Community leaders hail the decision
On May 6, a three-judge panel of the federal Environmental Appeals Board (EAB) ordered that the Southeast Region of the Environmental Protection Agency (EPA) “clearly state whether [it] determined” that discharge from a proposed “fish farm” off the coast of Sarasota County would “not cause unreasonable degradation of the marine environment.”
The Southeast Region staff, based in Atlanta, “stated two different things in the conclusion of its evaluation with respect to [that issue],” the order pointed out. One sentence indicates that permitted discharges will not cause unreasonable degradation; the other concludes that unreasonable degradation is “not likely” to occur. “Under federal regulations, it is the former determination that the Region is required to make when issuing the permit,” the order said.
The Southeast Region issued a National Pollutant Discharge Elimination System (NPDES) permit to Ocean Era — formerly known as Kampachi Farms — on Sept. 30, 2020, for the proposed aquaculture project in the Gulf of Mexico.
When the Environmental Appeals Board judges asked counsel for the Southeast Region why the language differed in those two instances, the order continued, the attorney “referred to the phrasing as ‘inartful,’ and as ‘just a relic of inartful characterization drafting.’”
Yet, the order pointed out, the Southeast Region staff had to make “a specific determination,” based on a set of criteria, before issuing the permit.
“While the use of the phrase ‘no unreasonable degradation will likely occur [emphasis in the document]’ may be the result of inartful drafting, given the dichotomous phraseology within the last two sentences of the Region’s conclusion, we remand for the Region to formally clarify its determination,” the order said.
Ocean Era christened its pilot fish farm initiative Velella Epsilon.
“The project proposes to raise a species of fish called Almaco Jack, which is a type of yellow fin native to the Gulf of Mexico, starting with 20,000 fish (sourced from the Gulf) and producing up to 80,000 pounds of harvest fish over a period of 12-18 months,” the order pointed out.
The cylindrical, copper alloy net-pen would measure 17 meters in diameter and 7 meters in height. Ocean Era’s plans call for it to be submerged in about 130 feet of water and anchored to the floor of the Gulf by up to three mooring lines, using a “multi-anchor swivel” system that would allow the net-pen to drift freely in the water.
It would be situated about 45 miles off the coast of Sarasota County.
Additionally, a 70-foot-long “tender” vessel would be tethered to the net-pen, and another vessel would be used for the harvest and transport of fish, the order explained.
The draft Environmental Assessment on the project, which the Southeast Region staff produced, “preliminarily found that ‘[the issuance of the NPDES permit would] not cause a significant impact on the environment,’” the order said.
A petition that nine environmental or public interest organizations filed as a coalition with the EAB contended that the permit decision violated the federal Clean Water Act, the Endangered Species Act, the National Environmental Policy Act, and the Marine Mammal Protection Act.
The Environmental Appeals Board denied review of all the alleged violations except for the one related to the Clean Water Act, the order said.
The coalition included Suncoast Waterkeeper, which is based in Sarasota, along with Center for Food Safety, Recirculating Farms Coalition, Friends of the Earth, Center for Biological Diversity, Food & Water Watch, Healthy Gulf, and Tampa Bay Waterkeeper. Friends of Animals filed its own petition in an effort to see the permit revoked.
The judges who handled the appeal were Aaron P. Avila, Mary Kay Lynch and Kathie A. Stein, the order noted.
When The Sarasota News Leader contacted EPA staff regarding an estimate of how long it would take for the Southeast Region staff to respond to the order, a spokesperson replied via email on May 12: “No further information is available on matters pending before the [Environmental Appeals] Board. All of the Board’s decisions are provided on its website, along with docket information.”
In Sarasota, community leaders expressed their delight at the news of the decision.
Justin Bloom, founder and vice chair of the board of Suncoast Waterkeeper, told the News Leader via email on May 12, “For Suncoast Waterkeeper: We are relieved that the Environmental Appeals Board issued an opinion that the permit for the factory fish farm proposed offshore from Sarasota was not in compliance with the Clean Water Act. Suncoast Waterkeeper joined other groups in challenging EPA’s permit. This is a very narrow win on an error that EPA could pretty easily fix, but importantly, it is an opportunity to revisit the project before the EPA with new leadership in DC and the regional administration in Atlanta.”
Sarasota City Commissioner Jen Ahearn-Koch, who fought the fish farm on behalf of the city, responded, “Wow! Wow, wow, wow!” when the News Leader informed her about the order.
As Ahearn-Koch pointed out a couple of years ago, when news of the Velella Epsilon plans emerged, she was concerned that the project could pose a significant threat to Sarasota Bay and the community’s economy. She stressed that the red tide event that began in the Gulf of Mexico in the fall of 2017, which continued into early 2019, had an estimated negative impact on the economy of $96.4 million.
(During a September 2018 discussion, then-Sarasota County Commissioner Paul Caragiulo acknowledged that the level of the bloom was “not unprecedented.” However, he added, “What is unprecedented is the economic impact that it has.”)
“This is great news,” Ahearn-Koch told the News Leader on May 12, noting that she was eager to read the order.
Catherine Luckner, president of the nonprofit Siesta Key Association (SKA), provided the News Leader the following statement: “We are so grateful for this outcome for further research. Our coastal waters are at risk from variables not yet considered for this project.”
Luckner added that she was “thankful for those who spoke up (as did SKA) and those who filed outstanding legal challenges.”
