Petitioners file final brief in case before the Environmental Appeals Board
In their most recent brief, in an appeal of the Environmental Protection Agency’s decision to issue a permit for a “fish farm” off the Sarasota County coast, attorneys for a group of nine environmental or public interest organizations maintain that the agency “has consistently failed to evaluate the totality of the project it authorized under the National Pollution Discharge Elimination System Permit [NPDES] … at issue in this case.”
Suncoast Waterkeeper, which is based in Sarasota, is one of the petitioners.
In October 2020, the nonprofit organizations filed their appeal with the Environmental Appeals Board. Located in Washington, D.C., that board “is the final decision maker on administrative appeals under all major environmental statutes that EPA [Environmental Protection Agency] administers,” the board’s website explains.
The NPDES permit the EPA issued last year authorizes Ocean Era Inc. of Hawaii “to operate the only industrial ocean finfish farm in U.S. federal waters — in the Gulf of Mexico approximately 45 miles from the coast of Sarasota,” the petitioners’ Feb. 1 brief points out.
The EPA assessed only some of the pollutants the facility would be expected to discharge, the brief continues, “and fails to assess others in accordance with the mandatory factors required by the [U.S. Clean Water Act’s] implementing regulations.”
In the final Environmental Assessment (EA) that the EPA released on the project, the brief adds, the Ocean Discharge Criteria Evaluation (ODCE) “does not assess critical discharges authorized by this novel Permit, including antibiotics, pathogens, escaped fish, and copper the facility will discharge into the Gulf for the first time. Consequently, the full impacts to the receiving waters and to endangered species have never been assessed.”
“Section 402 [of the Clean Water Act] is clear that a NPDES permit may be granted only after EPA applies the standards of the CWA [Clean Water Act] to all pollutants discharged by a permit applicant,” the petitioners argue, with emphasis. “Congress plainly anticipated that its permit program would sweep in all pollutants,” the brief continues. “It did not say permits are only required for the discharge of ‘pollutants of concern’ or unmitigated pollutants, but for ‘any pollutant.’”
On Sept. 30, 2020, the EPA approved the permit, which allows the discharge of wastewater from an aquatic net pen dubbed Velella Epsilon. Ocean Era — formerly known as Kampachi Farms — sought the permit for the facility it wants to anchor at a depth of about 130 feet in the Gulf of Mexico. The copper mesh pen would contain about 20,000 almaco jack fish. The 12- to 18-month pilot project would be expected to produce “up to 80,000 pounds of marketable fish,” the EPA explained in its Dec. 18, 2020 answer to the environmental groups’ petition.
The pen would have a diameter of 17 meters and a height of 7 meters, an EPA fact sheet says. “The submersible fish pen will be deployed on an engineered multi-anchor swivel (MAS) mooring system,” the fact sheet adds. “The engineered MAS will have up to three anchors for the mooring, with a swivel and bridle system. … The mooring lines for the proposed project will be attached to a floating cage that will rotate in the prevailing current direction.”
The EPA also notes in that fact sheet that the maximum amount of feed for the fish has been estimated at 27,268 pounds per month.
“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,” the EPA fact sheet notes. “Accordingly, marine finfish aquaculture operations are point sources that discharge pollutants and are required to obtain NPDES permits.”
In the Feb. 1 brief, the petitioners also allege that the “EPA’s ODCE [Ocean Discharge Criteria Evaluation] failed to address one of the ten mandatory factors with regards to phosphorus, nitrogen, and antibiotic discharges: ‘the potential impact of the discharge on human health through direct and indirect pathways. … This omission was particularly glaring,” the petitioners add, “as the very definition of ‘unreasonable degradation’ [in the Clean Water Act] includes ‘any threat to human health through direct exposure to pollutants or through consumption of exposed aquatic organisms.’ … EPA acknowledges the potential of antibiotic discharges to contribute to antibiotic resistance … and the potential of harmful algal blooms to ‘directly or indirectly cause illness in people.’ … Yet,” the petitioners point out, “EPA again argues that mitigation measures will render these discharges ‘minimal,’ but fails to point to any such discussion of potential health impacts in the ODCE.”
Section 125.122 of the Code of Federal Regulations lists the 10 standards that must be considered in determining whether a discharge “will cause unreasonable degradation of the marine environment,” the brief points out.
