Federal Laws

Federal laws related to manatee protection.

NEPA (1969)

The National Environmental Policy Act of 1969 requires the U.S. Army Corps of Engineers and other federal agencies to consider manatee impacts when it prepares Environmental Assessments or Environmental Impact Statements on projects that could significantly impact the manatee.¹ NEPA does not require that the decisions that are made be the best for the manatee but only that the decision makers are making informed decisions and understand how their decision will impact the environment.²

Marine Mammal Protection Act (1972)

The Marine Mammal Protection Act (MMPA) was passed in order to help reverse the impact of human activities on marine mammals and to protect marine mammal species including manatees and dugongs.³ The MMPA takes precedence over the ESA if the MMPA is more protective of a species than the ESA. The MMPA was reauthorized in 1994 and has undergone a significant evolution. Initially, the impetus to pass the MMPA was to protect dolphins from the tuna industry.⁴ However, the act provides broader protections to a variety of marine mammals including manatees.⁵

The MMPA seeks to prevent a decrease of marine mammal stocks below levels at which the mammals would cease to be functioning parts of the ecosystem in which they live. Furthermore, the MMPA seeks to prevent a population decrease below optimum sustainable levels. According to the MMPA, the optimum sustainable population is “the number of animals which will result in the maximum productivity of the population or species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.”⁶ In order to achieve these goals, the act requires that species be replenished that are below their optimum sustainable level. The MMPA established a moratorium on importation and taking of marine mammals so that, eventually, the “incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate.”⁷

The MMPA defines take as “harass, hunt, capture, or kill, or attempt to harass, hunt, capture or kill any marine mammal.” The act defines two levels of harassment: Level A Harassment which has the potential to injure a marine mammal in the wild and Level B Harassment which has the potential to disturb the marine mammal in the wild. The MMPA protects the manatee by requiring that permits be obtained in order to take a manatee from the wild, or to conduct scientific research or for public display.⁸

The Secretary of the Interior is responsible for the manatee. If the population is not at its optimum level, a conservation plan is developed for the protected species. Since the Florida Manatee is defined as endangered under the ESA, it is considered depleted under the MMPA and a Conservation Plan is required.⁹ The Conservation plan guides research and management actions for the species. The most current Conservation Plan for the Florida Manatee was revised in 2001.

The U.S. Fish and Wildlife Service, Southeast Region has published a Florida Manatee Recovery Plan that is now on its third revision. The Plan identifies threats to the manatee and steps that should be taken to insure its survival. The Plan comports with provisions in the MMPA and the ESA requiring that protections be implemented for the Manatee. According to MMPA, the manatee population needs to be in the optimum sustainable range. However, there currently is not enough information to define the optimum sustainable range of the Florida Manatee.¹⁰ The USGS has prepared a Final EIS for Assessing Incidental Take of Manatees Due to Watercraft-related Activities for the MMPA. The EIS divided the manatee population into four sub-populations: Atlantic, Upper St. Johns, Northwest, and Southwest. The MMPA Final Environmental Impact Statement (EIS) on Incidental Takes of Manatees due to Watercraft Collisions attempted to define the carrying capacity of the four sub populations of the Manatee.¹¹ For the Atlantic region, the EIS defined the current carrying capacity to be 2000 (range of 1200-5000).¹² For the Upper St. Johns Region, the EIS defined the current carrying capacity to be 325 (range of 325-500).¹³ For the Northwest Region, the EIS defined the current carrying capacity to be 1200 (750-3000). For the Southwest Region, the EIS defined the current carrying capacity to be 1500 (1200-3000).¹⁴ This EIS reported that “the current levels of incidental take cannot be deemed negligible for any of the four manatee stocks, even if those levels of take are held constant over time.”¹⁵ The report concluded “In the absence of any new management action, that is, if boat mortality rates continue to increase at the rates observed since 1992, the situation in the Atlantic and Southwest regions is dire, with no chance of meeting recovery criteria, within 100 yrs.”¹⁶