Leaders of organizations that were among the petitioners for the appeal also welcomed the news.
In a May 9 press release, Meredith Stevenson, associate attorney at Center for Food Safety, who served as that organization’s counsel in the appeal, wrote, “EPA admitted that it made inconsistent statements in its decision to approve the first-ever offshore finfish aquaculture facility. As the appeals board noted, EPA needs to determine with certainty that the facility will not harm the marine environment. If it does, we will continue to watchdog EPA to ensure it meets legal requirements for its assessment of this facility, as well as any others in the future to protect aquatic ecosystems, species, and public health,”
Marianne Cufone, executive director of Recirculating Farms and co-founder of the Don’t Cage Our Oceans coalition, added, “It is good news that the Environmental Appeals Board recognized shortcomings in the EPA permitting process. We hope the agency will take time to review and acknowledge the dangers associated with offshore finfish aquaculture, and we will not need to pursue future legal action.”
Explaining the case
The May 6 order explained that the Environmental Appeals Board “has discretion to grant or deny review of a permit decision. … Ordinarily,” the order continued, “the Board will deny review of a permit decision and thus not remand it unless the permit decision either is based on a clearly erroneous finding of fact or conclusion of law or involves a matter of policy or exercise of discretion that warrants review.”
Then the order pointed out that Congress enacted the Clean Water Act (CWA) in 1972 “ ‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’ … To achieve this objective, the Act prohibits the discharge of pollutants into the waters of the United States, unless authorized by an NPDES permit or other specified CWA provision.”
Section 403 of the Clean Water Act “addresses the issuance of NPDES permits for discharges,” the order continued. “In that provision of the CWA, the order added, “Congress directed EPA to ‘promulgate guidelines for determining the degradation’ of these types of waters.” EPA did so, the order said; thus, “the CWA provides that no NPDES permit for a discharge into federal waters shall be issued, except in compliance with the promulgated guidelines.”
And while they may be referred to as “guidelines,” the order emphasized, “they are not simply guidance; they are regulations with which the permit issuer must comply.”
Therefore, the order continued, the EPA “must determine ‘whether a discharge will cause unreasonable degradation of the marine environment.’”
The latter phrase, the order noted, is defined as follows:
“(1) Significant adverse changes in ecosystem diversity,
productivity[,] and stability of the biological community within the area of discharge and surrounding biological communities,
“(2) Threat to human health through direct exposure to pollutants or through consumption of exposed aquatic organisms, or
“(3) Loss of esthetic, recreational, scientific[,] or economic values which is unreasonable in relation to the benefit derived from the discharge.”
Then the EPA has to determine whether a discharge will cause unreasonable degradation of the marine environment based on consideration of 10 enumerated factors, the order pointed out.
In October 2018, the order noted, Ocean Era submitted its application for an NPDES permit to Region 4. That permit would allow Ocean Era to discharge fish food and fecal matter, for examples, “from a proposed pilot-scale offshore ‘net-pen’ aquaculture facility … into the Gulf of Mexico,” the order noted.
After publishing “the proposed NPDES permit and associated documents” on Aug. 30, 2019, the order continued, the Southeast Region staff “received approximately 44,500 comments from various interested individuals and parties.”
The nonprofit groups that appealed the permit maintained that the Southeast Region staff “clearly erred in its consideration of the Ocean Discharge Criteria by failing to fully consider the discharge of nutrients (and their potential to contribute to harmful algal blooms, which poses a threat to human health), pharmaceuticals in the form of antibiotics given to the farmed fish (and the consequent threat to human health due to antibiotic resistance), pathogens and parasites (passed from the farmed fish to other marine life), escaped fish, and copper (from the net-pen itself).”
The Southeast Region countered that it had considered all of those factors before issuing the permit, the May 6 order said.
One of the primary arguments made by the petitioners in the appeal, the order pointed out, was that the discharge of nutrients from Velella Epsilon would contribute to the growth of harmful algal blooms (HABs). The Southeast Region staff, disagreed “with that underlying assumption,” the order said.
The staff expected that “aquaculture-related pollutants” would not be found within 5 to 10 meters of the net-pen, the order added.
The Southeast Region staff did acknowledge that “adding nutrients to the Gulf can pose a problem because nutrients are known to contribute to HABs, including Karenia brevis, more commonly known as the red tide organism,” the order continued.
Notwithstanding that potential, the order added, the Southeast Region 4 s “explained that the concentration of waste nitrogen from net-pens diminishes greatly immediately downstream and that ‘not enough scientific evidence … is available to suggest that [nutrients] from fish farming, or the proposed project, can be directly related to the occurrence of red tides.’”
Further, the order pointed out, the Southeast Region staff noted that the National Oceanic and Atmospheric Administration (NOAA) “had concluded that, although there is some evidence that effluent from fish farms may contribute to an occurrence of HABs in the marine environment, ‘most studies have failed to demonstrate a clear effect.’”
The Southeast Region staff also “observed that ‘[s]iting farms in deep, well flushed waters will help disperse dissolved nutrients, and siting projects away from areas where effluent will be washed onshore will also help avoid eutrophication.’”
The petitioners “[relied] heavily on the Region’s general acknowledgement that nutrients can encourage the growth of HABs as a basis for assuming that health effects from HABs must be considered,” the order said.
Ultimately, the order continued, the petitioners did not demonstrate that the Southeast Region staff “clearly erred by not considering the threat to human health from HABs …”