This week a federal court ruled that offshore fisheries cannot be permitted in the Gulf of Mexico under existing policy. Opponents of a proposed fish farm off Sarasota's coast called the decision a victory, but the CEO of the company spearheading the local project says he's pushing ahead.
The U.S. Court of Appeals for the Fifth Circuit ruled that it was illegal for the Department of Commerce to issue regulations that would have permitted large-scale aquaculture operations offshore in U.S. federal waters. The ruling affirmed a 2018 decision, which the Trump Administration had appealed.
"Basically, the case hinged on whether aquaculture could be considered fishing under the law and the court decided that it couldn't,” said Marianne Cufone, a Tampa and New Orleans based environmental law attorney who argued against fish farming.
“That seems correct," she said. "Fishing and fish farming are not the same thing--just like duck hunting and duck farming aren't the same thing. The agency was essentially saying that because they pull the fish from the water out of the net pens, that that equates to harvesting a wild fish and as the court said in its opinion, they wouldn't bite.”
The ruling also affirmed that the federal agency cannot approve permits without new Congressional authority.
"The National Oceanic and Atmospheric Administration hasn't been given any powers by Congress to manage offshore fish farming, and actually neither has any other agency,” said Cufone, who also serves as executive director of Recirculating Farms Coalition. “There are other permits applicable to offshore aquaculture like discharges from the facility, but no agency has been given primary permitting authority.”
But Neil Sims, CEO of Ocean Era, which ran two pilot offshore aquaculture projects off of Hawaii, said plans are still moving forward for its third facility 45 miles off the coast of Sarasota.
The project, called Velella Epsilon, could produce 20,000 almaco jack, a fish similar to amberjack, each year. The fish would be hatched from eggs in tanks on shore at Mote Aquaculture Research Park and transferred to the open ocean pen as fingerlings.
And there is some question about whether it could still be allowed to move forward off the coast of Florida.
That's because the ruling is by the 5th Circuit and is controlling specifically for the states that are in the 5th Circuit. Florida is now in the 11th circuit.
But Cufone, the environmental attorney, said she and her co-counsels feel the ruling applies to the entire Gulf of Mexico.
“Because the lawsuit is about a federal law, and it was about regulations in the entire Gulf of Mexico, arguably it should apply to Florida as well," she said. "Meaning that by extension, if an agency can't do a particular thing under a federal law in one place, it probably shouldn't do that thing in another place.”
In the meantime, Ocean Era is still waiting for approval from the Environmental Protection Agency and the Army Corps of Engineers.
‘”If EPA issues a permit-- and or the Army Corps of Engineers-- there will be a legal challenge by a number of different groups,” Cufone said.
Environmentalists contend that offshore aquaculture farms increase pollution from waste and negatively impacts small fishing businesses.
Meanwhile, companies like Ocean Era say that fish farming is a sustainable way to boost the nation’s seafood supply.
