Gavin Howe
The term common law for aquatics may refer to the legal protections in place for aquatic animals, or the laws and regulations concerning water usage and conservation. In the context of aquatic animals, common law often fails to protect them due to definitional limitations and exclusions in federal and state legislation. For example, most aquatic animals are excluded from federal animal protection statutes because they are not included in the definition of animal, and those used for food or fiber are also exempt. At the state level, anti-cruelty laws and protective statutes may exempt animals used for research, food, hunting, or fishing. In terms of water law and conservation, governments worldwide are attempting to protect water quality through various acts and directives, such as the United States' Clean Water Act and the European Union's Water Framework Directive. These laws aim to address water pollution, water quantity protection, and conservation, recognizing that water is a matter of national security.
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What You'll Learn
Aquatic animals are excluded from federal protection statutes
The Animal Welfare Act, a federal statute, specifically excludes from protection all animals "intended for use as food or fiber". This means that aquatic animals used for food are not covered by the Act. Additionally, most aquatic animals are not included in the definition of "animal" under the statute, as they are categorized as cold-blooded and invertebrates. This exclusion of aquatic animals from the definition of "animal" in federal statutes results in an intentional or unintentional unwillingness to acknowledge that they are animals, despite scientific and biological certainty. As a result, protective provisions of the relevant laws that apply to animals do not extend to aquatic animals.
At the state level, animal issues are generally regulated by anti-cruelty laws or other protective statutes that seek to prevent harm, abuse, and neglect. However, these laws typically provide exemptions for animals used in research, food, hunting, or fishing, as well as for "generally accepted animal husbandry practices". These exemptions create a challenge for advocates of aquatic animal protection, as it is difficult to find statutory protections that apply to these animals.
While some aquatic animals do receive significant protection under certain laws, such as the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA), these protections are often limited to specific species or conservation purposes. The ESA, for example, focuses on preventing extinction and recovering species rather than providing ongoing protection. Additionally, the process of listing and recovering species under the ESA has been contentious and delayed, impacting the timely protection of aquatic species.
The exclusion of aquatic animals from federal protection statutes has resulted in regulatory regimes failing to provide these animals with the protection they deserve. This unequal treatment of aquatic animals compared to terrestrial animals highlights the need for a better approach that explicitly acknowledges and provides protections for aquatic animals.
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The Clean Water Act makes it unlawful to discharge pollutants into navigable waters
The Clean Water Act (CWA) is the primary Federal statute regulating the protection of the nation's water. The CWA makes it unlawful to discharge pollutants from a point source into navigable waters without a permit. This includes any pollutant that is discharged from pipes or man-made ditches. Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge are exempt from the permit requirement. However, industrial, municipal, and other facilities must obtain permits if their discharges go directly into surface waters. The Environmental Protection Agency (EPA) is responsible for implementing pollution control programs and setting wastewater standards for industries under the CWA.
The CWA aims to prevent, reduce, and eliminate pollution in the nation's waters to restore and maintain their chemical, physical, and biological integrity. It also addresses nonpoint source pollution by funding the construction of sewage treatment plants. The EPA regulates waste streams from offshore oil and gas activities and has established the National Pollutant Discharge Elimination System (NPDES) to control discharges. The NPDES permit program sets effluent limitations and standards for direct dischargers, such as OCS operators, and pretreatment standards for indirect dischargers.
The Oil Pollution Prevention regulation under the CWA sets requirements for facilities to prevent oil spills from reaching navigable waters and adjoining shorelines. This regulation applies to facilities that drill, produce, store, or use oil and oil products. The EPA's SPCC Plan requires these facilities to implement Spill Prevention, Control, and Countermeasure Plans to contain oil discharges. The Oil Pollution Act of 1990 (OPA 90) amended the CWA, increasing penalties for noncompliance and broadening the federal government's response and enforcement authorities.
Despite the CWA's efforts, regulatory regimes often fail to provide adequate protection for aquatic animals. Aquatic animals, including finfish, amphibians, marine mammals, crustaceans, and reptiles, are "doubly" excluded from federal animal protection statutes. This is because they are not included in the definition of "animal", and those used for food or fibre are specifically exempted. While states have anti-cruelty laws and protective statutes, they often exclude aquatic animals or do not define the term "animal", making it challenging to find statutory protections for these species.
Overall, the CWA plays a crucial role in protecting the nation's waters and reducing pollution, but more comprehensive measures are needed to ensure the welfare and protection of aquatic animals.
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The definition of 'animal' often excludes aquatic animals
An aquatic animal is any animal, vertebrate or invertebrate, that lives in a body of water for most of its life. They are adapted to their surroundings and depend on water for nutrition and survival. They conduct gas exchange in water by extracting dissolved oxygen via gills, skin or enteral mucosae.
However, the definition of 'animal' often excludes aquatic animals, and this has significant implications for their protection and welfare. The exclusion is twofold: first, aquatic animals are often not included within the definition of 'animal' in legislation; and second, those used for food or fibre are typically exempted from animal protection laws. This means that aquatic animals are often "doubly" excluded from federal animal protection statutes.
