," including aquatic pest control. 28 ? 
 
 2. Registration Requirements 
 
 Any pesticide 288 sold in the State of Illinois must be 
 registered with the Director of the Department of Agri culture. 28 9 
 The Director will register a pesticide that is registered by the U.S. 
 EPA, except as otherwise provided by the Pesticide Act or the accompany- 
 ing rules. 2 90 The U.S. EPA may not disapprove a registration 
 issued by a state if the pesticide's composition and use patterns are 
 similar to those of a federally registered pesticide. 2 91 
 
5a 
 
 A state may not issue a pesticide registration for food or feed 
 use unless the U.S. EPA has issued a tolerance or exempt ion292 
 permitting residues of the pesticide on the food or feed, 293 
 pursuant to the Federal Pood, Drug, and Cosmetic Act. 294 
 Tolerance is defined as "the amount of residue . . . that can safely re- 
 main on the crop when it moves to market after the pesticide has been 
 applied in the proper manner. "295 Under the Act, no "adulterated" 
 food may be introduced into interstate commerce. 296 pa W agricul- 
 tural commodities are deemed adulterated if they contain any pesticide 
 chemical not generally recognized as safe among qualified scientific ex- 
 perts, unless the quantity of the pesticide chemical is within the 
 limits of the tolerance prescribed by the U.S. EPA or the pesticide has 
 been exempted from the requirements of a tolerance. 2^7 
 
 A state may provide registration for additional uses of feder- 
 ally registered pesticides in order to meet special local needs if the 
 U.S. EPA has not previously denied, disapproved, or cancelled registra- 
 tion. 298 to register a pesticide in Illinois to meet a special 
 local need, the applicant must describe the special local need problem, 
 provide data relative to product efficacy and product hazard, and furn- 
 ish a copy of the label showing claim and warnings. 299 The regu- 
 lation for a special local need may be granted for a specified period of 
 time not to exceed five years. 300 The registration may be disap- 
 proved by the U.S. EPA. 301 
 
 The Illinois Department of Agriculture will register a pesti- 
 cide for which the U.S. EPA has issued an experimental use permit and 
 
59 
 
 for which the applicant has specified an Illinois cooperator for con- 
 ducting experimental studies. 502 jf experimental studies are not 
 to he conducted within the state with an Illinois cooperator, the exper- 
 imental use permit will not be registered. 303 
 
 A person may petition the Department of Agriculture to declare 
 a pest emergency and request approval for nonregistered use of a pesti- 
 cide. 304 An emergency exists when a pest outbreak occurs or is 
 expected to occur, and no pesticide is registered for that particular 
 use or no alternative method of control is available; significant eco- 
 nomic losses or health problems will occur without the use of the pesti- 
 cide; and the time available from discovery of a pest problem is insuf- 
 ficient for a pesticide to be registered for that particular pur- 
 pose. 305 
 
 3. Pesticide Regulation by the IEPA 
 
 As previously noted, the Illinois Pesticide Act gives the Illi- 
 nois Environmental Protection Agency the duty to enforce provisions of 
 the Act intended to protect the quality of air, water, and land 
 resources. 306 niinois Pollution Control Board Regulations provide 
 that "any substance toxic to aquatic life shall not exceed l/lOth on the 
 96-hour median tolerance limit (96-hr. Tim) for native fish or essential 
 fish food organisms except for U.S. EPA registered pesticides approved for 
 aquatic application." The pesticides must be applied pursuant to several 
 conditions: (l) application must be made in strict accordance 
 
59a 
 
 with label directions; (2) the applicator must be properly certi- 
 fied^? (3) application must be in accordance with the laws, reg- 
 ulations, and guidelines of all state and federal agencies authorized "by- 
 law to regulate pesticide applications; and (4) no aquatic pesticide may 
 be applied to waters affecting public or food processing water supplies 
 unless a permit to apply the pesticide is obtained from the 
 IEPA.308 
 
 C. Drug Regulation 
 
 New animal drugs309 must "be registered pursuant to the 
 provisions of the federal Food, Drug, and Cosmetic Act. 310 ^n 
 aquaculturist may need drugs to control diseases and parasites. 311 
 External diseases can be treated by adding chemicals directly to the 
 water in which the fish live, while internal infections may be treated 
 by adding medication to fish feed. 31 2 Qaah drugs are deemed 
 unsafe unless approved for use in a particular animal feed, which is 
 labeled and approved in accordance with regulations of the Pood and Drug 
 Administration. 31 3 The registration requirement does not apply to 
 the drug itself, but to any particular use of the drug. 31 4 The 
 FDA has rejected a "blanket approval" approach and requires registration 
 for each new use as well as for each additional species. 31 5 
 
 Currently, only a few drugs have been certified by the FDA for 
 use by aquaculturists.316 Because of high costs, the considerable 
 length of time needed to perform the tests required for FDA approval, 
 
60 
 
 and the small market for chemicals for use on fish, private companies 
 are somewhat unwilling to undertake the research and development 
 necessary to put more approved fish drugs on the market. 31 7 The 
 FDA does not regularly enforce this aspect of the Act to determine if 
 unregistered chemicals are being used by fish farmers, but "fish farmers 
 are nonetheless faced with the dilemma of having to choose between not 
 using unregistered chemicals and losing valuable fish stock to disease, 
 or using chemicals known to have therapeutic value, but at the risk of 
 being in violation of federal regulations. "318 The U.S. 
 Department of the Interior's Pish and Wildlife Service plan to give 
 high priority to pursuing the registration of drugs and chemicals needed 
 by the aquaculture industry. 31 9 
 
 D. Fish Disposal 
 
 Illinois law regulates the disposal of dead animals, including 
 fish. A fish farmer must dispose of any dead fish in accordance with 
 the Illinois Dead Animal Disposal Act. 320 The fish must be dis- 
 posed of within 24 hours after death. 321 Qn the farm disposal may 
 be by burning or burying. 322 ^o open burning is permitted; any 
 burning must be performed within an approved incinerator meeting the 
 specifications of the Illinois EPA. 323 Burying is allowed in an 
 area where runoff will not contaminate water supplies; at least six 
 inches of compacted soil must cover the uppermost part of the 
 carcass. 324 
 
61 
 
 A fish farmer could use a rendering service for disposal. 
 Transportation to the service may present a problem, however, "because 
 the Department of Agriculture may prohibit the hauling or transportation 
 of the body of any fish that has died of a highly contagious, infec- 
 tious, or communicable disease. In these circumstances, the Department 
 may also specify the method of disposal. 325 it is unlikely that 
 any chemicals used on the fish would affect disposal or that federal 
 hazardous waste regulations would apply. 326 
 
 E. Pollution from Neighboring landowners 
 
 As the above discussion of environmental laws affecting aqua- 
 culture indicates, fish farmers are subject to a number of laws and 
 regulations designed to prevent pollution that harms the environment 
 and adjacent landowners. Because of the importance of pure water for a 
 viable aquaculture operation, however, fish farmers may be victims of the 
 polluting activities — for example, improper pesticide applications — of 
 other landowners. If these activities harm the aquaculture operation, the 
 operator may have either statutory or common law remedies. 
 
 1. Statutory Remedies 
 
 The Illinois Environmental Protection Act327 recognizes 
 that pollution of the waters of the state is harmful to aquatic 
 life. 328 The Act prohibits the discharge of contaminants into the 
 
62 
 
 environment so as to cause or tend to cause water pollution. 329 it 
 provides procedures for investigating complaints of water pollution, for 
 hearings at which determinations of the validity of complaints are made, 
 and for orders by which continued pollution can be enjoined. 330 
 Accordingly, a fish farmer whose source of water supply has been polluted 
 may wish to request an Environmental Protection Agency investigation of 
 the problem. 331 
 
 The Pish Code also contains a provision that may help abate pol- 
 lution. The Code provides that "Lijf any person causes any . . . pollu- 
 tant to enter into . . . waters of this State so as to kill aquatic life, 
 the Department [of Conservation], through the Attorney General, may bring 
 an action against such person and recover the value of . . . the aquatic 
 life destroyed[.]"332 The money recovered is placed in the Wildlife 
 and Pish Fund of the state. 333 Because this remedy is available to 
 the state (rather than to individuals), and because the Pish Code was 
 evidently enacted without careful consideration of a potential aquaculture 
 industry, it is doubtful that this provision would be of immediate 
 financial benefit to a fish farmer. 
 
