Individuals have until Nov. 25 to provide statements
In accord with a December 2023 order by the U.S. District Court of Appeals for the District of Columbia Circuit, the Environmental Protection Agency (EPA) has issued a notice of the latest draft of its permit for an industrial “fish farm” that would be located in the Gulf of Mexico, about 45 miles southwest of Sarasota.
The pilot program would be known as Velella Epsilon.
The deadline for public comments on the draft permit is Nov. 25, the EPA says.
In a Sept. 3 document related to the litigation, the EPA said that it would consider all the public comments received “and a final permit decision could be made by early December 2024, though the timing will depend on the scope, substance, and quantity of the comments received.”
Already Manasota-88, an environmental organization based in Nokomis, and the Siesta Key Condominium Council have issued advosires to members, decrying the latest efforts of a Hawaii-based company to pursue the project.
“The value of Florida’s biologically sensitive areas and endangered and threatened species should not be put at risk for floating fish farms,” Manasota-88 wrote in a news release distributed on Nov. 3.
“We should not risk the productivity of our offshore or estuarine areas, which will ultimately prove to be more important for our future than harmful industrial fish farming,” the nonprofit added.
“Existing state and federal regulations do not address the significant damage fish farming has on the environment. There is no reason to believe that the EPA will protect Florida’s economy and environment from the potential serious environmental damage associated with industrial fish farming,” the news release said.
In the Nov. 7 Condominium Council newsletter to its members, that organization’s leaders wrote, “Pushing forward this permit now while the area is still recovering from two devastating Hurricanes, Helene and Milton, adds insult to injury. Red Tide has also returned offshore Sarasota. While we are all busy, it is important to send in comments on the draft permit and demand a hearing.”
In its notice, the EPA pointed out, “All comments received [by the Nov. 25 deadline] will be considered in the formulation of a final determination regarding the permit issuance.”
Then, in explaining how to provide comments, the EPA notice said, “All submissions for this public comment period must include the Docket ID number (EPA–R04-OW-2024-0113). Comments received, including any personal information provided, may be posted without change to www.regulations.gov. You may send comments identified by Docket ID (EPA–R04-OW-2024-0113) by any of the following methods,” the notice added:
- “Federal Portal — Using EPA’s portal is our preferred method. Using the Docket ID, follow the online instructions for submitting comments at www.regulations.gov.
- “Email — Include Docket ID number in the subject line of the email that is sent to a-and-r-docket@epa.gov.
- “Fax — Send comments to the attention of Docket ID to (202) 566–9744.
- “Mail — Include Docket ID when mailing to U.S. Environmental Protection Agency, EPA Docket Center, OAR Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
- “Hand Delivery — Using Docket ID, hand deliver to EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center’s hours of operations are 8:30 am – 4:30 pm, Monday–Friday (except Federal Holidays).”
Moreover, the notice pointed out, “Any interested person may request a public hearing” within the comment period. “Where there is a significant degree of public interest in a draft permit modification issuance, the EPA Regional Administrator will schedule and hold a public hearing which would be formally announced at a later date,” the notice added.
Major areas of concern
Since late 2019, when what was then Kampachii Farms of Hawaii — now Ocean Era — announced its plans for the marine net-pen aquaculture facility, many Sarasota County residents and nonprofit organizations have opposed the proposal, citing a range of concerns, including the potential for hurricanes in the Gulf to damage the pen, resulting in the release of the fish into the wild.
An EPA memo released in conjunction with the notice of the draft modified permit points out, “Permit conditions limiting fish escapes have been further clarified by the draft modified permit’s express condition prohibiting the intentional or negligent release of cultured fish.”
Perhaps the largest focus for criticism, though, has been the prospect that the waste produced by the fish would serve as food for the red tide algae Karenia brevis. The EPA’s notice about the initial application for the fish farm came as the community was recovering from a red tide bloom that began in late 2017 and did not disappear until early 2019. Sarasota City Commissioner Jen Ahearn-Koch, who participated in events on behalf of the city to voice opposition to the plans, pointed out on more than one of those occasions that the damage to the economy from that red tide event was approximately $96.4 million. Tourists rapidly cancelled reservations at county accommodations after seeing photos and videos of dead fish littering the county’s shoreline. Moreover, photos of dead mammals, including dolphins, and sea turtles, whose deaths had been attributed to ted tide, also were abundant in news media accounts at the time.
In recent weeks, a red tide bloom has been located off the Southwest Florida coast, causing fish kills and respiratory irritation at county beaches, as The Sarasota News Leader has reported.
The EPA memo issued along with the notice does point out, “All water quality risks associated with the modified permit are less when compared to the 2022 permit due to [a] change in fish species, decreased fish production amount, lower total feed, and reduced phosphorous and nitrogen feed contents. … [T]he total load for nitrogen, phosphorus, and total ammonia nitrogen have decreased by 28%, 40%, 23%, respectively.”
