Motion filed this week in federal appeals court details status of process
No later than May 26, the staff of the U.S. Environmental Protection Agency (EPA) expects to make a final decision on the draft modified permit it issued in October 2024 for a proposed “fish farm” that would be located in the Gulf of Mexico, approximately 45 miles off the Sarasota County coastline, The Sarasota News Leader has learned.
In a March 24 federal court filing, the EPA says it “expects to make a final decision regarding the permit modification request by May 15, 2025,” though May 26 is cited as the latest date anticipated.
That March 24 document is part of the record in federal litigation that dates to September 2022. A U.S. Justice Department attorney representing the EPA and its new administrator, Lee Zeldin, filed the uncontested motion with the U.S. District Court of Appeals for the District of Columbia Circuit, asking the court to keep on hold two legal cases, which had been consolidated, that have sought to prevent the proposed aquaculture project of Ocean Era, a Hawaii-based company, from being established in the Gulf.
(A footnote in the motion points out, “On January 20, 2025, President Trump issued an executive order directing that ‘[t]he area formerly known as the Gulf of Mexico’ be renamed as the ‘Gulf of
America.’ … Because the existing permit references the Gulf of Mexico, we continue to use that name when referring to that permit.” The footnote cited a 2025 ruling of the 11th Circuit Court of Appeals as the basis for that decision.)
The filing of the EPA motion comes nearly a week after a federal judge in the State of Washington ruled that the U.S. Army Corps of Engineers unlawfully established a nationwide permit for aquaculture facilities in federal waters in the oceans on both the east and west coasts of the United States. That permitting process did not involve projects slated for the Gulf, as the Gulf technically is considered a sea.
The March 24 EPA motion explains that the petitioners in the consolidated cases have challenged the EPA’s issuance of a National Pollutant Discharge Elimination System Permit (NPDES) for the Ocean Era “fish farm,” under the Clean Water Act. That permit “authorizes Ocean Era, Inc. to discharge pollutants [from the planned aquaculture facility] subject to effluent limitations, monitoring requirements, and other conditions set forth in the Permit,” the motion points out.
The lead petitioner is Food and Water Watch, the court documents show.
As additional background, the motion notes that, in July 2023, Ocean Era submitted its request to the EPA to modify the permit because company leaders wanted to change the fish species and pen design authorized by the NPDES permit. As a result of the company’s action, the EPA filed a motion with the Appeals Court, seeking time to consider the request and conduct “any necessary administrative proceedings.” On Dec. 7, 2023, the new motion says, the Appeals Court granted the EPA’s request, pending those proceedings and calling for “status reports due every 90 days.”
Then the motion points out that the EPA conducted a 30-day public comment period on the draft modified permit for Ocean Era. That comment period ended on Nov. 25, 2024, the motion adds. “EPA is in the final stages of reviewing all comments and completing a document that responds to the significant comments,” the motion says.
Moreover, the motion continues, “As the Court is aware, a new [presidential] administration took office on January 20, 2025. Thus, EPA is undergoing a transition of leadership that requires additional briefing of pending agency actions, like the draft modified permit at issue here.” The motion adds that EPA staff “anticipates that additional briefing of this matter may take 30 to 60 days.”
The motion further points out, “[I]f EPA issues a modified permit, claims against the portions of the original permit that are no longer applicable and/or replaced would become moot.” Thus, the motion continues, “Extending the abeyance would avoid piecemeal litigation allowing the parties to adjudicate all challenges to the permit at one time, and continuing to preserve Petitioners’ rights to challenge the portions of the permit that are not subject to modification.”
The person responsible for the permit
Attached to the motion was a Declaration by Kip Michael Taylor, who wrote that he has served in the NPDES permitting and enforcement programs since 2009 — part of his 16 years with the EPA.
Taylor stated that, as the director of the Water Division of EPA’s Region 4, which is based in Atlanta, he was “assigned to be the permit writer responsible for developing the NPDES permit” originally issued to Ocean Era on June 8, 2022 for the fish farm off Sarasota County.
“In addition,” Taylor said in the Declaration, “I am responsible for developing or overseeing the development of many supporting documents associated with the permit, and for reviewing and processing requests to modify the permit.”
He continued, “Since receipt of the modification request from Ocean Era, I have been working on processing the modification request. This work requires ensuring compliance with various laws including the Endangered Species Act …”
Further, he stated, “In my work processing the Ocean Era permit modification request, I have been coordinating with the U.S. Army Corps of Engineers, the National Marine Fisheries Service (‘NMFS’), and the National Center for Coastal Ocean Science.”
In regard to the 30-day comment period for the draft modified permit issued last fall, Taylor added, “EPA is required to assess comments received during [that] period and prepare a … document that responds to all significant comments regarding the proposed modifications to the draft permit. EPA is in the final stages of this process and is close to completing the response to comments document.”