 Another remedy provided by statute deals with the problem of 
 improper pesticide application. The Illinois Pesticide Act334 pro- 
 vides that it does not relieve any person using pesticides from liability 
 for any personal injury or property damage, even though the pesticide use 
 conformed to label instructions and all pertinent state rules and regula- 
 tions. 335 Moreover, the statute provides added protection in the 
 case of commercial pesticide applicators. These applicators will not be 
 
63 
 
 licensed by the Illinois Department of Agriculture unless the application 
 is accompanied by evidence of financial responsibility — a surety bond or 
 liability insurance certificate. The bond is payable to the Director of 
 Agriculture for the benefit of a party who may sustain personal injury or 
 property damage as a result of the pesticide application. 336 
 
 2. Common Law Remedies 
 
 Although these statutory remedies, when applicable, may help to 
 protect the fish farmer, they do not represent the only remedy against 
 pollution. Indeed, the Illinois Environmental Protection Act states 
 specifically that it does not exclude or impair any existing civil law 
 remedy. 337 Thus, common law remedies for pollution continue to 
 exist. And, at common law, "every owner of land through which water flows 
 either as surface water or in a stream, has the right to have the same 
 flow in its natural state, which extends to the quality as well as the 
 quantity of the water. One who pollutes or contaminates the water is 
 liable to those injured thereby. "338 
 
 A fish farmer whose operation sustains damage from the actions of 
 other landowners may be able to choose among several common law remedies. 
 Among these are trespass (when others interfere with the fish farmer's 
 exclusive possession of the aquaculture property) , nuisance (unreasonable 
 interference with enjoyment of property), or negligence. 339 The 
 selection of one or more of these remedies, or of another common law cause 
 of action, can be made only with advice solicited from the aquaculturist ' s 
 attorney. 
 
64 
 
 V. COMPARISONS AND RECOMMENDATIONS FOR WATER USE 
 AND ENVIRONMENTAL PROTECTION 
 
 Sections III and IV have surveyed water use and environmental 
 protection laws, both Illinois and federal, that affect aquaculture in 
 Illinois. As the discussions in those sections indicate, the present reg- 
 ulatory climate in Illinois is not particularly hospitable to aquaculture 
 operations. Other states offer a more sympathetic legal environment, as 
 the provisions mentioned below will illustrate. Moreover, a number of 
 changes in Illinois law could make the development of aquaculture more 
 attractive. 
 
 A. Aquaculture in Other States 
 
 In most states, as in Illinois, health, environmental, fish and 
 wildlife, or other agencies require permits and licenses for fish farm- 
 ing. 340 5 0me states have encouraged aquaculture by streamlining 
 regulatory processes and permitting procedures. Others have made substan- 
 tive changes in their laws, providing special treatment or environmental 
 protection for the fish farmers. 
 
 Several states make explicit provisions for controlling water 
 pollution that affects aquaculture. One example, is the adoption of water 
 quality standards to preserve the waters of the state for fish culture, 
 among other uses. 341 Several states have set effluent standards 
 specifically to regulate wastes resulting from pond or raceway cul- 
 tures. 342 
 
65 
 
 Restrictions on water and land uses vary among the states that 
 promote aquaculture. In Mississippi, regulation of water and land uses is 
 less restrictive than in many other states, resulting in more permissive 
 regulation of aquaculture. 343 Wisconsin, in contrast, has a compre- 
 hensive set of regulations intended to protect state navigable waters and 
 to regulate the location of aquaculture facilities. The state's Depart- 
 ment of Natural Resources offers extensive cooperation and consultation 
 for potential aquaculturists.344 
 
 Oregon has adopted a strong policy for protection of wild salmon 
 populations and prevention of environmental harm. 345 Thus, the pro- 
 cess of obtaining salmon hatchery permits is difficult, time-consuming, 
 and expensive. 346 ^q Florida legislature ensured greater ease in 
 obtaining permission for water use by authorizing the leasing of both sub- 
 merged lands and vertical water columns. 347 The state's regulatory 
 procedures, however, remain both costly and time-consuming. 348 
 
 Hawaii has been the leader in streamlining the regulatory pro- 
 cesses involved in aquaculture development. 349 legislative exemp- 
 tion of aquaculture and mariculture from the definition of development in 
 coastal areas under the state ' s Coastal Zone' Management Act has reduced 
 permit approval time. 350 Further, an Aquaculture Planning Office 
 has been established in the Department of Planning and Economic Develop- 
 ment to provide consulting services to avoid costly, time-consuming 
 delays. Potential aquaculturists are encouraged to face siting issues 
 before seeking the appropriate federal, state, and local permits. "Rather 
 than confront dredge and fill or shoreline setback requirements head on, 
 for example, the aquaculturist is advised to investigate alternative sites 
 where such restrictions do not exist. "351 
 
66 
 
 Oregon has sought to expedite its regulatory processes "by 
 publishing lists of every permit required by each state agency and 
 by providing cost-free services to develop master applications, to arrange 
 regulatory conferences, and to consolidate, if possible, any required 
 public hearings. 352 Similarly, Florida's Division of Marine 
 Resources and its Game and Fresh Water Fish Commission will attempt to aid 
 fish farmers in developing their activities in ways that will avoid 
 conflicts with other traditional water uses, such as recreation and 
 commercial and sport fishing. 353 The State's Aquaculture 
 Investigation Team, within the Game and Fresh Water Commission, will offer 
 technical assistance on such matters as choices, facility design, and 
 disease prevent ion. 354 
 
 A directory of state regulations affecting the development of 
 aquaculture is available. 355 The directory includes a summary of 
 state laws and regulations affecting aquaculture in thirty- two states. It 
 does not include Illinois. 
 
 B. Recommendations for Illinois 
 
 The development of aquaculture in Illinois is hindered both by 
 substantive provisions in Illinois and United States laws and regulations 
 and by complex regulatory processes. The number of agencies and permit 
 requirements involved and the lack of specific provisions applicable to 
 aquaculture make the potential aquaculturist ' s task a difficult one. Many 
 legal and regulatory uncertainties now accompany the aquaculture industry. 
 
67 
 
 As one writer noted: 
 
 The law governing aquaculture is complex, and no 
 doubt has a negative effect on the industry's 
 growth. The extent of this negative impact is 
 impossible to measure, but even a peripheral 
 exposure to the industry brings one into contact 
 with a constant stream of persons who decide not 
 to enter the fray when the bureaucratic obstacles 
 are made known to them. 356 
 
 The federal laws and regulations affecting aquaculture present 
 significant potential for improvement. The national aquaculture develop- 
 ment plan is presently scheduled to be issued in late June 1982.357 
 The plan should address such issues as water quality management and use of 
 waste products (including thermal effluents); research programs on the 
 effect of aquaculture on water areas and on the management of those areas 
 for aquaculture; and programs to analyze, and formulate resolutions of, the 
 legal or regulatory constraints affecting aquaculture. 358 The 
 National Aquaculture Act calls for an information service to be maintained 
 to collect, analyze, and disseminate scientific, technical, legal and 
 economic information relating to aquaculture. 359 The Act also allows 
 for federal cooperation with state agencies. 360 To improve the legal 
 climate for aquaculture, however, any changes in federal law that result 
 from the Act must be combined with improvements in state laws and regula- 
 tions. 
 
68 
 
 1. Potential Improvements in Illinois Water Use Law 
 
 a. Public Regulation of Waters 
 
 Given the reluctance of the Illinois Departments of Transporta- 
 tion and Conservation to allow for a private use such as cage culture in 
 public waters, statutory authorization or encouragement will probably be 
 needed if this form of aquaculture is to be developed in Illinois. Guide- 
 lines are necessary to establish how lakes and streams can be used for cage 
 culture without interfering with traditional uses like recreation and com- 
 mercial and sport fishing, or to establish the permissible degree of inter- 
 ference with these traditional uses. The state could provide for leasing 
 of vertical water columns for cage culture use. 361 
 
 b. Dredge and Fill Permitting 
 
 It has been suggested that the U.S. Army Corps of Engineers dredge 
 and fill permitting program could be improved by such measures as (l) the 
 publication and distribution of permit compliance guides specifically tail- 
 ored to the needs of aquacultur ists ; (2) the creation of "an aquaculture 
 permit ombudsman in conjunction with an aquaculture compliance information 
 office" for potential fish farmers; and (3) the development of 
 preappli cation planning and consulting procedures among the Corps, EPA, and 
 other federal and state agencies. 362 These suggestions would also 
 improve the permitting procedures of the Illinois Department of 
 Transportation for construction in rivers, lakes, and streams. Illinois 
 could develop specific rules for aquaculture facilities regarding the 
 
69 
 
 necessary construction in streams and disseminate information and 
 guidelines to potential aquaculturists. 
 