The USGS Model seeks to determine at what level the watercraft-related incidental take would be negligible.¹⁷ Negligible takes are defined as impacts “not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”¹⁸ The model takes into account the potential impacts if power plants in the southwest part of the state at Ft. Myers and Tampa cease operations.¹⁹

Endangered Species Act (1973)

The Endangered Species Act (ESA) is one of the few environmental statutes with real teeth.²⁰ The Endangered Species Act protects listed species from being hunted, killed or harmed and also protects against habitat loss. A listed species is categorized as either endangered or threatened. A species will be listed as endangered if it is “in danger of extinction throughout all or a significant portion of its range.”²¹ Likewise, a species is threatened if it could become endangered in the foreseeable future in all or a significant portion of its range.²²

The Fish and Wildlife Service or the National Marine Fisheries Service can list species on their own accord. Otherwise, individuals petition the Services to list the species. Economic and political factors should not be taken into consideration by the Services when evaluating a potential listing. The Services must list species it they are found to be endangered or threatened.

Once a species is listed, federal agencies must work with the Services before they do anything that could impact an endangered or threatened species.²³ This includes an impact that could jeopardize the continued existence of the species or the destruction or harm of the species’ habitat. TVA v. Hill emphasized that the agencies cannot consider cost when making these determinations.²⁴

The ESA makes it illegal to import or export endangered species.²⁵ Additionally, the ESA prohibits takings of an endangered species of fish or wildlife by the public.²⁶ Take means “harass, harm, pursue, hunt, shoot, would, ill, trap, capture, or collect.” If a violator of the ESA is convicted they face penalties including civil fines, forfeiture and imprisonment.²⁷ The ESA also allows citizens’ suits that can be filed against any person or government to prevent them from violating the act and to force the Secretary of Interior or Commerce to take action against takes of endangered species.

The West Indian Manatee is an endangered species listed since 1967.²⁸ Because the Manatee was listed as an endangered species prior to the passage of the Endangered Species Act of 1973, no Section 4(a)(1) listing package was produced that identified the threats to the species.²⁹ The critical habitat of the subspecies Trichechus manatus latirostris was established in 1976.³⁰ This designation of the critical habitat was the first designation for a marine mammal.³¹

Section 4(f) of the ESA requires the Secretary of the Interior to develop and implement recovery plans for the “conservation and survival of the endangered species.”³² The recovery plan should include: “(i) a description of such site-specific management actions as may be necessary to achieve the plan's goal for the conservation and survival of the species; (ii) objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list; and (iii) estimates of the time required and the cost to carry out those measures needed to achieve the plan's goal and to achieve intermediate steps toward that goal.”³³ The recovery plan for the Florida manatee is in its third revision. A species can be delisted if the species no longer meets the five listing factors in §4(a)(1) of the ESA. Those listing factors are:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range;
(b) Over-utilization for commercial, recreational, scientific, or educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued existence.³⁴

Also, a species can be delisted if it goes extinct, recovers or the original data used for the listing was determined to be wrong.³⁵

Clean Water Act (1977)

The Clean Water Act requires power plants and other industrial sites that discharge warm water to obtain NPDES (National Pollutant Discharge Elimination System) permits.³⁶ Power plants are also required to have a power plant Manatee Protection Plan as part of this permit.³⁷ The FWC aids the utilities in creating a plan and gives recommendations to FDEP on whether to “accept, modify or reject the MPP.”³⁸

Federal Regulations pursuant to the Endangered Species Act and Marine Mammal Protection Act

NASA contracts

If the use of waterways adjacent to Cape Canaveral are required under NASA contracts, then NASA shall insert a clause requiring bidders and vendors to follow precautions including: operating all vessels at idle speed, undergoing manatee awareness training as to recognition of manatees, observing applicable laws relating to manatees, personal liability of workers under the laws and restrictions imposed by the Kennedy Space Center.³⁹

Transportation of Hazardous Liquid by Pipeline

These regulations control how hazardous liquids are transported in a pipeline and restrict where pipelines can be built that will affect certain marine species including the manatee.⁴⁰

