Proposed fish farm remains unfazed by federal court's NOAA opinion
As a proposed finfish farm awaits word on its demonstration pen in the Gulf of Mexico, a federal appeals court upheld a decision revoking authority from a federal agency to permit and regulate offshore fisheries.
The opinion Monday comes after a 2018 federal district ruling. The Gulf Fishermen's Association claimed aquaculture regulations fall outside the National Oceanic and Atmospheric Administration's National Marine Fisheries Service authority.
Environmental groups who brought the litigation call the opinion a victory in their efforts to stop offshore fish farming from gaining ground in the U.S. However, Neil Sims, founder and CEO of aquaculture company Ocean Era, said the court's decision won't hinder his progress and means one less permit for an offshore finfish farm.
Sims said the decision could leave a gap in the regulation of the industry. His company's efforts to build Velella Epsilon, a demonstration pen about 45 miles southwest of Sarasota in the Gulf, remain undeterred.
"It begs the question: If NOAA doesn’t regulate, who is going to coordinate regulation of aquaculture," Sims said. "(NOAA) is the logical entity"
Environmentalists say pollution from fish farms can feed harmful algal blooms. Sims said he has addressed this with "excessive monitoring" of pens that show no significant effects.
With NOAA unable to issue offshore aquaculture permits, Sims said the Environmental Protection Agency stepped forward to be the lead agency, and all the appeals court decision means is that Ocean Era's Velella Epsilon project in the Gulf will not need a permit from NOAA.
"It’s one less permit for the demonstration pen, but the ideal would be to have a robust management framework in place," he said.
Opponents of the proposed finfish farm consider the Fifth Circuit Court of Appeals opinion a victory, saying Congress would now need to grant NOAA explicit authority to permit these farms in federally controlled ocean waters.
"(The opinion) is significant because the case correctly indicates this new industry is unable to move forward without a law by Congress," Marianne Cufone, an environmental attorney and executive director of Recirculating Farms, said. "Essentially no agency has the authority. Right now we’ve got a stop to the development of ocean aquaculture."
While the EPA can potentially issue a permit for discharges into federal waters, it still lacks authority to regulate the industry, she said. Because the original ruling and the assent of the recent opinion are federal, Cufone said precedent is set outside of the eastern district where the ruling took place.
The decision was filed on Monday in the U.S. Court of Appeals Fifth District in New Orleans.
"Really the (offshore aquaculture) industry is so outdated," she said. "Agencies should really focus attention developing more sustainable and modern (methods)."
The opinion and original 2018 case argue that aquaculture is not fishing, and therefore falls outside of current federal authority.
"Today's decision makes clear what we have said all along: Congress never intended for the federal government to allow massive factory fish farms in federal waters," Wenonah Hauter, executive director of Food and Water Watch, wrote in a news release.
Hallie Templeton, senior oceans campaigner for the environmental advocacy group Friends of the Earth, told the Daily News in May that because NOAA is within the U.S. Department of Commerce, there were also concerns about a potential conflict of interest.
“It’s like the fox guarding the hen house,” she said. “If you want the industry to succeed, you may not pay attention to the environment.”
George Kimbrell, lead counsel in the case, called the appeals' court opinion a landmark victory.
"Allowing net-pen aquaculture and its environmental harms in the Gulf of Mexico is a grave threat, and the Court properly held the government cannot do so without new and proper Congressional authority," he wrote in the release. "Aquaculture harms cannot be shoehorned under existing law never intended for that purpose."
Despite the court's opinion and the opposition his company faces, Sims and Ocean Era remain optimistic that Velella Epsilon will move forward.
"It’s the way the world should be. We should have rational management regulations in place. We in the industry are asking for that," he said. "We want to see this industry well managed and coordinated in its development."
The Ocean Era demonstration pen is still waiting to hear back from the EPA on a potential permit to discharge into the Gulf.
Karl Schneider is an environment reporter. Follow him on Facebook and Twitter:@karlstartswithk, email him at email@example.com
This article originally appeared on Naples Daily News: Proposed fish farm remains unfazed by federal court's NOAA opinion