 Illinois regulations currently allow for the issuance of state- 
 wide permits for specific types of projects having little impact on stream 
 flows or natural conditions, 363 and of general permits pertaining to 
 specific types of projects which meet certain conditions. 364 investi- 
 gation should be conducted to determine if aquaculture permitting could he 
 conducted on either of these bases. 
 
 c. Special Bodies of Water 
 
 Specific legislation could be enacted to encourage the use of 
 borrow pits and strip mining ponds for aquaculture projects. 
 
 2. Potential Improvements in Illinois Environmental Law 
 
 a. Effluent Permits and NPDES Permitting 
 
 Currently, Illinois NPDES permitting requirements are stricter 
 than those of the U.S. EPA. Illinois does not require a permit for a 
 facility that produces less than 20,000 pounds of fish per year, while the 
 U.S. EPA does not require a permit for facilities holding warm water fish 
 species (which includes catfish) if the facility produces less than 
 100,000 pounds of fish per year. 365 Revision of IEPA guidelines to 
 incorporate this less stringent standard would put less burden on 
 aquaculturists. Case-by-case determinations, currently used in the 
 federal regulations, could be made where an aquaculture facility poses a 
 
70 
 
 significant pollution risk. 366 >^± s authorization for case-by-case 
 determinations should be made explicit in Illinois regulations. The 
 establishment of effluent standards particular to aquaculture facilities 
 would also improve NPDES permitting. 
 
 b. Illinois Construction and Operating Permits 
 
 Illinois requires construction permits in addition to, or operat- 
 ing permits in lieu of, NPDES permits for wastewater sources. 367 
 The development of specific guidelines applicable to aquaculture facili- 
 ties would clarify the responsibilities of the aquaculturist in meeting 
 the requirements of these permits. And, similar to NPDES permitting 
 guidelines, Illinois could define the size of a facility requiring a 
 permit in terms of the amount of fish produced or the volume of wastes 
 expelled . 
 
 c. Pesticides and Drugs 
 
 The primary need in the pesticide and drug area is further 
 research into safe chemicals for aquacultural use, and the approval and 
 registration of these chemicals. Cooperation between federal and state 
 agencies, universities, and the chemical and drug industry would aid this 
 process. 368 Technical assistance in disease prevention and predator 
 control could be provided to fish farmers by state agencies. 
 
71 
 
 d. Pollution from Neighboring Landowners 
 
 Clean water is essential to the development of aquaculture. 
 Maintenance of water quality standards to preserve water resources for 
 fish propagation should be among the express purposes of Illinois 
 pollution control laws. Furthermore, statutory remedies should exist for 
 a fish farmer whose fish are damaged or killed by the wrongful acts of 
 neighboring landowners or other holders of riparian rights. Current 
 common law remedies may prove inadequate to meet the needs of an 
 aquaculture industry, and current statutory remedies do not cover the 
 range of damages from which an aquaculturist might suffer. Statutory 
 relief currently exists for a person who suffers damages from pesticides 
 used by a commercial pesticide operation. 369 in addition, anyone 
 who pollutes state waters so as to kill aquatic life may be required to 
 pay damages to the state. 370 These provisions, however, do not 
 adequately protect the owner of fish propagated for private purposes from 
 the wide range of possible harm caused to fish. 
 
 3. Improving Regulatory Processes 
 
 A recent analysis371 by Hawaii's Department of Planning and 
 Economic Development identifies six factors that may cause regulatory 
 inefficiency: poor communication, delay, lack of coordination, redundancy 
 of procedures, lack of specific decision-making criteria in regulations, 
 and nonconformance of regulatory procedures and their substantial 
 objectives. ^72 Proposed techniques to deal with these problems 
 
72 
 
 include the creation of permit registers or checklists, permit information 
 centers, permit ombudspersons, and "major" and "minor" permit 
 distinctions. 573 Preapplication conferences may greatly improve the 
 permitting process "by eliminating unnecessary delays and denials. 374 
 The Hawaii study also recommends creation of consolidated applications and 
 joint hearings, where possible. 375 Identification of a lead or 
 coordinating agency to guide applications through the interagency review 
 process is recommended. 376 Agency assistance can also be beneficial 
 in dealing with technical matters, such as pond design, predator control, 
 and disease prevention. 377 
 
 Implementation of some or all of these recommendations would 
 greatly aid potential fish farmers and encourage the development of a 
 strong aquaculture industry in Illinois. 
 
FOOTNOTES 
 
 1. R. Gorden and R. Westgren, Aquaculture: Opportunities for an Expanded 
 Industry in Illinois, Project No. 20.140, Illinois Institute of 
 Natural Resources (1980). 
 
 2. Skiriotes v. Florida, 313 U.S. 69 (1941). 
 
 3. 43 U.S.C. § 1311 (1976). 
 
 4. See T. Kane, Aquaculture and the law, U. of Miami Sea Grant Program, 
 Technical Bulletin No. 2 (1970). In Kane's opinion, aquaculture 
 would he subject to state regulation "because it would he considered a 
 fishery for the purposes of state/federal preemption analysis. Id. 
 at 35. 
 
 5. 16 U.S.C. §§ 2801-2810 (Supp. IV 1980). 
 
 6. Arkansas and Mississippi have enacted domestic fish farming statutes 
 which provide that use of the term "agriculture" in any statute or 
 regulation of the state shall include "cultivation, growing, 
 harvesting and/or marketing of domesticated fish." Ark. Stat. Ann. § 
 78-180l(a) (1980); Miss. Code Ann. § 69-7-501 (1980). 
 
 7. G. Bowden, Coastal Aquaculture Law & Policy: A Case Study of 
 California 41 (1981). 
 
 8. Cal. Food & Ag. Code § 23-5 (1976); Cal. Fish & Game Code § 6450 et 
 seq . (1976). 
 
 9. 16 U.S.C. § 2801(h) (Supp. IV 1980). That section provides, in per- 
 tinent part, that the purpose of the Act is "to promote aquaculture 
 in the United States hy — (l) declaring a national aquaculture policy; 
 (2) establishing and implementing a national aquaculture development 
 plan; and (3) encouraging aquaculture activities and programs in both 
 the public and private sectors of the economy [ . ] " Id . 
 
10. See 29 U.S.C. § 213 et seq . (1976). 
 
 11. 29 C.P.R. §§ 780.109, 780.120 (1981). 
 
 12. This report makes no attempt at a comprehensive survey of aquaculture 
 law in all states. Instead, its focus is directed toward states with 
 significant aquaculture activity or laws particularly receptive to 
 aquaculture. 
 
 13. Ark. Stat. Ann. § 7B-180l(a) (1980); Cal. Tbod & Ag. Code § 23-5 
 (1976); Miss Code Ann. § 69-7-50(a) (1980). 
 
 14. Ark. Stat. Ann. § 78-1801 (b) and (c) (1980); Miss. Code Ann. § 
 69-7-50l(b) and (c) (1980). 
 
 15. Ark. Stat. Ann. § 85-9-109(3) (1975) provides that goods that are 
 "farm products" shall include fish grown for sale on any fish farm. 
 
 16. Because section 9-109(3) of the Uniform Commercial Code states that 
 "farm products" include "crops or livestock," a "broad aquacultural 
 recognitional statute which provides that the terms "cultivated crop" 
 and "livestock" include farm-raised fish should extend protection to 
 creditors wanting to take a security interest in the farm-raised 
 fish. See, e.g. , Ark. Stat. Ann. § 78-1801 (1980) and Miss. Code 
 Ann. § 69-7-501 (1980) . The simple Arkansas amendment to Article 9 
 should, however, dispel any doubts about the validity of a security 
 interest in farm-raised fish. 
 
 17. The three states are Arkansas, Ark. Stat. Ann. § 82-987 et seq . 
 (1975); Alabama, Ala. Code Ann. § 2-11-30 et seq . (1975); 
 Mississippi, Miss. Code Ann. § 69-7-601 et seq . (1975). 
 
 18. Miss. Code Ann. § 79-19-1 et seq. (1980); Ala. Code Ann. § 2-10-50(1) 
 (1980). 
 
19. See generally J. ELson & N. Krausz, Legal Handbook for Directors and 
 Members of Illinois Coops (1958). 
 
 20. I.R.C. §§ 521, 1381 (1976). 
 
 21 . Id. § 1382. 
 