Manatee Protection Areas⁴¹

The director of the Fish and Wildlife Service (FWS) may establish Manatee Protection Areas such as Manatee Protection Refuges and Sanctuaries under this Regulation. A manatee sanctuary prohibits all waterborne activities.⁴² A manatee refuge prohibits some, not all, waterborne activities.⁴³ The regulations make it unlawful for anyone to engage in prohibited activities in a Manatee sanctuary or refuge and authorizes the Coast Guard and other officers to board vessels and stop prohibited activities.⁴⁴ The regulations further authorize the establishment of emergency manatee protection areas under certain circumstances that will take effect almost immediately.⁴⁵ The manatee sanctuaries and refuges are defined in Appendix 1 of 50 C.F.R. 17.108. The manatee sanctuaries are located in: Citrus County⁴⁶; Pinellas County⁴⁷; and Hillsborough County.⁴⁸ The manatee refuges are located in Brevard County⁴⁹; Hillsborough County⁵⁰; Sarasota County⁵¹; Charlotte County⁵²; DeSoto County⁵³; Lee County⁵⁴; Duval County⁵⁵; Clay County⁵⁶; St. Johns County⁵⁷; and Volusia County.⁵⁸

New Federal Rules

FWS emergency rule, “Establishment of an Additional Manatee Protection Area in Lee County, FL”⁵⁹

The FWS found that inadequate protections were being provided near Pine Island and Estero Bay because of the recent State Court ruling overturning Florida Fish and Wildlife Conservation Commission rules.⁶⁰ The FWS found that the water bodies are used by a significant number of manatees. As a result, in the interim before the federal government can craft a permanent rule, they created an emergency rule to protect manatees in these areas and created a Federal Manatee Refuge near Cape Coral in Estero Bay.⁶¹

FWS; final rule. “Removal of Federal Protection Status from Two Manatee Protection Areas in Florida.”⁶²

The FWS proposed to remove Federal Manatee Refuge status from waters in Sarasota (Pansy Bayou Manatee Refuge) and Brevard County (Cocoa Beach Manatee Refuge) because they will be protected under state law.

Conclusions

The manatee and its habitat are protected by a wide array of environmental statutes. These may only require that decision makers make informed decisions about the impact on the manatee (NEPA) or the preparation of a specific Manatee Protection Plan (CWA) or ultimately force the creation of refuges and sanctuaries for manatee protection (ESA and MMPA). This wide array of statutory schemes provides a federal blanket to protect the manatee.

