Environmental Appeals Board calls for status report on ‘fish farm’ permit from EPA, based on new guidance from Biden Administration

Army Corps of Engineers yet to make a decision on second permit Ocean Era needs for pilot project proposed off Sarasota County coast

This is an example of an Ocean Era net-farm. Image from Ocean Era

In response to actions President Joe Biden has taken since he was sworn in on Jan. 20, the federal Environmental Appeals Board has asked officials of the Environmental Protection Agency (EPA) to provide a status report on the agency’s issuance last year of a permit for a “fish farm” planned about 45 miles off the Sarasota County coast.

A Feb. 17 order from the Appeals Board points out that the Biden Administration “recently issued an executive order directing federal agencies to ‘immediately review’ certain actions taken ‘during the last 4 years’ and to ‘consider suspending, revising, or rescinding’ those actions.”

Moreover, the order notes, the proposed Ocean Era “aquaculture facility would be the first of its kind to operate and discharge in federal waters of the eastern Gulf of Mexico.”

Further, the order explains, “[U]nder longstanding EPA procedures, the Agency’s regional and Headquarters offices must coordinate with respect to their views on issues raised in permit appeals so that the positions presented to the [Appeals] Board consistently represent those of the Agency as a whole, which property takes into account the views of a new Administration.”

The EPA’s Region 4 staff, based in Atlanta, approved the Ocean Era permit. Region 4 handles issues in the Southeastern United States.

In underscoring the need for coordination between the regional offices and the headquarters, the order cites a January 1993 memorandum from Ray Ludwiszewski, acting general counsel with the Office of General Counsel, and Herbert H. Tate, assistant administrator of the Office of Enforcement for the EPA.

Additionally, the order says that arguments that have been raised “appear to present issues of national significance concerning the application of the [Clean Water Act, the National Environmental Policy Act and the Endangered Species Act] to offshore aquaculture facilities.”

“[P]reparation and filing of a status report, reflecting consultation with the Office of General Counsel and the Office of Water (including incoming Agency officials as appropriate) will provide the Agency with an opportunity to review this first-of-its-kind permit in light of [the Biden] Executive Order and ensure that the Region’s positions in this proceeding reflect the Agency’s coordinated views,” the order adds.

The status report is to be filed no later than March 31, the order says, “informing the Board whether the Board should proceed with deliberations in this matter, including whether to set this matter for oral argument.”

Kathie A. Stein, an environmental appeals judge, signed the order.

Ocean Era also needs a permit from the U.S. Army Corps of Engineers (USACE). Nakeir Nobles, a spokeswoman with the USACE District Office in Jacksonville, told The Sarasota News Leader in a Feb. 24 email, “At this time, we have no date when a permit decision will be made. We are reviewing the project and all of the comments received from the public notice [the USACE published last year]. We received more than 1,000 comments. A public hearing has been requested, but a decision to have one or not has not been made.”

Staunch opposition

In October 2020, nine environmental or public interest organizations joined in filling an appeal with the Environmental Appeals Board, seeking to overturn the issuance of the EPA permit for the Velella Epsilon pilot project.

The Suncoast Waterkeeper, based in Sarasota, was among those named in the appeal. The organizations have maintained that the EPA “has 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 Feb. 1 brief that the EPA assessed only some of the pollutants that Velella Epsilon would be expected to discharge, and they argued that the agency failed to assess others “in accordance with the mandatory factors required by the [U.S. Clean Water Act’s] implementing regulations.”

These are the two types of federal permits Ocean Era needs before it can launch the pilot project. Image from the April 2020 Environmental Assessment  produced by the EPA and the USACE

The NPDES permit would allow Ocean Era of Hawaii — formerly known as Kampachi Farms — to anchor a copper mesh pen at a depth of 130 feet in the Gulf of Mexico. That pen would contain about 20,000 almaco jack fish, a variety of longfin yellowtail, the EPA explains.

“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,” an EPA fact sheet explains. “Accordingly, marine finfish aquaculture operations are point sources that discharge pollutants and are required to obtain NPDES permits.”

Friends of the Animals petition also filed

Another nonprofit organization, Friends of Animals — which was incorporated in the state of New York in 1957 — filed a separate petition on its own, seeking a review of the EPA permit. The Friends of Animals argues that the EPA “failed to adequately consider if the Permit would result in undue degradation to the marine environment, failed to fully consider the impact on threatened and endangered species, and failed to take a hard look at the environmental impacts of the [Velella Epsilon] Project.”

Friends of Animals acknowledges that the Aquaculture Act of 1980 provided “guidance for land-based factory farms for fish,” but “aquaculture located offshore [emphasis in the document], in open waters, is entirely new. In fact, the [Velella Epsilon] Project would be the first of its kind in any federal waters of the contiguous United States.”

Further, the nonprofit argues, “There is no legal framework for regulating this new industry in federal waters. On August 3, 2020, the Fifth Circuit Court of Appeals affirmed a District Court decision that stated in no ambiguous terms that current federal legislation ‘neither suggests nor says that [the National Oceanic and Atmospheric Administration] may regulate aquaculture.’” That case was Gulf Fishermen’s Ass’n v. Nat’l Marine Fisheries Serv., the brief points out.

These are the proposed coordinates for the Velella Epsilon project area. Image courtesy EPA

Among the risks of net pen aquaculture, the Friends of Animals continues, are “fish escapes, where the farmed fish are released en masse and compete with other species for food and spawning areas and can even dilute the gene pool within their own species.”

Additionally, the nonprofit says, “Due to the net pen design, where fish are crammed into highly unnatural densities, parasites such as sea lice are common. These and other parasites or pathogens can easily spread to the surrounding area since the water flows freely in and out of the net pen.”
The petition also points out, “Pharmaceuticals are frequently used in such concentrations of fish in order to keep away parasites and diseases. The dumping of these pharmaceuticals into the open ocean can contribute to the ongoing threat of antibiotic resistance, as is also seen in factory farms for land mammals.”

The organization asks that the Environmental Appeals Board “remand the permit … to EPA, with instructions to correct the numerous errors and failings riddled throughout the permit. An additional public comment period should be allowed so that outside parties may once again assess the NPDES permit and make sure EPA follows the several laws at issue here,” the petition adds.

This is one of the rotating banners on the homepage of Trends of Animals. Image from the website

In its response to the Friends of Animals petition, the EPA points out that, concurrent with its issuance of the permit to Ocean Era, the agency issued its Environmental Assessment “concluding that no significant environmental impacts were anticipated from the proposed action.” Additionally, it notes, “The Permit authorizes only those discharges at the Facility associated with a single production cycle over approximately 12 months.”

Friends of Animals has asked for oral arguments in the case before the Environmental Appeals Board, the Feb. 17 order notes. The EPA opposes that request, the order points out. The agency contends that Friends of Animals “fails to demonstrate any clear error of fact or law that warrants a review by the [Appeals] Board.”

In its Feb. 17 order, the Appeals Board further notes that Ocean Era “has not participated in these proceedings.”

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