 22. Id. § 1381. 
 
 23. Id. § 521(b)(1). 
 
 24. Rev. Rul. 64-246, 2 Cum. Bull. 154 (1964). 
 
 25. I.R.C. § 521(b)(2) (1976). 
 
 Two Revenue Rulings have attempted to provide guidance through ex- 
 amples of what constitutes a § 521 producer for purposes of the "sub- 
 stantially all" ownership test. Generally, any owner or tenant who 
 bears the risks of production will qualify as a producer. Thus, own- 
 ers receiving fixed rentals will not qualify, while owners whose 
 rentals are based on farm production will qualify. The rulings also 
 specify that a corporation may qualify as a § 521 producer. A share- 
 holder, however, does not qualify solely because the corporation 
 qualifies. Rather, the shareholder must qualify as a § 521 producer 
 in his or her own right. Finally, the rulings allow part-time pro- 
 ducers, such as doctors or dentists, to qualify. Rev. Rul. 72-589, 
 2 Cum. Bull. 282 (1972); Rev. Rul. 67-422, 2 Cum. Bull. 217 (1967). 
 
 27. Rev. Rul. 77-384, 2 Cum. Bull. 198 (1977). 
 
 28. La. Stat. Ann. ch. 56, § 411 et seq . (1980). 
 29- Id. § 411(5). 
 
 30. Id. § 411(4). 
 
 31. Id. § 412. 
 
32. The domestic fish farming statute expressly exempts fish farmers from 
 the retail fish dealers license requirement. Id. § 412(4). Finding 
 the exemption from the wholesale fish dealers license requirement 
 requires a careful reading of the Louisiana statutes. First, the 
 wholesale dealers license is only needed for the sale of commercial 
 fish taken from the waters of Louisiana. Id. § 340. Commercial fish 
 means all freshwater commercial fish and saltwater species found in 
 the waters of the state. Id. § 8(20). Because domestic fish are 
 raised in privately owned waters rather than waters of the state, 
 those fish are not commercial fish. Therefore, because the domestic 
 fish farmer is not selling commercial fish he does not need to comply 
 ■ with the wholesale fish dealer license requirement. This reading of 
 the statutes is also "buttressed by id_. § 412(4) , which allows 
 domestic fish farmers to sell domesticated fish without restriction 
 both in and out of state simply by notifying the commission of the 
 sales. 
 
 33- Id. § 413. 
 
 34. Id. 6 27. 
 
 35. Id. § 412(5). 
 
 36. Tex. Code. Ann. ch. 48 (1980). 
 
 37. Id. § 48.002. 
 
 38. Id. $ 48.001. 
 
 39. Id. § 48.001(2). 
 
 40. A fish farmer would not be a commercial fisherman because a commer- 
 cial fisherman is defined as one who takes fish from the waters of 
 Texas. Id. § 47.00l(l). See 1952 Att'y. G-en. Op. No. V-1516, which 
 noted that the taking of rainbow trout from a privately owned 
 
artificial lake would not be subject to the statutory provisions. 
 Similarly, a fish farmer usually takes fish from privately owned 
 ponds. 
 
 The wholesale and retail fish dealers licensing requirement would 
 also seem not to apply to domestic fish farmers. The license 
 requirement for those two dealers applies only to those engaged in 
 the business of buying fish for the purpose of resale. Tex. Code 
 Ann. § 47.001(3) (4) (1980). Because the fish farmer raises the fish, 
 rather than merely buying them for resale, the fish farmer would not 
 be a wholesale or retail dealer. Furthermore, this result is 
 inherent in the fish farming licensing statute which provides, among 
 other things, that a fish farmer is a person who transports and sells 
 fish. Id. § 48.00l(l). The statute then allows a person to carry on 
 these fish farming activities only upon the acquisition of a fish 
 farming license. Id. § 48.002. By negative implication the purchase 
 of the license authorizes the fish farmer to transport and sell his 
 fish. The wholesale and retail fish dealers licenses therefore would 
 not be needed. 
 
 41. 18 U.S.C. § 42 (1976). 
 
 42. 18 U.S.C. § 42(a)(1) (1976). 
 43- 50 C.F.R. § 16.13(a)(1) (1981). 
 
 44. 50 C.F.R. § 16.13(a)(2) (1981). 
 
 45. Ala. Code Ann. § 9-2-13 (1980). 
 
 46. Ga. Code Ann. § 45-81l(d) (1980). 
 
 47. La. Stat. Ann. ch. 56, § 319(A) (1980). 
 
 48. 111. Rev. Stat. ch. 5, $§ 1201-1214 (1981). 
 
49. Id. § 1202(b). 
 
 50. Id. §§ 1001-1020. 
 
 51. Id. § 1003.02. 
 
 52. Id. ch. 48, §§ 1001-1015. 
 
 53. Id. § 321.4.1. 
 
 54. Id. § 324. 
 
 55. Id. § 138.3.19. 
 
 56. Id. ch. 5, § 804.4. 
 
 57. Id. § 92. 
 
 58. Id. ch. 56, §§ 1.1-6.5. 
 
 59. Id. § 2.1. 
 
 60. The doctrine of state ownership expressed in § 2.1 of the Fish Code 
 is subject to serious doubt, at least for some purposes. In 1979, 
 the United States Supreme Court decided Hughes v. Oklahoma, 441 U.S. 
 322 (1979), a case that focused on an Oklahoma statute prohibiting 
 transportation for sale outside the state of natural minnows 
 harvested from waters within the state. In finding the statute 
 repugnant to the Commerce Clause, the Court referred to "the 
 19th-century legal fiction of state ownership." Id. at 336. 
 
 In Hughes , the Court quoted with approval the following 
 
 language: 
 
 A State does not stand in the same position 
 as the owner of a private game preserve and 
 it is pure fantasy to talk of 'owning' wild 
 fish, birds, or animals. Neither the States 
 nor the Federal Government, any more than a 
 hopeful fisherman or hunter, has title to 
 
these creatures until they are reduced 
 to possession "by skillful capture .... 
 Geer v. Connecticut, 161 U.S. 519, 539- 
 40 (1896) (Field, J., dissenting). 
 
 Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284 (1977). 
 
 Although the Court rejected the concept of state ownership of 
 fish when interstate commerce is involved, the Court did not leave 
 the states powerless to control their wildlife resources. "We con- 
 sider the States' interests in conservation and protection of wild 
 animals as legitimate local purposes similar to the States' interests 
 in protecting the health and safety of their citizens." 441 U.S. at 
 337. Thus states continue to have authority, under the police power, 
 to regulate for the protection of aquatic life. 
 
 61. HI. Rev. Stat. ch. 56, § 2.2 (1981). 
 
 62. Id. § 42. 
 
 63. Id. § 5.8(b). 
 
 64. See notes and text accompanying notes 28-40, supra . 
 
 65. 111. Rev. Stat. ch. 56, § 5-16 (1981). 
 
 66. Id. 
 
 67. Id. § 5.12(b). 
 
 68. Id. § 5.12(b)(1). 
 69- Id. 
 
 70. Id. § 5.12(b)(2). 
 
 71. Id. 
 
 72. Id. § 3.20. 
 
 73« See note 41 supra. 
 
74. See notes and text accompanying notes 13-14 supra . 
 75* See notes and text accompanying notes 6-7 supra . 
 
 76. See notes and text accompanying notes 15-16 supra . 
 
 77. See note and text accompanying note 17 supra . 
 
 78. See notes and text accompanying notes 16-27 supra. 
 
 79. 111. Rev. Stat. ch. 32, §§ 440-472 (1981). 
 
 80. Miss. Code Ann. § 79-21-1 et seq. (1980). 
 
 81. Ala. Code Ann. § 2-10-50(1) (1975). 
 
 82. See notes and text accompanying notes 58-71 supra . 
 
 83. See notes and text accompanying notes 28-40 supra . 
 
 84. In addition, the legislature should consider amending § 2.1 of the 
 Pish Code, which provides that ownership and title to fish are in the 
 state. This provision may deter potential fish farmers from raising 
 fish in their privately-owned bodies of water. See note 60 supra . 
 
 85. 12 U.S.C. §§ 2001-2260 (1976), as amended by Para Credit Act 
 Amendments of 1980, Pub. L. No. 96-592, 94 Stat. 3437 (1980). 
 
 86. 12 C.P.R. § 614.4150 (1982). The five factors are: (l) the 
 applicant's established integrity; (2) the operation's financial 
 position and progress; (3) repayment capacity; (4) the constructive 
 purpose and practical repayment terms; and (5) the collateral offered 
 or available as security. See Home, Sources of Agricultural 
 Financing With an Bnphasis on the Parm Credit System , 2 Agric. L.J. 
 15, 26-29 (1980). 
 
 87. 12 U.S.C. § 2016 (1976), as amended by Pub. L. No. 96-592, § 105, 94 
 Stat. 3437 (1980). 
 
88. 12 C.F.R. § 613-3010 (1982). 
 
