7 nonprofit organizations seek court review of EPA permit for ‘fish farm’ off Sarasota County coast

Suncoast Waterkeeper part of the group

The nonprofit Center for Food Safety and six other organizations have filed a petition asking a federal court to review the U.S. Environmental Protection Agency’s issuance this year of a National Pollutant Discharge Elimination System (NPDES) permit for what would be the first industrial aquaculture facility — or, “fish farm — in federal waters in the Gulf of Mexico.

The Velella Epsilon project, proposed by a Hawaii-based company called Ocean Era — formerly Kampachi Farms — would be about 45 miles west of Longboat Pass and the Sarasota County coastline.

The Center for Food Safety announced the action in an Oct. 12 news release.

The other members of the coalition are the Food & Water Watch, the Recirculating Farms Coalition, the Sierra Club, the Healthy Gulf, the Suncoast Waterkeeper — which is based in Sarasota — and the Tampa Bay Waterkeeper.

Filed on Sept. 27 in the U.S. District Court of Appeals for the District of Columbia Circuit, the petition contends that the Velella Epsilon project will result in pollution, which will negatively affect “waters used by Petitioners’ members for recreation and other purposes …”

They point out in their petition that the Environmental Protection Agency (EPA) did not conduct “a full, legally-compliant environmental review of those impacts.” In reviewing the Velella Epsilon project, the EPA conducted only an Environmental Assessment. A far more in-depth review is called an Environmental Impact Statement.

The nonprofit groups have argued that the EPA violated federal law “by failing to sufficiently evaluate the dangers of the wastewater the facility will release into vulnerable Gulf ecosystems, such as phosphorus and nitrogen,” which have been documented as food for the algae that causes red tide, Karenia brevis. Further, they have pointed to concerns about the release of antibiotics into the Gulf, as well as worries about the potential for escaped fish interbreeding with wild fish, and “[p]athogens, and parasites” emanating from the net-pen, in which 20,000 almaco jack fish are to be enclosed for about 12 months.

In their September petition, the nonprofits cited provisions of the U.S. Clean Water Act and the Administrative Procedure Act as the basis for their action.

The EPA Environmental Assessment of the project explained that Ocean Era would use juvenile fish “sourced from brood stock that are located at Mote Aquaculture Research Park and were caught in the Gulf near Madeira Beach, Florida. … Following harvest, cultured fish would be landed in Florida and sold to federally-licensed dealers in accordance with state and federal laws.”

The net-pen that would contain the almaco jack, which are also called longfin yellowtail, would be a copper alloy mesh, submersible circular cage with a diameter of 17 meters and a height of 7 meters, according to the EPA. “The mooring line for the proposed project will be attached to a floating cage that will rotate in the prevailing current direction,” an EPA fact sheet said. “The ocean currents will maintain the mooring rope and chain under tension during most times of operation,” the fact sheet noted.

The estimated final fish size is expected to be about 4.4 pounds, the fact sheet pointed out, “meaning the total maximum harvest weight is estimated to be approximately 88,000 [pounds].”

When the EPA issued a draft permit for Velella Epsilon in 2019, the Center for Food Safety and 12 other environmental organizations sent a letter to the EPA that called such net-pens “essentially floating feedlots in open water.”

The EPA explained in its fact sheet that Ocean Era needed the National Pollutant Discharge Elimination System (NPDES) permit because “Aquaculture facilities produce and discharge wastes (excess fish feed and fecal material) that contain pollutants. … Accordingly, marine aquaculture operations are considered point sources that discharge industrial wastewater.”

In the Oct. 12 news release, Meredith Stevenson, staff attorney for the Center for Food Safety, said, “EPA never should have issued a permit for Velella Epsilon. Its hasty environmental assessment overlooked the potential dangers of industrial aquaculture, including fish escapes and harms to endangered species. We should be protecting our ocean ecosystems and coastal communities, not approving industrial aquaculture facilities that irreparably harm them,” she added in the release.

The lead counsel for the coalition is Elizabeth L. Lewis of Eubanks & Associates PLLC in Washington, D.C.

Earlier challenges to the project

In October 2020, nine environmental and/or public interest organizations filed an appeal with the federal Environmental Appeals Board, seeking to overturn the EPA Region 4 staff’s issuance of the NPDES permit awarded to Ocean Era. (Region 4 is based in Atlanta.) The Suncoast Waterkeeper also was part of that group.

