Environmental Appeals board granted 60-day stay because of number of issues necessitating EPA briefings for Biden Administration officials
The federal Environmental Appeals Board has granted a request of the Region 4 office of the Environmental Protection Agency (EPA) to give staff an extra two months to provide a status report on the permit the EPA granted in September 2020 for a proposed “fish farm” about 45 miles off the Sarasota County coastline.
Originally, the report was due on March 31.
With a number of nonprofit environmental organizations having challenged the permit award, and President Biden having appointed a new director of the EPA and having issued new environmental guidelines, the Appeals Board on Feb. 17 asked the EPA’s Region 4 office to produce an update on the permit granted to a Hawaii-based company called Ocean Era.
Region 4, which is based in Atlanta, handles issues in the Southeastern United States.
That Feb. 17 order pointed out that the Biden Administration “recently issued an executive order directing federal agencies to ‘immediately review’ certain actions taken ‘during the last 4 years’ and to ‘consider suspending, revising, or rescinding’ those actions.”
Further, the order noted that the Ocean Era aquaculture facility “would be the first of its kind to operate and discharge in federal waters in the eastern Gulf of Mexico.”
On March 22, Paul Schwartz, counsel for EPA’s Region 4, filed a Motion for Stay of Proceedings, noting that the Feb. 17 order asked that the status report “[reflect] consultation with the Office of General Counsel and the Office of Water (including incoming Agency officials as appropriate), to provide the [EPA] with an opportunity to review this first-of-its-kind permit” in light of a Jan. 25 Executive Order Biden issued.
That Executive Order was titled Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.
Section 1 of the order says, “Our Nation has an abiding commitment to empower our workers and communities; promote and protect our public health and the environment; and conserve our national treasures and monuments, places that secure our national memory. Where the Federal Government has failed to meet that commitment in the past, it must advance environmental justice. In carrying out this charge, the Federal Government must be guided by the best science and be protected by processes that ensure the integrity of Federal decision-making. It is, therefore, the policy of my Administration to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.
“To that end, this order directs all executive departments and agencies (agencies) to immediately review and, as appropriate and consistent with applicable law, take action to address the promulgation of Federal regulations and other actions during the last 4 years that conflict with these important national objectives, and to immediately commence work to confront the climate crisis.”
Further, the motion for the stay pointed out that the Environmental Appeals Board had asked the Region 4 staff to inform it about whether the board should proceed with deliberations on the Ocean Era matter, “including whether to set this … for oral argument.”
In support of its request for the 60-day delay, the Region 4 motion explained that the Biden Administration is being briefed on a “number of matters.” As a result, Region 4 staff felt it would be unable to comply with the March 31 deadline in a manner that would allow the new administration officials to “make an informed decision” on the Ocean Era permit.
The Region 4 staff also noted in the motion that the petitioners who have filed challenges to the permit did not object to the request for a latter due date for the status report.
In response to the motion, Environmental Appeals Board Judge Kathie A. Stein issued an order on March 24 that granted the request.
Although the motion sought a delay until May 31, Stein noted, that is the date of Memorial Day. Thus, she wrote, the Appeals Board extended the deadline to June 1.
The Ocean Era plans
Ocean Era’s pilot project calls for about 20,000 almaco jack fish — a variety of longfin yellowtail — to be contained in a copper mesh pen that would be anchored at a depth of 130 feet in the Gulf of Mexico. Dubbed Velella Epsilon, the initiative was the focus of a public hearing at a Mote Marine Laboratory facility in January 2020.
At the end of the approximately year-long undertaking, each fish would be expected to have attained a weight of about 4.4 pounds, the final EPA fact sheet on Velella Epsilon noted. Therefore, “the total maximum harvest weight is estimated to be approximately 88,000 [pounds],” assuming a 90% survival rate, the fact sheet pointed out.
The draft Environmental Assessment the EPA completed for the project also explained that the juvenile fish would be sourced from brood stock that are located at Mote Aquaculture Research Park and were caught in the Gulf near Madeira Beach, Florida. … Following harvest, cultured fish would be landed in Florida and sold to federally-licensed dealers in accordance with state and federal laws.”
The maximum amount of fish feed delivered to the net pen each month would be approximately 27,268 pounds, the EPA’s final fact sheet said.
“For Clean Water Act (CWA) purposes, federal waters in the Gulf extend seaward” from the 3 nautical-mile boundary of each Gulf coastal state to 200 miles offshore, the fact sheet added. “In the vicinity of the [planned fish farm location],” the fact sheet said, “the Gulf is not considered an impaired water pursuant to CWA …”
On its website at the time it announced its Velella Epsilon proposal, Ocean Era — then operating as Kampachi Farms — explained, “Ongoing research into alternative feeds is focused on reducing [aquaculture’s] reliance on wild-caught fishmeal and fish oil, replacing them with more sustainable American-grown agricultural products.”
The legal challenges
After the EPA issued the National Pollutant Discharge Elimination System (NPDES) permit to Ocean Era in September 2020, nine environmental or public interest groups — including Suncoast Waterkeeper, which is based in Sarasota — joined in filing an appeal with the Environmental Appeals Board. They contended in a Feb. 1 brief that the EPA assessed only some of the pollutants that Velella Epsilon would be expected to discharge, and they argued that the agency failed to assess others “in accordance with the mandatory factors required by the [U.S. Clean Water Act’s] implementing regulations.”
“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 final EPA fact sheet explained. “Accordingly, marine finfish aquaculture operations are point sources that discharge pollutants and are required to obtain NPDES permits.”
However, the final EPA fact sheet also noted, “The permit requires the implementation of best management practices (BMPs) and a BMP plan to prevent or minimize the discharge of wastes and pollutants to the receiving water body and to ensure disposal of wastes in such a way as to minimize negative environmental impacts and comply with relevant solid waste disposal regulations.”
Another nonprofit organization, Friends of Animals — headquartered in Darien, Conn. — filed a separate petition, seeking a review of the EPA permit. The Friends of Animals argues that the EPA “failed to adequately consider if the Permit would result in undue degradation to the marine environment, failed to fully consider the impact on threatened and endangered species, and failed to take a hard look at the environmental impacts of the [Velella Epsilon] Project.”
Friends of Animals acknowledges that the Aquaculture Act of 1980 provided “guidance for land-based factory farms for fish,” but “aquaculture located offshore[emphasis in the document], in open waters, is entirely new. In fact, the [Velella Epsilon] Project would be the first of its kind in any federal waters of the contiguous United States.”