At the state level, animal welfare is generally regulated by anti-cruelty laws or other protective statutes, which may also set minimum welfare standards. However, these laws often exempt animals used for research, food, hunting or fishing, as well as those used in "generally accepted animal husbandry practices". This means that certain behaviours or practices, no matter how egregious, would not constitute cruelty.
The failure to include aquatic animals within the definition of 'animal' in legislation has resulted in a lack of protection for these creatures. This is despite the fact that aquatic animals are subject to numerous threats, including overfishing, destructive fishing, water pollution, acidification, climate change, and competition from invasive species.
Only two states in the US, Oregon and Oklahoma, explicitly include fish in their statutory definition of 'animal'. This definitional limitation makes it difficult for advocates to find any statutory protections that might apply to aquatic animals. As a result, aquatic animals are often treated differently and less favourably than terrestrial animals.
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The Aquatic Animal Law Initiative
Aquatic animals, including fish, amphibians, marine mammals, crustaceans, reptiles, molluscs, aquatic birds, and insects, as well as starfish, sponges, and coral, are often excluded from legal and regulatory frameworks that protect other non-human animals. This exclusion occurs at both the federal and state levels. At the federal level, aquatic animals are often not included in the definition of "animal", and those used for food or fibre are typically exempted from protection. At the state level, anti-cruelty laws and protective statutes may exempt animals used for research, food, hunting, fishing, or "generally accepted animal husbandry practices."
The AALI aims to address these issues through legal analysis and law reform efforts. Some specific areas of focus include the exclusion of fish from regulatory protection within the Animal Welfare Act and the rulemaking process under the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which aims to address the increasing use of aquatic species in testing and promote alternatives to animal testing. The initiative also works on class action lawsuits, such as challenging the use of mini tanks for betta fish, and provides recommendations for protected areas and endangered species protection. Additionally, the AALI compiles and summarises scientific research relating to the capacities and needs of aquatic animals, conducts surveys on legal regulations related to the taking and killing of turtles, and summarises protections for fishes under anti-cruelty laws.
The initiative also represents clients through the Animal Law Clinic, including local and international individuals and organisations, on a range of aquatic animal law issues. This includes providing legal memoranda on the regulation of aquaculture in the U.S. and Kenya. The AALI also promotes public education about the cognitive, emotional, and physiological capacities of aquatic animals to raise awareness and understanding of their welfare, environmental, health, and safety issues.
Overall, the Aquatic Animal Law Initiative is a crucial effort to address the lack of legal protection for aquatic animals and to ensure their welfare and the sustainability of aquatic ecosystems.
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Water law and the protection of aquatic ecosystems
Water law is a complex and evolving area of environmental law that focuses on the protection and sustainable management of water resources, including aquatic ecosystems. It involves a range of legal and policy instruments aimed at safeguarding water quality, ensuring the equitable and efficient use of water, and preserving the health of aquatic habitats and the organisms that depend on them.
One key aspect of water law is the recognition that water is a precious and limited resource. As water quality deteriorates, less becomes available for human use, and it becomes less able to support native biota. This scarcity increases water's market value and underscores the importance of effective water law and policy in ensuring its protection and sustainable management.
Various legislative and regulatory frameworks have been established to protect water resources and aquatic ecosystems. For instance, the United States' Clean Water Act, the European Union's Water Framework Directive, India's system of Water Quality Standards, and China's Law on Prevention and Control of Water Pollution all demonstrate governmental efforts to safeguard water quality. These laws often set standards for water pollution control, such as the US Clean Water Act, which prohibits the discharge of pollutants into navigable waters without a permit.
However, water law has been criticized for failing to adequately protect aquatic animals. This failure stems from the exclusion of aquatic animals, such as finfish, amphibians, and marine mammals, from the statutory definition of "animal" in most legislation. This exclusion means that aquatic animals are often not afforded the same protections as terrestrial animals, and their welfare is not sufficiently regulated in industries like aquaculture.
To address these shortcomings, some states, like Oregon and Oklahoma, have explicitly included fish in their definition of "animal." Additionally, social research has shed light on the gender dimensions of water management, leading to the recognition of gender as a priority for improving water management by the UN Commission for Environment and Development in 1992. Furthermore, environmental economists have sought to estimate the 'nonuse' values of waters and the trade-offs among competing environmental objectives.
In conclusion, water law plays a crucial role in protecting aquatic ecosystems by safeguarding water quality and ensuring sustainable water management. However, ongoing challenges include the need for better inclusion and protection of aquatic animals and continued innovation in addressing 21st-century water quality issues.
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Frequently asked questions
Common law is a legal system that originated in England and is based on judicial precedents set by judges, rather than on statutory law.
Aquatic animals include fish, amphibians, marine mammals, crustaceans, reptiles, molluscs, aquatic birds, aquatic insects, and even animals like starfish and coral.
Aquatic animal law refers to the legal protection of aquatic animals, which are often left out of regulatory frameworks that protect other non-human animals.
Some examples of aquatic animal law in practice include the regulation of aquaculture, the protection of endangered species, and the prevention of cruelty and neglect towards aquatic animals.