1	National Environmental Policy Act of 1969 § 102, 42 U.S.C. § 4332 (2004).
2	Robertson v. Methow Valley Citizen’s Council, 490 U.S. 332 (1989).
3	Marine Mammal Protection Act §§ 2(6), 3(6), 16 U.S.C. §§ 1361(6), 1362(6) (2004).
4	Susan Alker, Comment, The Marine Mammal Protection Act: Refocusing the Approach to Conservation, 44 UCLA L.Rev. 527, 529 (December 1996).
5	Marine Mammal Protection Act § 2(6).
6	Marine Mammal Protection Act § 2.
7	Marine Mammal Protection Act § 101.
8	National Marine Fisheries Service, Office of Protected Resources, Marine Mammal Protection Act (MMPA) of 1972 at http://www.nmfs.noaa.gov/prot_res/laws/MMPA/MMPA.html.
9	Marine Mammal Protection Act § 115(b).
10	U.S. Fish and Wildlife Serv., Florida Manatee Recovery Plan 10 (3d revision 2001) at http://northflorida.fws.gov/Manatee/Documents/Recovery%20Plan/MRP-start.pdf.
11	United States Geological Survey, Patuxent, Wildlife Research Center, A model for assessing Incidental Take of Manatees Due to Watercraft-related Activities I-17 (2003) at this location.
12	Id.
13	Id.
14	Id.
15	Id. at I-1.
16	Id.
17	Id.
18	Regulations governing small takes of marine mammals incidental to specified activities, 50 C.F.R. § 18.27 (2004).
19	United States Geological Survey, supra note 31, at I-9.
20	James Salsman & Barton H. Thompson, Jr., Envronmental Law and Policy 255 (2003).
21	Endangered Species Act § 3(6), 16 U.S.C. § 1532 (2004).
22	Endangered Species Act § 3(20).
23	Endangered Species Act § 7(a)(2).
24	Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).
25	Endangered Species Act § 9.
26	Endangered Species Act § 9(a)(1).
27	Endangered Species Act § 11.
28	U.S. Fish and Wildlife Serv., Florida Manatee Recovery Plan 1 (3d revision 2001) at http://northflorida.fws.gov/Manatee/Documents/Recovery%20Plan/MRP-start.pdf.
29	Id.
30	Fish and Wildlife Service, Critical habitat--fish and wildlife, 50 C.F.R. § 17.95 (2004).
31	U.S. Fish and Wildlife Serv., supra note 19, at 1.
32	Endangered Species Act § 4(f).
33	Id.
34	Endangered Species Act § 4(a).
35	Factors for listing, delisting, or reclassifying species, 50 C.F.R. § 424.11(d) (2004).
36	Clean Water Act §§ 301, 402, 33 U.S.C. §§ 1311, 1342 (2004).
37	U.S. Fish and Wildlife Serv., Florida Manatee Recovery Plan 56 (3d revision 2001) at http://northflorida.fws.gov/Manatee/Documents/Recovery%20Plan/MRP-start.pdf.
38	Id.
39	Protection of the Florida Manatee, 48. C.F.R. § 1847.7001; 48 C.F.R. § 1852.247-71 (2004).
40	Unusually Sensitive Areas, 49 C.F.R. § 195.6 (2004).
41	Manatee Protection Areas, 50 C.F.R. § 17.100 et seq. (2004).
42	Manatee Protection Areas, Prohibitions, 50 C.F.R. § 17.104 (2004).
43	Id.
44	Manatee Protection Areas, Facilitating Enforcement, 50 C.F.R. § 17.107 (2004).
45	Manatee Protection Areas, Emergency establishment of protection areas, 50 C.F.R. § 17.106 (2004).
46	50 C.F.R. §§ 17.108(a)(1); 17.108(a)(2); 17.108(a)(3); 17.108(a)(4); 17.108(a)(5); 17.108(a)(6); 17.108(a)(7); 17.108(a)(8) (2004).
47	50 C.F.R. § 17.108(a)(9) (2004).
48	50 C.F.R. §§ 17.108(a)(10); 17.108(a)(11) (2004).
49	50 C.F.R. §§ 17.108(c)(1); 17.108(c)(2); 17.107(c)(9) (2004).
50	50 C.F.R. §§ 17.108(c)(3); 17.108(c)(4) (2004).
51	50 C.F.R. §§ 17.108(c)(5); 17.108(c)(6) (2004).
52	50 C.F.R. §§ 17.108(c)(6); 17.108(c)(7) (2004).
53	50 C.F.R. § 17.108(c)(7) (2004).
54	50 C.F.R. §§ 17.108(c)(8); 17.108(c)(10); 17.108(c)(13) (2004).
55	50 C.F.R. § 17.108(c)(11) (2004).
56	50 C.F.R. § 17.108(c)(11) (2004).
57	50 C.F.R. § 17.108(c)(11) (2004).
58	50 C.F.R. § 17.108(c)(12) (2004).
59	Endangered and Threatened Wildlife and Plants; Establishment of an Additional Manatee Protection Area in Lee County, Florida, 69 Fed. Reg. 48,115-01 (Aug. 6, 2004); see also 69 Fed. Reg. 18279 (Apr. 7, 2004); 50 C.F.R. 17.108(c)(13) (2004).
60	Id.
61	Id.
62	Removal of Federal Protection Status from Two Manatee Protection Areas in Florida, 69 Fed. Reg. 40796-01 (July 7, 2004). See also, 68 Fed. Reg 60316-60324 (October 22, 2003).