 89. Id. § 613.3020(c). 
 
 90. Id. § 613.3020(e). 
 
 91. Id. § 614.4180. 
 
 92. Id. § 614.4230. 
 
 93. 12 U.S.C. § 2017 (1976), as amended by Pub. L. No. 96-592, § 106, 94 
 Stat. 3437 (1980). 
 
 94. 12 C.P.R. § 614.4170 (1982). 
 
 95- 12 U.S.C. § 2018 (1976), as amended by Pub. L. No. 96-592, § 107, 94 
 Stat. 3437 (1980). 
 
 96. Id. § 2096(a), as amended by Pub. L. No. 96-592, § 210(l), 94 Stat. 
 3437 (1980). 
 
 97. 12 C.P.R. § 614.4200 (1982). 
 
 98. Id. § 614.4250(a). 
 
 99. Id. § 614.4250(c). 
 
 100. See text accompanying notes 15, 16, 17 supra . 
 
 101. 12 U.S.C. § 2128 (1976), as amended by Pub. L. No. 96-592, § 304, 94 
 Stat. 3437 (1980). 
 
 102. 12 C.P.R. § 613.3070 (1982). 
 
 103. Id. § 613.3110(a). 
 
 104. Id. § 613.3110(b), (c). 
 
 105. 7 U.S.C. § 1991 (Supp. IV 1980). 
 
 106. Id. § 1992 (1976). 
 
 107. Id. § 1923 (Supp. IV 1980). 
 
 108. Id. § 1925; 7 C.P.R. § 1943-17 (1982). 
 
 109. 7 U.S.C. $ 1927(c) (Supp. IV 1980). 
 
110. Id. § 1927(a)(1), 
 
 111. Id. § 1927(a)(2). 
 
 112. Id. § 1927(a)(5). 
 
 113. See 7 U.S.C. § 1942 (Supp. IV 1980); 7 C.F.R. § 1941.16 (1982). 
 
 114. 7 C.P.R. 6 1941.17 (1982). 
 
 115. 7 U.S.C. § 1946(b) (Supp. IV 1980). 
 
 116. 7 C.P.R. § 1941.18 (1982). 
 
 117. 7 U.S.C. § 1946(a) (Supp. IV 1980). 
 
 118. Id. 
 
 119- Id.; 7 C.P.R. § 1941.19 (1982). 
 
 120. 7 U.S.C. § 1961(a) (Supp. IV 1980). Congress wanted to ensure that 
 fish farmers did not find themselves in a "no man's land", where, 
 through unfavorable statutory interpretation, they were unable to 
 obtain disaster loan assistance. See 1975 U.S. Code Cong. & Ad. News 
 718. 
 
 121. 7 U.S.C. § 1963 (Supp. IV 1980). 
 
 122. Id. § 1970. 
 
 123. Id. § 1964(a)(1). 
 
 124. Id. § 1964(d). 
 
 125- Id. § 1964(b), as amended by Pub. L. No. 97-35, § 162, 95 Stat. 378 
 (1981). 
 
 126. Id. 
 
 127. 7 U.S.C. § 1964(d) (Supp. IV 1980). 
 
 128. The regulations of the Farmers* Home Administration indicate that the 
 types of natural disasters likely to affect fish farmers are also the 
 types of natural disasters covered by PmHA emergency loans. For 
 example, the regulations provide that PmRA-covered natural disasters 
 
include those caused "by excessive rainfall, flood, drought, excessively- 
 high temperatures, and animal diseases where abnormal weather 
 contributed significantly to the spread of the diseases into the 
 epidemic stages. 7 C.F.R. § 1945.6(a)(2) (1982). It would seem 
 therefore that fish farmers who suffer fish losses due to oxygen 
 depletion caused by excessively high temperatures would be eligible for 
 FmHA emergency financing. 
 
 129. 15 U.S. C. § 632(a) (Supp. IV I960). The law defines a small business 
 concern to include an enterprise engaged in the business of 
 aquaculture. 
 
 130. 15 U.S.C. § 636(b) (1976 & Supp. IV 1980). 
 
 131. Id. § 647(a) (Supp. IV 1980). . 
 
 132. Joint Subcommittee on Aquaculture, Pinal Report: A Study to Examine 
 the Capital Requirements of the U.S. Aquaculture Industry 46 (June 15, 
 1981) . 
 
 133. Id. 
 
 134. 7 U.S.C. §§ 1501-1520 (1976 & Supp. IV 1980). 
 
 135. Id. § 1508(a). 
 
 136. Id. § 1518. 
 
 137. Id. § 1508(a). 
 
 138. Crop Reporting Board, Statistical Reporting Service, U.S. Department 
 of Agriculture, Catfish 6 (1981). 
 
 139. J. Lee, Commercial Catfish Farming 22, 81 (1973). 
 
140. Evans v. Merriweather, 4 HI. 492 (1842). 
 
 Natural watercourses may be a significant source of water for 
 aquaculture in Illinois, as they are in other states. For example, 
 27$ of California's water supply for aquaculture is from rivers; 3°$ 
 of the supply in Georgia comes from streams; and 2C$ of Texas's supply 
 is from lakes. Catfish, supra note 138 at 6. It is important to 
 note, however, that all states do not follow riparian doctrine. 
 
 141. In navigable waters, however, the landowner's right is subject to a 
 public easement for navigation. See Tempel v. U.S., 248 U.S. 121, 129 
 (1918) . 
 
 142. P. Mann, H. Ellis, N. Krausz, Water-Use Law In Illinois 16 (1964). 
 
 143. Bouris v. Iargent, 94 111. App. 2d 251, 254, 236 N.E.2d 15, 17 
 (1968). 
 
 144. Evans v. Merriweather, 4 HI. 492 (1842); Bouris v. Iargent, 94 HI. 
 App. 2d 351, 236 N.E.2d 15 (1968). 
 
 145- Id. 
 
 146. See Mann, Ellis, Krausz, supra note 142, at 19-26 for a discussion of 
 these issues. 
 
 147. See Batavia Mfg. Co. v. Newton Wagon Co., 91 HI. 230 (1878), which 
 sanctioned a contract that conveyed riparian rights for power 
 purposes, but did not involve nonriparian use. 
 
 148. See Mann, Ellis, Krausz, supra note 142, at 22-23- 
 
 149. Schulte v. Warren, 218 111. 108, 75 N.E. 783, 786 (1905). 
 
150. People v. Bridges 142 111. 30, 31 N.E. 115, 118 (1892). See also the 
 Illinois Pish Code, cited supra n ote 5B. 
 
 151. DuPont v. Miller, 310 HI. 140, 141 N.E. 423, 425 (1923), error 
 dismissed, 269 U.S. 528 (1925); Schulte v. Warren 218 111. 108, 75 
 N.E. 783, 785 (1905). 
 
 152. See Tempel v. U.S., 248 U.S. 121, 129 (1918). 
 
 153. David M. Swain & Son v. Chicago B. & Q. R. Co., 97 N.E. 247, 252 111. 
 622 (1912). 
 
 154. Schulte v. Warren, 218 111. 108, 75 N.E. 783 (1905). 
 
 155. 111. Rev. Stat. ch. 56, § 4.35 (1981). 
 
 156. Doum v. Cooper, 208 111. 391, 70 N.E. 339, 342 (1904). 
 
 157. Illinois Central R.R. Co. v. Heisman, 192 111. 571, 61 N.E. 656 
 (1891). 
 
 158. East St. Louis & Carondelet Ry. Co. v. Eisentraut, 134 HI. 96, 24 N.E 
 760, 761 (1890). 
 
 159- Montgomery v. Downer, 17 111. 2d 451, 162 N.E. 2d 6, 12 (1959); Coomer 
 v. Chicago & N.W. Transp. Co., 91 111. App. 3d 17, 414 N.E. 2d 865, 869 
 (1980) . A landowner who wishes to change the channel of a water- 
 course should not proceed with the project without consulting with the 
 Illinois Department of Transportation, which exercises regulatory 
 authority over rivers, lakes, and streams. 
 
 160. Coomer v. Chicago & N.W. Transp. Co., 91 HI. App. 3d 17, 414 N.E. 2d 
 865, 869 (1980). 
 
 161. Lindberg v. Lemenager, 73 HI. App. 3d 623, 392 N.E. 2d 382, 386 
 
 (1979) • Eor a more complete discussion of Illinois drainage law, see 
 IHinois Farm Drainage Law, University of Illinois College of 
 Agriculture, Cooperative Extension Service Circular 751 (1979). 
 