The nonprofits maintained that the EPA had “consistently failed to evaluate the totality of the project it authorized under the National Pollution Discharge Elimination System Permit [NPDES] …”

They also contended in a brief that the EPA assessed only some of the pollutants that Velella Epsilon would be expected to discharge, and they argued that the agency had failed to assess others “in accordance with the mandatory factors required by the [U.S. Clean Water Act’s] implementing regulations.”

On Feb. 17, 2020, the Environmental Appeals Board did ask the Region 4 staff to provide a status report on Velella Epsilon, in light of an Executive Order that the Biden Administration had issued early after President Biden was sworn into office, “directing federal agencies to ‘immediately review’ certain actions taken ‘during the last 4 years’ and to ‘consider suspending, revising, or rescinding’ those actions.”

The Region 4 staff, which handles issues in the Southeastern United States, stood by its issuance of the Velella Epsilon permit. “[B]ecause of the small size of the permitted facility and the short duration of its permitted operation, [the EPA] does not find that this matter raises difficult issues or issues of national significance,” the resulting status report said.

In a brief filed in the case, the EPA also pointed out that the agency had determined that the Ocean Era facility “would not cause a significant threat to human health from [harmful algal blooms] (such as red tide) that would represent an unreasonable degradation of the marine environment. The [EPA] noted that not all algal blooms are harmful because many blooms are beneficial as a major food source for animals in the ocean, and only a small percentage of algae produces powerful toxins that can kill marine species and may directly or indirectly cause illness in people.”

In its final Response to Comments about the Ocean Era project, the EPA’s brief continued, the agency explained that it discussed the results of a National Oceanic and Atmospheric Administration (NOAA) study “which looked generally at measures to mitigate aquaculture’s effects on the marine environment and the link between aquaculture and [harmful algal blooms] and ultimately failed to document a clear effect …”

The Response to Comments said, “NOAA found that only a few studies indicate that effluents from aquaculture may contribute to an occurrence of [harmful algal blooms] in the marine environment. … When effects are found, hydrological conditions or farm management practices may contribute,” the Response to Comments added.

Moreover, on its website, Ocean Era has explained that it “has successfully conducted two state-of-the-art offshore aquaculture trials in Federal waters around Hawaii. These trials tested numerous technologies to take aquaculture ‘over-the-horizon.’”

The Velella Epsilon project, the website added, is “part of a national initiative to increase U.S. aquaculture production …”

Further, the website quoted Neil Anthony Sims, CEO of Ocean Era: “The primary goal of the demonstration project is to help the local communities in the Gulf of Mexico to understand the ancillary benefits that offshore aquaculture can bring to fisheries and to recreational tourism.”

Sims added, “Once the Velella Epsilon has demonstrated the technology and benefits of offshore aquaculture to the local communities, then we will engage them in the discussions about how this industry might move forward. We will also work with the various agencies to identify areas needing further regulation or clarification of agency requirements, or areas where we could eliminate any redundancies. And, we will make our documentation on this process readily available for future aquaculture industry applicants to use as a template.”

In May, as the Environmental Appeals Board case continued, the Board did cite conflicting statements in the EPA’s documentation regarding its staff’s review of the project’s potential impacts.

The board then ordered the EPA staff to clarify that Velella Epsilon would not cause harm to aquatic ecosystems and species in the Gulf of Mexico.

Finally, after conducting oral arguments in the case in November 2021, the Environmental Appeals Board cleared the way for the EPA to re-issue its permit for Velella Epsilon.

In July, Marianne Cufone, an attorney who also is the founder and executive director of the Recirculating Farms Coalition, told The Sarasota News Leader that federal law allowed several months from the issuance of the EPA permit for a legal challenge to be filed.

The Corps of Engineers permit

While leaders of environmental organizations were considering their next potential legal challenge earlier this year, Ocean Era was awaiting a “Section 10” permit that it needs from the U.S. Army Corps of Engineers (USACE) to install Velella Epsilon in the Gulf.

On July 18, David Ruderman, the USACE spokesman at the agency’s Jacksonville District Office, told the News Leader that the permit still was under review.

When the News Leader contacted him this week for another update, Ruderman reported in an Oct. 13 email, “The USACE permit application is still under review,” adding, “and there’s no date certain for making a decision.”