He further explained, “EPA is also presently undergoing a transition of political leadership that requires additional briefings and vetting of pending Agency decisions before new officials. This is necessary to ensure that new political leadership supports EPA decisions and that such decisions are consistent with current Agency policies.
In light of the numerous Agency actions currently undergoing management review, the additional briefings and vetting may take 30 to 60 days to complete.”
The changes Ocean Era has sought for its project
As the News Leader has reported, the October 2024 draft modified permit explained that the Ocean Era aquaculture facility would include a “support vessel and a single cage in a water depth of approximately 130 feet. The project would culture a single cycle of approximately 20,000 Red Drum (Sciaenops ocellatus) and produce a maximum annual harvest of 55,000 lbs. [That is a reduction from the prior plan for 88,000 pounds, the EPA has noted.].”
Further, the EPA pointed out that the modified draft permit reflected three other changes, compared to the earlier plans.
One of those is the allowance for red drum. The original proposal called for longfin yellowtail, which also are known as almaco jack; they are related to natural amberjack, according to research the News Leader undertook.
Next, the draft modified permit noted, the “effluent monitoring for total copper has been removed from Table 1 of Permit Part II.A.1 in light of [Ocean Era’s] decision to use a material other than copper for the net pen …”
Finally, the draft continued, “[A] provision clarifying that the intentional or negligent release of produced fish is prohibited has been included in Permit Part II.B.15.”
In a May 10, 2024 letter to the EPA’s Region 4 office in Atlanta, Neil Anthony Sims, founder of Ocean Era, explained that he needed to change the species of fish for the project — which has been christened Velella Epsilon — in accord with the company’s decision to use a grid mooring system instead of a swivel point-mooring system and its desire to use a different variety of pen.
The mooring design “for the proposed SeaProtean Pen,” he wrote, would use eight anchors embedded in the floor of the Gulf, instead of three, as planned for the original design.
The InnovaSea website explains, “The SeaProtean Pen is an affordable submersible fish pen designed for sites that experience occasional weather events, such as strong storms or surface currents. Made from high-density polyethylene, it features a unique three-stage buoyancy chamber for smooth, steady movement when raising and lowering. This prevents fish stocks from experiencing barotrauma and gives operators the precision needed to find the ideal thermocline to maximize fish health.”
The National Library of Medicine says, “Barotrauma is physical tissue damage caused by a pressure difference between an unvented space inside the body and surrounding gas or fluid. The damage is due to shear or overstretching of tissues.”
The National Oceanic and Atmospheric Administration defines “thermocline” as “the transition layer between warmer mixed water at the ocean’s surface and cooler deep water below.”
In regard to the species of fish, Sims explained that Ocean Era has had previous success “with multiple pilot and demonstration operations culturing almaco jack …” However, he continued, that “was based in part on the use of the [swivel-point mooring system] as a fundamental best management practice (BMP) for effectively eliminating [a] skin fluke issue.”
Further, he noted, the Chilean company that had agreed to provide the original mooring system for Velella Epsilon had “met with financial difficulties,” which resulted in its ceasing operations close to six years ago.
“Since that time, the Ocean Era team has pursued numerous other U.S. and European manufacturers who might be willing and able to design, engineer, and construct a similar net pen system,” Sims continued. None had been identified as of the date of his letter to the EPA, he added.
Without the swivel-point mooring system, Sims pointed out, “[T]here is a very strong likelihood that almaco jack originally proposed for the [Velella Epsilon] VE Project would become infested with skin flukes. This would then require either a therapeutic bath treatment (hydrogen peroxide as a standard operating procedure for the commercial almaco jack operations), or the early harvest of the fish. Neither of these options represent a good demonstration of offshore aquaculture’s potential,” he wrote. “Therapeutic bath treatments would also be impractical, given the need for specialized equipment and an experienced team to undertake the process. Further, the VE permits all specifically state that the project will not use any therapeutants in the offshore growout operations.”
Moreover, Sims explained, Mote Marine Laboratory of Sarasota had planned to provide the almaco jack fingerlings for Velella Epsilon. However, he wrote, Mote suffered a power failure during a recent hurricane — apparently Hurricane Ian, which struck Southwest Florida in September 2022. That resulted in “the total loss” of its almaco jack broodstock. “While newly-captured wild broodstock could certainly be obtained,” Sims continued, “this would then mandate a minimum of 6 to 12 months to condition new broodstock for spawning. Mote also has faced challenges with the almaco jack larvae,” in terms of poor egg viability and low larval survival, he wrote.
On the other hand, Sims continued, “Red drum are considered highly successful candidates for offshore culture in the Gulf of Mexico. Fingerlings for this species are readily and abundantly available from several Florida hatcheries throughout the region. There is an existing pond-based aquaculture industry for red drum in Texas, and a large market and strong demand for the product.”