162. See Edwards v. Haeger, 180 111. 99, 54 N.E. 176 (1899). See also Mann, 
 Ellis, Krausz, supra note 142, at 1 30—1 35 - 
 
 163. Edwards v. Haeger, 180 HI. 99, 54 N.E. 176 (1899). 
 
 164. See Behrens v. Scharringhausen, 22 111. App. 2d 326, 161 N.E. 2d 44 
 (1959). 
 
 165. Wahle v. Reinback, 76 111. 322 (1875); Mann, Ellis, Krausz supra note 
 142, at 133, and cases cited in n.19. Illinois environmental 
 protection laws now govern the pollution of water sources. See infra 
 text accompanying notes 210-216. 
 
 166. R. Stickney, Principles of Warmwater Aquaculture 61 (1979). 
 
 167. 111. Rev. Stat. ch. 19, § 53 (1981). 
 
 168. Id. § 54. 
 
 169. Id. 
 
 170. Id. ch. 105, § 465. 
 
 171. Id. § 465a. 
 
 172. Id. § 468k. 
 
 173. Telephone conversation with Thomas Johnson, Fish and Wildlife Re- 
 sources, Illinois Department of Conservation, April 1, 1982. Telephone 
 conversation with Bruce Barker, Chief, Bureau of Program Development, 
 Division of Water Resources, Department of Transportation, March 3, 
 1982. 
 
 174. Telephone conversation with Barker, supra . 
 175- Id. 
 
 176. 111. Rev. Stat. ch. 19, § 69 (1981). 
 
 177. Stickney, supra note 166, at 27, 58. 
 
 178. Lee, supra note 139, at 66. 
 
179. HI. Rev. Stat. ch. 19, § 70 (1981); 33 U.S.C. § 1344 (1976). 
 
 180. See G-. Bowden, Coastal Aquaculture Law and Policy: A Case Study of 
 California, ch. 2 (Bureaucracy and Administration) and passim (1981), 
 for a description of the problems caused "by multiple permit 
 requirements. 
 
 181. 33 U.S.C. § 1344 (1976). 
 
 182. "... one expert has observed that 'a navigable river is any river 
 with enough water in it to float a Supreme Court opinion. ' " United 
 States v. Kaiser Aetna, 408 F. Supp. 42, 49 (D. Hawaii 1976), rev'd in 
 part 584 F. 2d 378 (9th Cir. 1978), rev'd 444 U.S. 164 (1979), quoting 
 C. Meyers and A. Tarlock, Water Resouce Management 240 (1971). 
 
 183. 33 C.F.R. 6 323. 2(n) (1981). 
 
 184. U.S. Pish and Wildlife Service, Aquaculture in the United States: Reg- 
 ulatory Constraints (submitted by Aspen Research and Information 
 Center) Part II, § 2.2.3 (1981) [hereinafter cited as Regulatory 
 Constraints]. See id. Preface for a list of 5 additional research 
 reports that survey federal and state regulatory involvement with 
 aquaculture. 
 
 185. 111. Rev. Stat. ch. 19, § 70 (1981). The Department usually issues 
 permits pursuant to § 70. Section 65 makes it illegal to make any fill 
 or deposit or build any kind of structure without a permit in "any of 
 the public bodies of water within the State of Illinois." Any permit 
 required under § 65 would also meet the requirements of § 70. 
 Telephone conversation with Paul Mauer, Bureau of Resource Management, 
 Division of Water Resources, Department of Transportation, April 9, 
 1982. 
 
186. Illinois Department of Transportation, Draft Rules for Construction in 
 Rivers, Lakes, and Streams, § 806.030 (1981) [hereinafter cited as Part 
 806 J . The Department of Transportation has no formal rules on con- 
 struction in rivers, lakes, and streams. The draft rules reflect the 
 policies and procedures of the Department. Section 806.020 defines 
 "construction" as "the erection or alteration of any building or 
 structure; the excavation, filling, or grading of any land surface; the 
 installation of any utility; the modification of any channel; the 
 storage of material; or any activity which would change the conveyance 
 or storage capacity of a floodway." 
 
 187. 33 C.P.R. § 320.1 et seq ., § 323-1 et seq ., § 324.1 " et seq . (1981). 
 
 188. 33 U.S.C. § 1344(h)(1) (1976). 
 
 189. 40 C.P.R. §§ 230.1-230.80 (1981). 
 
 190. Id. § 230.10(a). 
 
 191. Id. § 230.10(a)(2). 
 
 192. Id. §§ 231.1-231.8. 
 
 193. 111. Rev. Stat. ch. 19, §§ 52-78 (1981). 
 194- Part 806, supra note 186. 
 
 195. Id. § 806.040(a). 
 
 196. Id. § 806.040(b). 
 
 197. Id. 
 
 198. Id. § 806.060. 
 
 199. Id. 
 
 200. Id. § 806.070. 
 201 . Id. § 806.090. 
 202. Id. § 806.080(a). 
 
203. Telephone conversation with Paul Mauer, Bureau of Resource Management, 
 Division of Water Resources, Department of Transportation, April 8, 
 1982. 
 
 204. Part 806, supra note 186, at § 806.080(a)(3)(i)(2) . 
 
 205. Id. § 806.120. 
 
 206. Id. 
 
 207. Telephone conversation with Dennis Kennedy, Division of Resource 
 Management, Illinois Department of Transportation, April 27, 1982. 
 
 208. Part 806, supra note 186, at § 806.130. 
 
 209. Telephone conversation with Dennis Kennedy, Division of Resource 
 Management, Illinois Department of Transportation, April 27, 1982. 
 
 210. 33 U.S.C. § 1344(a)(1) (1976). 
 
 211. 5 111. Admin. Reg. 7895 (1981), § 395.401(a). 
 
 212. 33 U.S.C. § 1344(a)(1) (1976). 
 
 213* Illinois Pollution Control Board Rules and Regulations, Chapter 3: 
 Water Pollution. 
 
 214. 5 111. Admin. Reg. 7895 (1981), § 395.401(a). 
 
 215. Id. 
 
 216. Id. § 395.401(h). 
 
 217. 16 U.S.C. § 661-664 (1976). 
 
 218. Id. § 662(a). The U.S. Pish and Wildlife Service also must be notified 
 of an application and has the authority to make comments under § 404(m) 
 of the Clean Water Act, 33 U.S.C. $ 1344(m) (1976). 
 
 219. 22 C.F.R. § 325.2(d) (1981). 
 
 220. Regulatory Constraints, supra note 184, Part II, § 2.2.1. 
 221 . Id. 
 
222. The Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § § 
 1201-1238 (Supp. Ill 1979); The Surface Coal Mining Land Conservation 
 and Reclamation Act, 111. Rev. Stat. ch. 96-1/2, §§ 7901.01-7909.09 
 (1981) . 
 
 223 • M. Leary, Procedures for the Development of Fisheries Production on 
 Surface Mined Lands (HI. Dep't. of Conservation, 1980). 
 
 224. Regulatory Constraints, supra note 184, Part I, § 2.2.4. 
 
 225. 21 U.S.C. § 348(c)(3)(A) (1976). 
 
 226. Regulatory Constraints, supra note 184, Part I, § 3»3«1.4. 
 
 227. 33 U.S.C. §§ 1251-1376 (1976). 
 
 228. Id. § 1342. 
 
 229. Id. § 1328. 
 
 230. Id. 
 
 231. Id. § 1342(d). 
 
 232. Illinois Pollution Control Board Rules and Regulations, Chapter 5: 
 Livestock Waste Regulations § 301 [hereinafter cited as Chapter 5] • 
 
 233« Id. The regulation further states that normative species of fish are 
 as defined in Special Publication No. 6 of the American Fisheries 
 Society, entitled "A List of the Common and Scientific Names of Fishes 
 from the United States and Canada." Carp ( Cyprinum carpio ) , goldfish 
 ( Carassius auratus ) , and "brown trout ( Sal mo trutta ) are considered 
 native species for the purpose of this regulation. 
 
 234. Gorden and Westgren, supra note 1, at v. 
 
 235. Id. at 36. 
 
236. U.S. EPA regulations define the aquaculture facilities that require an 
 NPDES permit less stringently. These U.S. EPA regulations would govern 
 in a state without an authorized state NPDES permitting system. 
 Federal regulations do not require an NPDES permit for facilities 
 holding warm water fish species (including catfish) where (l) discharge 
 occurs on fewer than 30 days per year or (2) closed ponds discharge 
 only in periods of excess runoff, or (3) the facility produces less 
 than 45,454 harvest weight kilograms (approximately 100,000 pounds) of 
 fish per year. 40 C.P.R. § 122, Appendix C (1981). U.S. EPA 
 regulations impose a requirement for an NPDES permit for facilities 
 that produce less than 20,000 pounds of fish per year only for cold 
 water fish species (e.g., trout and salmon). Id. An NPDES permit is 
 also required for cold water fish facilities that discharge 30 or more 
 days per year or feed 2272 or more kilograms of food during the 
 calendar month of maximum feeding. Id. 
 