Moreover, the memo adds, “EPA does not anticipate that the modified project’s discharge will contribute to HABs [harmful algal blooms] due to the offshore location and scale of the facility; however, any HAB effects from the project are mitigated by the reduced scale of pollutants comparted to pollutants that were already evaluated in the 2022 permit record.”
Further, the modified draft permit says, “Only medicinal products (all veterinary therapeutic products, antibiotics, and other treatments) and medicinal premixes for inclusion in fish feeds which are approved for use in aquaculture by the Food and Drug Administration shall be used. The appropriate withdrawal times for all medicines used in the treatment or prevention of fish disease must be adhered to. The discharge of any medicinal products shall be reported to the EPA at the address shown in … the permit. The report shall include the mass or volume of product discharged, the product, and the duration that the product was used.”
Further, it calls for the following: “Effluent and down current samples shall be collected no more than 30 minutes after feeding is complete. Upstream current samples shall be collected no more than 60 minutes before or after feeding is complete.”
Other permit changes
Formally, Ocean Era needs a National Pollutant Discharge Elimination System (NPDES) permit from the EPA to conduct the pilot program in the Gulf of Mexico.
As the latest draft of the permit explains, the 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.] The draft modified NPDES permit establishes conditions on the effluent discharge and was drafted in accordance with the provisions of the Clean Water Act (CWA) and other lawful standards and regulations.”
Further, the EPA document points out that the modified draft permit reflects three other changes, “compared to the currently effective permit …”
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 notes, 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 continues, “[A] provision clarifying that the intentional or negligent release of produced fish is prohibited has been included in Permit Part II.B.15.”
The draft adds, “All other conditions of the currently effective permit and the draft modified permit remain the same.”
Ocean Era explanations for the modifications sought
As the News Leader has reported, In a May 10 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 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.”
Sims wrote that the new species of fish would be red drum. That switch was related to the second modification of the permit that the company was seeking, he noted.
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.”
The smallest commercially available SeaProtean pen — which Ocean Era plans to use, Sims continued in that May 10 letter to the EPA, as well as in his July 5, formal letter of request for the permit modification — is 26.5 meters in diameter. The previously permitted pen would have been 17 meters in diameter. The pen will be placed at a depth of approximately 10 feet, he noted.
Additionally, Sims wrote in May, the permitted net pen would have been made of a “copper alloy wire woven into chain-link fence mesh.” The SeaProtean pen, he pointed out, is made of an ultraviolet light-stabilized, “extremely strong and lightweight … PET monofilament, woven into a double twisted hexagonal mesh.”
Sims added, “There is no functional difference between the two materials, in terms of entanglement risk or other concerns.”
The Britannica website explains that PET is “a strong, stiff synthetic fibre and resin and a member of the polyester family of polymers.”
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.”
The Chilean company that had agreed to provide the original mooring system for Velella Epsilon “met with financial difficulties,” Sims noted; it ceased operations about five 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,” he continued. None had been identified to date, 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.”
He also noted, “There are no reported health issues (i.e., skin flukes) with red drum in offshore culture systems, and thus no need for a [swivel-point mooring] net pen system as a [best management practice].”
Then Sims pointed out that, a total of 20,000 fingerlings would be stocked, with an anticipated 85% survival rate, producing a total of 17,000 fish to be harvested in 10 to 12 months. “Since red drum grow more slowly than almaco jack, fish size at harvest would be approximately 2.75 pounds (lbs) vs. the permitted size of 4.4 lbs. This smaller fish size equates to a total harvest of 46,750 lbs vs. the permitted harvest of 74,800 lbs.”
He further noted, “Red drum require a lower protein feed than almaco jack and therefore the nitrogen loading in effluent water would be markedly reduced. This means that potential scale of impacts on the surrounding environment would be lessened.”
In July 2023, Ocean Era formally submitted its permit modification request to the EPA, as noted in a Sept. 9, 2024 filing with the U.S. District Court of Appeals for the District of Columbia Circuit.
The Appeals Court had granted EPA’s motion in the case for “a partial remand without vacatur” so agency staff could consider the Ocean Era request for the changes and “conduct any necessary administrative proceedings.”
A 2014 paper written by Stephanie J. Tatham, an attorney advisor to the Administrative Conference of the United States, explained, “Remand without vacatur is an unusual remedy by several measures. Ordinarily, when a court finds that an agency action was arbitrary and capricious, unlawful, or unsupported by substantial evidence, the action is vacated and the agency must try again. In some cases — where an agency action is flawed but could be sustained after reconsideration at the agency level, or where the consequences of vacating the action would be disruptive — courts have instead remanded the agency decision without vacatur.”
The Appeals Court did require the EPA to provide status reports to it every 90 days, subsequent to its Dec. 7, 2023 ruling in the case.