Further, the petitioners argue, “The ODCE contains no analysis of location-specific impacts of antibiotic use in the Gulf of Mexico or from a similar offshore net pen facility. Instead, EPA refers only to studies from around the world, such as Japan, Norway, and the Puget Sound, all of which are more than thirty years old.”
In its Dec. 18, 2020 answer to the petitioners’ initial brief, the EPA contended, “While the ODCE recognizes that other studies have noted the potential for development of antibiotic resistance from use at fish farms, especially at facilities with a practice of heavy antibiotic use or in laboratory studies that did not mimic environmental conditions, the ODCE further indicates that the potential for resistance to develop appears to depend on the nature of the practices at a facility and the environmental conditions. … Ultimately, based on the analysis in the ODCE, the transfer of drug resistance from fish to human pathogenic bacteria appears unlikely.”
The EPA also argued that the petitioners “have not demonstrated that there will be ‘significant adverse changes’ to ecosystem diversity, productivity and stability of the biological community in or near the area of the discharge. Nor have they identified a threat to human health through ‘direct exposure to pollutants or through consumption of exposed aquatic organisms.’”
Decision timeline uncertain at this point
A new rule that went into effect on Sept. 21, 2020 “to streamline and modernize” the EPA’s permit process says the Environmental Appeals Board must issue a final decision 60 days after an appeal “has been fully briefed and argued. The [board] may grant itself a one-time 60-day extension if it determines that the nature and complexity of the case requires additional time.”
As of Feb. 4, The Sarasota News Leader found that oral arguments had not been scheduled in the Ocean Era case, although it appeared all the briefs had been filed.
Along with Suncoast Waterkeeper, the petitioners are the Center for Food Safety in San Francisco; Friends of the Earth, Tampa Bay Waterkeeper, Food & Water Watch, Healthy Gulf, Sierra Club Florida, Recirculating Farms Coalition, and Center for Biological Diversity.
Points and counterpoints
Among other points, the EPA’s Dec. 18, 2020 brief said that the agency 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.
Many Sarasota County opponents of the proposed fish farm have expressed concern about the facility’s potential to spur red tide blooms. A Sarasota City Commission letter to the EPA, which the board members discussed in February 2020, noted, “The most recent red tide outbreak in 2018 had a devastating impact on our coast — not only on the quality of life of our residents and tourists, but also environmentally and economically. The economic impact alone is estimated at $96.4 million.”
That red tide bloom began in the fall of 2018 and continued into early 2019.
Nonetheless, the EPA emphasized in its Dec. 18, 2020 brief that the Ocean Era net pen would be placed “at a location that will be well-flushed by strong currents …” NOAA had found that “[s]iting farms in deep, well flushed waters will help disperse dissolved nutrients,” the Response to Comments also noted.
Yet another contention the petitioners make in their Feb. 1 brief is that the Code of Federal Regulations “does not require an unreasonable or significant threat to human health, only the existence of a threat to human health. … EPA admitted that the project’s nutrient addition to the Gulf was ‘of concern’ and acknowledged that both phosphorus and nitrogen from the facility may cause excess growth of phytoplankton and lead to water quality problems. … Even the ODCE itself states that uneaten food, fecal matter, and metabolic wastes from the facility will lead to increased phosphorus levels, and ‘increased phosphorus may, along with nitrogen, contribute to algal blooms …’”
Among other arguments, the petitioners note that the EPA “points to the copper mesh cage design as a mitigation measure for preventing fish escapes,” because the design is “‘impact resistant’.” Yet, the petitioners say, “No further explanation is provided in the [agency’s Environmental Assessment] of how this design will prevent escapes, nor any analysis of impacts” should EPA prove wrong about the integrity of the pen design.
Additionally, the petitioners note that the EPA’s second mitigation measure is allowing only native species “sourced from brood stock caught in the Gulf near Madeira Beach, Florida to prevent impacts from fish escapes …”
Mote Marine Laboratory, based in Sarasota, would provide that fish stock, the EPA has said.
The petitioners’ brief adds, “EPA argues that, because the permit does not authorize discharges of non-native fish, such a discharge need not be studied. … However, the Permit does not authorize the discharge of any fish, just non-native [emphasis in the brief]. … This measure remains unenforceable,” the petitioners stress.