 237. Id. § 122.55(c)(1). "Director" is defined in § 122.3. 
 
 238. Id. § 122.55(c)(1). 
 
 239- Case-by-case designations are authorized for animal feeding operation 
 "not falling within Rule 202 , " Chapter 5 , supra note 232 , § 203 , hut 
 Rule 202 applies to livestock operations, not fish facilities. Id. 
 § 202. 
 
 240. Id. § 204(c); Illinois Pollution Control Board Rules and Regulations 
 Chapter 3: Water Pollution, § 902(h) [hereinafter cited as Chapter 3«] 
 
 241 . Chapter 5, supra note 232, § 207(a); Chapter 3, supra note 240, 
 § 902(g)(1). 
 
242. Chapter 3, supra note 240, § 902(g)(2). 
 
 243. Chapter 5, supra note 232, § 204(a). 
 
 244. Chapter 3, supra note 240, § 903- 
 
 245. Id. § 904(a). 
 
 246. Id. See also § 902(j)(2). 
 
 247. Id. 
 
 248. Id. § 906(a)(2). 
 
 249. Id. § 906(a)(3) and (4), § 908(d). 
 
 250. Id. § 906(b). 
 
 251. Id. § 909(a)(1). 
 
 252. Id. § 910(a). 
 253- Id. § 910(c). 
 
 254. Id. § 902(j)(3); 33 U.S.C. § 1342(d)(2) (Supp. IV 1980). 
 
 255- 33 U.S.C. $ 1342(d)(2) (Supp. IV 1980). 
 
 256. Id. 
 
 257. Chapter 3, supra note 240, § 910(f); Chapter 5, supra note 232, § 
 209(a). 
 
 258. Chapter 3, supra note 240, § 410(a). 
 
 259. Id. 6 910(f). 
 
 260. Chapter 3, supra note 240, Part IX , Subpart B, §§ 951-973- 
 
 261. Id. §§ 951(a), 952(a), 953(a). 
 
 262. Id. § 104. 
 
 263. Id. 
 
 264. Id. 
 
 265. Id. §§ 952(c), 953(b). 
 
 266. Id. § 960. 
 
267. Id. § 957(a)(1), (2), (4). 
 
 268. Id. §> 962. 
 
 269. Id. § 964. 
 
 270. Id. § 963(a). 
 
 271. Id. § 963(b). 
 
 272. Lee, supra note 139, at 142. 
 
 273. Id. at 87-88. 
 
 274. 7 U.S.C. §§ 136-136y (1976). 
 275- Id. § 136d. 
 
 276. Id. § 136b. 
 
 277. Id. § 136e. 
 
 278. Id. § 136c. 
 
 279. Id. § 136f. 
 
 280. Id. § 136v(b). 
 
 281. Id. § 136v(a). 
 
 282. HI. Rev. Stat. ch. 5, §§ 801-828 (1981). 
 
 283. Id. § 803- 
 
 284. Id. § 803(1). 
 
 285. Id. § 803(3). The Department of Public Health enforces provisions of 
 the Act relating to structural pest pesticides. Id. § 803(2). Struc- 
 tural pests attack buildings and other items specified at id* § 
 804(37). 
 
 286. Id. § 809. 
 
 287. 5 111. Admin. Reg. 732 (1981), § 250.120(e). 
 
288. A pesticide is defined as any substance intended for "preventing, des- 
 troying, repelling, or mitigating any pest," or any substance intended 
 for use as "a plant regulator, defoliant or desiccant." 111. Rev. 
 Stat. ch. 5, § 804(29) (1981). 
 
 289. Id. § 806(1). 
 
 290. 5 111. Admin. Reg. 732 (1981), § 250.30. 
 
 291. 7 U.S.C. § 136v(c)(2) (Supp. IV 1980). 
 
 292. Under Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15,623 (1970), 
 responsibility for setting tolerances for "pesticide chemicals" was 
 transferred to the Environmental Protection Agency. The term "pesti- 
 cide" does not include any article that is a "new animal drug." 7 
 U.S.C. § 136(h) (Supp. IV 1980). See infra note 309. 
 
 293. 7 U.S.C. § 136v(c)(3)(Supp. IV 1980). 
 
 294. 21 U.S.C. §§ 301-392 (1976 & Supp. IV 1980). If the U.S. EPA 
 determines that state registration is inconsistent with this Act, it 
 may disapprove registration. 7 id. § 136v(c)(3) (Supp. IV 1980). 
 
 295. U.S. Environmental Protection Agency, The Challenge of the Environment 
 28-29 (1972). Tolerances must be established "to the extent necessary 
 to protect the public health." 21 U.S.C. § 346a(b) (1976). 
 
 If a tolerance for a pesticide has not been set, a person seeking 
 registration of the pesticide may request that a tolerance or exemption 
 be set at the time of registration. Id. § 346a(d)(l). The application 
 should contain information as to the safety of the pesticide chemical, 
 results of tests on the amount of residue remaining in the food, and 
 
practicable methods for removing residue that exceeds any proposed 
 tolerance. Id. The Act authorizes the creation of exemptions for 
 substances that cannot "be avoided by good manufacturing practices. Id. 
 § 346. 
 
 296. 21 U.S. C. § 331(a) (1976). 
 
 297. Id. § 342(a)(2)(B). 
 
 298. 7 U.S.C. § 136v(c)(l) (Supp. IV 1980). 
 
 299. 5 111. Admin. Reg. 732 (1981), § 250.50(c). 
 
 300. Id. § 250.50(f). 
 
 301. 7 U.S.C. § 136v(c)(2) (Supp. IV 1980); HI. Rev. Stat, ch 5, 
 § 806(6) (B) (1981). 
 
 302. 5 111. Admin. Reg. 732 (1981), § 250.40(a). 
 
 303. Id. 
 
 304. Id. § 250.60(a), pursuant to 7 U.S.C. § 136p (1976). 
 
 305. 5 111. Admin. Reg. 732 (1981), § 250.60(b). 
 
 306. 111. Rev. Stat. ch. 5, § 803(3) (1981). 
 
 307. See id . § 811, and Rules and Regulations Relating to the Illinois 
 Pesticide Act of 1979, 5 HI. Admin. Reg. 732 (1981), §§ 250.70, 
 250.80, 250.90. 
 
 308. Chapter 3, supra note 240, § 203(h). The permit requirement for 
 pesticide use in "waters affecting public or food processing water 
 supplies" refers to surface waters from which water is withdrawn for 
 human consumption or for processing of food products intended for human 
 consumption. Id. § 104. The IEPA's Division of Public Water Supplies 
 maintains a list of waters affecting public water supplies in order to 
 
aid applicators in determining their responsibilities. Id. 
 § 203(h) (iv). The IEPA's "rule of thumb" is that a permit will be 
 required if a pesticide is applied within twenty miles upstream of a 
 public water supply. (Telephone conversation with A. G. Taylor, 
 Agriculture Adviser, Illinois Environmental Protection Agency, March 
 1982.) Permits will be issued by the IEPA if the pesticide application 
 does not violate any provision of the Illinois Environmental Protection 
 Act or any rules and regulations promulgated pursuant to the Act. 
 Chapter 3, supra note 240, § 203(h) (iv). 
 
 309. "New animal drug" means any drug intended for use for animals other 
 than man, including any drug intended for use in animal feed, with 
 certain defined exceptions. 21 U.S.C. § 32l(w) (1976). The term 
 "pesticide" does not include any article that is a "new animal drug." 
 7 U.S.C. § 136(u) (Supp. IV 1980). Thus, all pesticides also falling 
 into the category of animal drugs are defined solely as new animal 
 drugs and are subject only to FDA approval. 
 
 310. 21 U.S.C. § 360b (1976). 
 
 311. Lee, supra note 139, at 123, 129- 
 
 312. Id. at 123. 
 
 313. 21 U.S.C. § 360b(a)(2) (1976). 
 3H. Id. § 360b(i). 
 
 315. Regulatory Constraints, supra note 184, Part II, § 3, 2. 2. 
 
 316. Id. 
 
 317. Id. 
 
 318. Id. 
 
519- Associate Director, Fishery Resources, Pish and Wildlife Service, U.S. 
 Department of the Interior, Program Manager's Policy and Strategy 
 Statement Regarding Aquaculture 4 (Nov. 5, 1981). 
 
 320. 111. Rev. Stat. ch. 8, §§ 149-167 (1981). 
 
