Judge consolidates two petitions for hearing, which also will involve Hawaii-based company Ocean Era
The federal Environmental Appeals Board has announced that it will hold oral arguments on Thursday, Nov. 4, as it considers challenges to an Environmental Protection Agency (EPA) permit that would allow a marine aquaculture facility — a “fish farm” — to be installed about 45 miles off the Sarasota County coast as a 12-month pilot project.
An order issued on Aug. 10 by Environmental Appeals Judge Kathie A. Stein said the board had consolidated two challenges to the permit. In separate petitions filed in 2020, Friends of Animals and the Center for Food Safety contend that the EPA’s issuance of the permit for the copper mesh fish pen is a violation of the U.S. Clean Water Act.
“Upon review of the administrative record and the briefs filed,” Stein’s order says, “the board has concluded that oral argument will assist in its deliberation of these two petitions for review.”
Noting that it has conducted such arguments by videoconference over the past year, the Environmental Appeals Board will do the same with the Nov. 4 event, the order adds. The arguments are scheduled from 1:30 to 3:30 p.m. Eastern Time that day.
As its website explains, the Environmental Appeals Board (EAB) “is the final [EPA] decision maker on administrative appeals under all major environmental statutes that the Agency administers. The EAB hears permit and civil penalty appeals in accordance with regulations delegating this authority from the EPA Administrator. Appeals from permit decisions made by EPA’s Regional Administrators (and in some cases, state permitting officials) may be filed either by permittees or other interested persons.”
In response for a Sarasota News Leader request for comment about the EAB order, Marianne Cufone, executive director of the Recirculating Farms Coalition, wrote in an Aug. 18 email, “We appreciate that the EPA review board is fully considering our challenge to the agency’s approval of a wastewater discharge permit for the development of an industrial finfish farming project off the coast of Sarasota, Florida. We look forward to further explaining our concerns regarding the permit and the project.”
The Recirculating Farms Coalition has joined a larger group, called the Don’t Cage Our Ocean Coalition, in opposing the fish farm. The Suncoast Waterkeeper, which is based in Sarasota, is part of the larger coalition.
In late September 2020, the staff of the EPA’s Region 4 office — in Atlanta — issued the National Pollutant Discharge Elimination System (NPDES) permit to a Hawaii-based company called Ocean Era, which originally operated as Kampachi Farms. Referred to as the “Velella Epsilon Project,” the net pen would contain about 20,000 almaco jack fish, which the EPA explains is a variety of longfin yellowtail. The pen would be anchored at a depth of 130 feet in the Gulf of Mexico.
“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.”
Earlier this year, the Environmental Appeals Board (EAB) called for the EPA Region 4 staff to prepare a status report on the Velella Epsilon project in light of the positions that President Joe Biden and his administration have taken on environmental issues. In many situations, Biden’s stances are different from those of previous President Donald Trump.
Issued on May 28, the report said that Region 4 stood by its issuance of the permit to Ocean Era.
The report noted that the Region 4 staff “consulted with the [EPA’s] Office of the General Counsel and Office of Water (including incoming Agency officials)” in preparing its response.
“[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 status report added of Ocean Era’s proposed project.
The EPA also had maintained that oral arguments were not necessary in regard to the legal challenges of the nonprofit organizations.
The red tide worries
On June 1, in response to a News Leader request for comment on the EPA’s decision about the permit, Adam Kreger, an attorney representing Friends of Animals, wrote, “Friends of Animals is disappointed that EPA has not changed its position regarding the first proposed aquaculture facility in the federal waters of the United States. As EPA’s own appeals board stated, the proposed facility is novel, and it presents issues of national significance. That is one of the reasons why the appeals board ordered EPA to review its stance on the matter.”
Kreger added, “Friends of Animals still believes this facility should not move forward, as it violates multiple federal statutes. As it is currently planned, the facility will dump massive amounts of nitrogen and phosphorus into the open ocean. These two substances are the two main nutrients that contribute to harmful algal blooms such as red tides, which have devastated Florida’s coast near Sarasota. No facility should be allowed to pollute our oceans and harm marine wildlife, especially not in sensitive areas like the Gulf Coast.”
For the past few months, counties on the Gulf Coast of Florida — including Sarasota County — have been experiencing significant red tide issues. Some environmental groups have linked the bloom to the April discharge of about 215 million gallons of polluted water into Tampa Bay. The effluent had been stored at the old Piney Point fertilizer plant in Manatee County.
A leak in a pond on the site of that fertilizer facility had prompted fears that nearby homes could be destroyed — and an environmental disaster could occur — if action were not taken to ease the pressure on the pond in a stack of phosphogypsum, a byproduct of fertilizer manufacturing.
On Aug. 17, the Sarasota County red tide update said that county staff had “observed a significant increase in the number of fish washed up on Siesta Beach.” However, the update continued, decreased red tide impacts had been seen in the bays and inland waters around Venice Inlet, Venice Island and Casey Key. “Minor impacts were observed throughout the rest of the county,” it pointed out.
Signage at all 16 county-operated beaches warns visitors of the presence of red tide, which can cause respiratory irritation as well as the deaths of fish and other marine creatures.
On Aug. 18, county staff noted on its Red Tide Dashboard that minor aerosol issues had been identified at 10 beaches, with moderate levels of dead fish found on Siesta Beach and minor to moderate levels on Turtle Beach, on the southern portion of Siesta Key.
On Sept. 30, 2020 — just hours, apparently, before the EPA issued the permit to Ocean Era — Friends of the Earth and the Don’t Cage Our Ocean Coalition conducted a virtual hearing on the proposed fish farm. A number of participants stressed the potential for the aquaculture facility to spur red tide blooms, which would result in degradation of the Gulf and potentially an economic downturn as serious as the one Sarasota County experienced after a red tide bloom began in the fall of 2017 and lingered into early 2019. Aerosols were so strong on county beaches, and fish kills — and deaths of mammals, including dolphins — were so numerous, tourism practically came to a standstill. County hospitality industry representatives pleaded with the Sarasota County Commission to take action to prevent red tide blooms in the future.
Sarasota City Commissioner Jen Ahearn-Koch has pointed to data showing that the negative economic impact of that red tide event was estimated at $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.”
Among other concerns raised during the Sept. 30, 2020 virtual hearing on the Ocean Era proposal, speakers talked of the intensification of the hurricane season in recent years. On Nov. 24, 2020, the National Oceanic and Atmospheric Administration (NOAA) issued an article that discussed the “record-breaking 30 named storms and 11 landfalling storms in the continental United States.”
During the hearing, speakers pointed out that a hurricane could damage the fish farm in the Gulf, resulting in the release of the almaco jack into the wild, where they would breed with native fish.
Ocean Era’s position
On its website, Ocean Era explains 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 adds, is “part of a national initiative to increase U.S. aquaculture production …”
Further, the website quotes 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.”