Environmental groups opposing the project considering next legal steps
On June 10, the Region 4 staff of the Environmental Protection Agency (EPA) announced that it had decided to issue the final permit to a Hawaii-based firm, Ocean Era, for a pilot “fish farm” project called Velella Epsilon, which would be located about 45 miles off the Sarasota County coast.
The National Pollutant Discharge Elimination System (NPDES) permit would allow wastewater from the aquaculture facility to flow into the Gulf of Mexico. That permit would be in effect from July 8, 2022 until July 7, 2027, the EPA document shows.
The fact sheet that the EPA released in conjunction with its announcement explains that the Velella Epsilon project will be a “ ‘net-pen’ aquatic animal production facility” with 20,000 fish “reared for approximately 12 months. The estimated fish size is approximately 4.4 pounds …” Factoring in a 90% survival rate, the fact sheet adds, the “total annual harvest weight is estimated to be less than 80,000 [pounds] … The maximum amount of feed is estimated to be 27,268 [pounds per month].”
The fact sheet also points out, “Aquaculture facilities produce and discharge wastes (excess fish feed and fecal material) that contain pollutants, which are defined as including solid waste, biological materials, and industrial waste.” Thus, companies proposing operations such as the Velella Epsilon have to obtain NPDES permits.
The Ocean Era net-pen, made of a copper alloy, would be 17 meters in diameter and 7 meters tall; it would be submerged to a depth of approximately 130 feet. “The cage design is flexible and self-adjusts to suit the constantly changing wave and current conditions,” the fact sheet adds. “When a storm approaches the area,” the fact sheet continues, “the entire cage array can be submerged by using a valve to flood the flotation system with water. A buoy remains on the surface, marking the net-pen’s position and supporting the air hose.”
Following the Region 4 staff’s 2020 announcement that it had approved the permit, environmental nonprofit organizations challenged the decision, filing an appeal with the federal Environmental Appeals Board (EAB). The nonprofits contended that the “EPA violated the law by failing to evaluate the potential dangers of the wastewater that this facility will release, such as contributing to harmful algal blooms (also often known as red tide) and pharmaceutical residues in the ocean and antibiotic resistance in people. By allowing this facility to pollute, the EPA has failed to protect the vulnerable Gulf ecosystem and the communities that rely on it. This needs to stop.”
On May 6, the EAB remanded the decision in part to the Region 4 staff, asking its personnel “to clearly state whether the Region determined that the permitted discharge [from Velella Epsilon] will not cause unreasonable degradation of the marine environment.” The EAB denied review of all of the other issues that the petitioners had raised.
In its ruling, the EAB pointed to two inconsistent statements regarding the EPA permit. One of those said that Velella Epsilon would not result in problems in the Gulf of Mexico, while the other said that “unreasonable degradation” would be unlikely.
A June 8 memorandum from Jeaneanne Gettle, director of the Region 4 Water Division, written for the Ocean Era permit administrative record, pointed out, “EPA is clarifying now that it determined prior to issuance of the permit in question that the authorized discharges will not cause unreasonable degradation of the marine environment.” As reflected in a declaration from Kip Tyler, “the staff permit writer assigned to the Ocean Era permit,” the memo continued, “the use of inconsistent phrasing in describing the determination in the Ocean Discharge Criteria Evaluation (ODCE) was unintentional. Mr. Tyler intended to characterize the finding in the ODCE as a determination that the authorized discharges will not cause unreasonable degradation of the marine environment, in accordance with the applicable legal standard.”
Moreover, the memorandum said, “[T]he same determination using the correct standard was stated numerous times in the Fact Sheet and elsewhere in the administrative record.”
Because that was the only issue to be clarified, as the EAB had directed, the memo added that the Region 4 administrator was issuing the final permit. Any further appeal, the memo explained, “must be brought in the appropriate U.S. Circuit Court of Appeals,” as indicated by federal law.
Such appeals must be filed within 120 days within the issuance of the permit.
Requirements of the permit holder
The permit does require monitoring of a number of factors after the “fish farm” project begins, the EPA fact sheet points out. Among them will be a focus on water quality. Further, the document says, a licensed and accredited veterinarian must attest to the health of the “live aquatic organisms, regardless of life stage,” that will be stocked in the net-pen.
Additionally, Ocean Era would have to report on “the use of drugs, or other chemicals, structural failure or damage to the facility, and spills of feed, drugs, pesticides or other chemicals.”
The permit also “requires the implementation of best management practices (BMPs) and a BMP plan to prevent or minimize the discharge of wastes and pollutants [into the Gulf of Mexico] and to ensure disposal of wastes in such a way as to minimize negative environmental impacts and comply with relevant solid waste disposal regulations.”
