By Clark Mindock · Published on

Law360 (May 9, 2022, 1:24 PM EDT) — The U.S. Environmental Protection Agency must better explain whether the nation’s first-ever industrial-scale aquaculture facility in federal waters might degrade the marine environment, an agency appeals board ruled after environmental groups challenged the project.

The EPA’s Environmental Appeals Board on Friday remanded approvals for the Ocean Era Inc. project slated for the Gulf of Mexico, after finding the federal agency made conflicting statements regarding whether the proposed project would cause unreasonable degradation of the marine environment.

The Board found the EPA had indicated both that the project would not cause unreasonable degradation and elsewhere concluded that unreasonable degradation is “not likely” to occur. Since the EPA needs to state unequivocally that the former is the case, the Board remanded the Clean Water Act permit to the agency to formally clarify the scope of potential damages.

“The Board remands the permit decision to the Region to clearly state whether the Region determined that the permitted discharge will not cause unreasonable degradation of the marine environment,” the Board said, denying other elements of the challenge filed by environmental groups.

The Center for Food Safety and others challenged the permit, which would allow Ocean Era to build the Velella Epsilon project, which would be built in the Gulf of Mexico and would be the first deep water fish farm approved in federal waters.

The project would be built roughly 45 miles from the coast of Sarasota, Florida, and would build on earlier fish farming experiments in Hawaii. The Velella Epsilon project’s approvals came after the National Oceanic and Atmospheric Administration finalized a rule in 2016 that would permit commercial aquaculture operations in federal Gulf waters.

The Board’s rejection of the permit was welcomed by CFS, which said in a statement distributed Monday the decision shows that a much more certain finding is needed from the EPA before the fish farm can go forward.

“EPA admitted that it made inconsistent statements in its decision to approve the first-ever offshore finfish aquaculture facility,” Meredith Stevenson, an attorney for CFS said. “As the appeals board noted, EPA needs to determine with certainty that the facility will not harm the marine environment. If it does, we will continue to watchdog EPA to ensure it meets legal requirements for its assessment of this facility, as well as any others in the future to protect aquatic ecosystems, species and public health.”

The EPA and Ocean Era didn’t immediately respond to requests for comment Monday.

The federal government was represented in the appeal by Paul Schwartz, Elise M. O’Dea, Tracy L. Sheppard and Stephen J. Sweeney of the EPA.

Ocean Era Inc. is represented in the appeal by Neith Anthony Sims of Ocean Era Inc.

The environmental groups are represented by Jennifer Best and Adam Kreger of Friends of Animals, and Meredith Stevenson and Sylvia Shih-Yau Wu of the Center for Food Safety.

The case is In re; Ocean Era Inc. Permit No FL0A00001, NPDES Appeal Nos. 20-08 & 20-09, before the Environmental Appeals Board of the United States Environmental Protection Agency.