 321. Id. § 165. 
 
 322. State of Illinois Department of Agriculture, Division of Meat, Poultry 
 and Livestock Inspection, Regulations Relating to the Disposal of Dead 
 Animals, Regulation XI, amended effective 1972. 
 
 323. Id. 
 
 324. Id. 
 
 325- 111. Rev. Stat. ch. 8, § 165 (1981). 
 
 326. Telephone conversation with A. G. Taylor, Agriculture Advisor, 111. 
 Environmental Protection Agency, Mar. 3, 1982. 
 
 327. HI. Rev. Stat. ch. 111-1/2, §§ 1001-1051 (1981). 
 
 328. Id. § 1011(a)(1). 
 
 329. Id. § 1012(a). 
 
 330. Id. S§ 1031, 1032, 1033- 
 
 331 . For a case involving damage to fish, albeit not in an aquaculture 
 operation, see Environmental Protection Agency v. Weide, 111. PCB 
 75-353, 23 Opinions 211 (1976). 
 
 332. ELI. Rev. Stat. ch. 56, § 2.1 (1981). 
 
 333* See EPA v. Weide, supra note 331. 
 
 334. HI. Rev. Stat. ch. 5, §§ 801-828 (1981). 
 
 335. Id. § 810(5). 
 
336. Id. § 810(3); Rules and Regulations Relating to the Illinois Pesticide 
 Act of 1979, 5 111; Admin. Reg. 732 (1981), S 250.130(a)(1). 
 
 337. 111. Rev. Stat. ch. 111-1/2, § 1045 (1981). See also City of Monmouth 
 v. Pollution Control Board, 313 N.E.2d 161, 163, 57 HI. 2d 482 
 (1974). 
 
 338. Fenwick v. Bluebird Coal Co., 140 N.E.2d 129, 131, 12 HI. App. 2d 464 
 (1957). 
 
 339. For a brief discussion of these remedies with regard to pesticide 
 application, see 2 N. Harl, Agricultural Law § 15 .01(3) (a) (1980). 
 
 340. Regulatory Constraints, supra note 184, Part I, § 4.2. 
 
 341. Id. § 4.2.1.5. 
 
 342. Id. See, e.g ., Me. Rev. Stat. Ann. tit. 38, § 413-414-A (1978), 
 establishing waste discharge standards for various water uses. 
 
 343. Regulatory Constraints, supra note 184, Part I, § 4.3.6. 
 
 344. id. 8 4.3-9. 
 
 345. See, e.g ., Or. Rev. Stat. § 506.109, § 496.435 (1981). 
 
 346. Regulatory Constraints, supra note 184, Part I, § 4.3.7. 
 
 347. Fla. Stat. Ann. § 253-68 (West 1975). 
 
 348. Regulatory Constraints, supra note 184, Part I, § 4»3.2. 
 
 349. Id. § 4.3.3. 
 
 350. Hawaii Rev. Stat. § 205A-22(3)(B)(viii) (1976). 
 
 351. Regulatory Constraints, supra note 184, Part I, § 4. 3*3. 
 
 352. Id. § 4.3.7. 
 353- Id. 5 4.3.2. 
 
354. Id. 
 
 355- A Directory of State Regulations Affecting the Development and 
 
 Operation of Commercial Aquaculture , Vol. 1: 8 Principal States, Vol. 
 2: 24 Supporting States. The directory was completed in 1981, but has 
 not been published. A duplicated copy may be obtained upon request 
 from Dr. Jim Weaver, Fish and Wildlife Service, (304) 725-8461. 
 
 356. G. Bowden, Coastal Aquaculture Law and Policy 29 (1981). This volume 
 focuses on California law, but many of its generalizations apply to 
 Illinois as well. 
 
 357. Persons seeking a copy of the national aquaculture development plan 
 should contact: Aquaculture Coordinator, U.S. Department of 
 Agriculture, Office of the Secretary, Room 44A, Administration 
 Building, Washington, D.C. 20250. Telephone (202) 447-7223- This 
 office will supply a copy of the plan or refer interested persons to 
 the proper office. 
 
 358. National Aquaculture Act of 1980, Pub. L. No. 96-362, § 4(b), 94 Stat. 
 1198 (1080). 
 
 359- Id. § 5(c). 
 
 360. Id. 8 5(a)(1) and (2). 
 
 361. See, e.g ., Pla. Stat. Ann. § 253-68 (West 1975). Florida provides for 
 leasing of both submerged lands and vertical water columns. 
 
 362. Regulatory Constraints, supra note 184, Part II, § 2.2.4. 
 
 Illinois Department of Transportation, Part 806, Rules for Construction 
 in Rivers, Lakes, and Streams, § 806.130 (1981). 
 
 364. Id. § 806.120. 
 
 365. 40 C.F.R. § 122, Appendix C (1981). 
 
 366. Id. § 122.55(c). 
 
367. Chapter 3, supra note 240, Part IX, Subpart B, §§ 951-973. 
 
 368. Regulatory Constraints, supra note 184, Part II, § 3*4. 
 
 369. 111. Rev. Stat. ch. 5, § 810(3) (1981). 
 
 370. Id. ch 56, § 2.1. See, e.g. , EPA v. Weide, 111. PCB 75-353, 230 
 Opinions 211 (1976). 
 
 371 . Holmstrom, Problems of Regulatory Inefficiency and Issues to "be 
 Considered in Reducing Them , Technical Supplement #15, Department of 
 Planning and Economic Development, State of Hawaii (Jan. 1980). The 
 information summarized in the text is drawn from a discussion of 
 Holmstrom 1 s study in Regulatory Constraints, supra note 184, Part II, 
 § 1.4. 
 
 372. Regulatory Constraints, supra note 184, Part II, § 1.4. 
 373- Id. 
 
 374. Id. Part I, $ 4.4.1.5; Part II, $ 1.4. 
 
 375. Id. Part II, $ 1.4. 
 
 376. Id. Part I, § 4-4.2.5; Part II, § 1.4. 
 
 377. Id. Part I, § 4.4.2.5. 
 
gfcJE 
 
 EPORT DOCUMENTATION 
 PAGE 
 
 x. report no. 
 
 Docmument 83/05 
 
 J. RaciptofiC* • AccaaaJon No. 
 
 TKIa and Subtltla 
 
 The Legal and Regulatory Environment for Illinois 
 Aquaculture 
 
 ft. Report Data 
 
 Authorta) 
 
 ft. Performing Organization Rapt. No. 
 
 Margaret Grossman, Randy Westgren, Dale Wills, Sherri Knuth 
 
 Performing Org enliatlon Nama and Addraaa 
 
 University of Illinois at Urbana-Champaign 
 Urbana, IL 61801 
 
 10. Profact/Taak/Worfc Unit No. 
 
 11. Contract(C) or Crant(O) No. 
 (O 
 
 m 
 
 Sponsoring Organization Nama and Addraaa 
 
 Illinois Department of Energy and Natural Resources 
 325 W. Adams 
 Springfield, IL 62706 
 
 13. Typo of Report L Parlod Covarad 
 
 14. 
 
 . Supplamantary Note* 
 
 Abatraet (Umlt: 200 worda) 
 
 Aquaculture is an expanding source of food around the world. F 
 practiced for over 4,000 years in China and has been an establ i 
 many countries for centuries. Aquaculture in Illinois is less 
 other states. Aside from any economic obstacles to the growth 
 industry in Illinois, there are many institutional constraints 
 legal and commercial environments for aquaculture are not well 
 present risks to persons interested in aquaculture. Accordingl 
 the existing federal and state laws and regulations that affect 
 in Illinois. In addition the report proposes changes in the II 
 unduly restrict the development of the industry. 
 
 ish culture has been 
 shed food source in 
 developed than in many 
 of the aquaculture 
 to development. The 
 described and may 
 y, this report reviews 
 aquaculture industry 
 linois enactments that 
 
 I Document Analyaia a. Descriptors 
 
 Aquaculture, fish farming 
 
 b. idantiriara/opan-Endad Tarma Aquaculture, Regulations, Illinois 
 
 C COSATI Field/Group 
 
 II Availability Stataman: 
 
 estrictions 
 
 19. Security Claaa CThlt Report) 
 
 2a Security Claaa (Thia Paga) 
 
 21. No. of Page 
 
 104 
 
 22. Prico 
 
 iaANSI-339.18) 
 
 OPTIONAL FORM 272 (4-77) 
 (Formerly NTIS-35) 
 Department of Commerce 
 
HECKMAN l— I 
 
 BINDERY INC. |§| 
 
 DEC 96 
 
 Bound -To-Ple^ N; MANCHESTER, 
 

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