In a June 9 letter to Neil Anthony Sims, president and CEO of Ocean Era, Gettle of the EPA Region 4 Water Division pointed out “that the permit requires four plans that must be provided to the EPA within 90 days of permit issuance,” and they must be approved by the EPA prior to any discharge. Those are the Environmental Monitoring Plan, the Best Management Practices Plan, a Facility Damage and Control Plan, and a Quality Assurance Project Plan.
Opponents considering next steps
In response to a Sarasota News Leader inquiry of the Don’t Cage Our Oceans Coalition, which was one of the petitioners in the EAB case, Marianne Cufone, an attorney who is a co-founder of that group, wrote in a June 13 email, “The groups from Don’t Cage Our Oceans that were involved in challenging the EPA on its permit for the offshore finfish farm Velella Epsilon are disappointed, but sadly not surprised that the agency merely re-issued [the permit], rather than taking a hard look at the serious potential problems from the project. Various groups, including our coalition as a whole, are discussing next legal steps.”
The members of that coalition who collaborated on the appeal were the Suncoast Waterkeeper, which is based in Sarasota; Center for Food Safety; Recirculating Farms Coalition; Friends of the Earth; Food & Water Watch; Healthy Gulf; and Tampa Bay Waterkeeper.
In a June 11 email exchange about the EPA decision with Sarasota City Commissioner Jen Ahearn-Koch, Justin Bloom, founder and member of the board of Suncoast Waterkeeper, wrote that that nonprofit “will likely challenge the permit issuance. There is a 120 day window to file. There are numerous groups that will likely join together, mainly national [non-government organizations. I’m happy to discuss as we (Suncoast Waterkeeper) move forward,” he told Ahearn-Koch.
When the News Leader contacted Bloom this week, he noted in a June 13 email that a coalition meeting had been scheduled for the following day “to discuss litigation options.” He added, “I anticipate that [Suncoast Waterkeeper] will challenge the permit but we’ve not had a board vote yet on it.”
Bloom told the News Leader he would offer an update when he had more information. He had not provided any further details prior to the deadline for this issue.
Army Corps of Engineers permit also needed
In the meantime, Ocean Era also needs what is known as a “Section 10 permit” from the U.S. Army Corps of Engineers (USACE), the EPA notice explains. Section 10 of the Rivers and Harbors Act (RHA), which was approved on March 3, 1899, “prohibits the unauthorized obstruction or alteration of any navigable water of the United States (U.S.).” A USACE document adds, “The construction of any structure in or over any navigable water of the U.S., the excavating from or depositing of material in such waters, or the accomplishment of any other work affecting the course, location, condition, or capacity of such waters,” the document says, “is unlawful unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army.”
In response to a News Leader inquiry about the status of that permit, David J. Ruderman, a spokesman for the USACE at its Jacksonville District Office, wrote in a June 14 email, “The USACE team is working the application, [but] there is no projected decision date at present.”
In a formal notice as part of its public comment process, in 2020, the USACE explained that the 20,000 almaco jack (Seriola rivoliana) fingerlings that would be raised in the Ocean Era net pen would be provided by Mote Marine Laboratory of Sarasota.
Further, the notice said, “The VE [Velella Epsilon] Project has been proposed … to support, promote, and invigorate marine aquaculture in the [Gulf of Mexico] by directly addressing the constraints, barriers, or hurdles, and often misperceptions of, U.S. domestic aquaculture development that currently limit increased production. The VE Project will provide information on data collection related to growth of a federally managed species in the offshore environment and information on open ocean aquaculture systems that can be used to inform other pilot-scale and commercial-scale operations, seafood product development, and market research.”
Worries about the impacts of Velella Epsilon on the Gulf
News of the EPA announcement of its original decision on the Ocean Era permit came the same day — Sept. 30, 2020 — that a virtual public hearing was conducted by the Don’t Cage Our Ocean Coalitions. Among the speakers was then-Sarasota Mayor Ahearn-Koch. She noted the damage to the county’s economy from the last major red tide bloom, which began in the fall of 2017 and did not end until early 2019. Ahearn-Koch put the estimate at $96.4 million, as tourists rapidly cancelled reservations at county accommodations after seeing photos and videos of dead fish littering the county’s shoreline. The deaths of mammals, including dolphins, and sea turtles, also were linked to the effects of the red tide algae, Karenia brevis.
Other opponents of the fish farm project have voiced fears that a hurricane could damage the pen, leading to the release of the fish into the Gulf. That could result in their breeding with wild almaco jack, with unknown consequences, those persons have pointed out.
That year, multiple hurricanes swept through the Gulf of Mexico, and many intensified before landfall. In fact, that intensification, which has been linked to climate change, has remained a major point of concern for communities in subsequent seasons.