Florida State Laws

A major issue is brought about by considering the range of the manatee.  Very few manatees ever venture outside of Florida waters.

From a constitutional standpoint, can the federal government create regulations for a species that primarily limits itself to the habitat of one state? 

Florida State FlagThus far, the answer is yes.  However, with the new limits that the Supreme Court has begun to impose on the Commerce Clause, the answer may not always be yes.  In the remote case that the federal protections afforded the manatee would be deemed unconstitutional, the state of Florida has provided its own set of concurrent protections to the Manatee. The manatee is the “Florida state marine mammal.”1  The state protects the manatee, through the Florida Manatee Sanctuary Act, § 370.12 Fla. Stat. (2004),2  independent of the manatee’s status as a ‘state or federal listed species.’3

Revision 5, an amendment to the Florida Constitution proposed by the Constitutional Revision Commission created the Fish and Wildlife Conservation Commission (FWC) in 1998.4  The FWC was modeled after the Game and Fresh Water Fish Commission and exercises executive and regulatory powers of the state regarding wild animal life, fresh water aquatic life, and those marine species formerly regulated by the Marine Fisheries Commission.5

The legislature enacted an implementing bill that merged the Game and Freshwater Fish Commission, the Marine Fisheries Commission and elements of the Department of Environmental Protection, including the Florida Marine Patrol and the Bureau of Protection Species (which regulates manatee, marine turtles and whales).6  These administrative units were transferred to the new Commission intact.  In Caribbean Conservation Corporation et al. v. FWC, the Florida Supreme Court held that manatees, marine turtles and whales are species that do not fall within constitutional authority of FWC and the authority by the FWC over them was transferred by the legislature.7

New leadership at the FWC began to reexamine the structure of the commission in 2002.  After a series of employee and constituent surveys, numerous stakeholder and staff meetings, FWC unveiled its restructure plan in 2003.  Subsequently, SB 2820 was proposed and enacted by the Florida Legislature.8 

The Bureau of Protected Species Management within the Florida Fish and Wildlife Conservation Commission’s Office of Environmental Service adopts rules and regulations that protect the manatee from boats.9 

Save the Manatee Trust Fund

The Save the Manatee Trust Fund receives $1.50 for each vessel registered in the state per year for use to provide manatee and marine protection.10  Furthermore, the state collects voluntary contributions with boat registration fees for the Save the Manatee Trust Fund.  In 1991, these voluntary contributions added $90,000 to the Save the Manatee Trust Fund.  Furthermore, the Save the Manatee Trust Fund receives the collections from the Save the Manatee License Plates to use for manatee and marine protection.11

Recent Legislation: Senate Bill 540

Senate Bill 540 was approved by the governor on June 23rd, 2004. Senate Bill 540 requires FWC to develop rules to define how measurable biological goals will be used by the Commission when evaluating the need for additional manatee protection rules.12  The FWC has developed measurable biological goals to help define manatee recovery; these goals are part of the Recovery Plan for the Manatee, prepared by the United States Fish and Wildlife Services.13   (The Florida Manatee is listed as an endangered species under state and federal law.)  There are three biological goals: (1) manatee survival greater than 90%; (2) reproduction greater than 40% for females with calves; and (3) population growth greater than zero.14 

SB540 requires FWC to give “great weight” to existing manatee protection rules in determining whether additional rules are necessary in a region where the measurable goals have been achieved.15  However, the commission may amend existing rules or adopt new rules to address risks or circumstances in a particular area or water body to protect manatees.16  The bill also authorized an enhanced manatee protection study, to include assessments of habitat and aquatic vegetation and the effectiveness of and compliance with signage on waterways, as well as further research and development of genetic tagging of manatees.17 

Florida Manatee Regulations

The Bureau of Protected Species establishes regulatory zones in areas that manatees inhabit on a regular basis and where manatee sightings are frequent.18  Such zones include: “Idle Speed Zones”;19 “Slow Speed Zones”;20 “Motorboat Prohibited Zone”;21 “No Entry Zone”;22 “Maximum 25 MPH Speed Zone”;23 “Maximum 30 MPH Speed Zone”;24 and “Maximum 35 MPH Speed Zone”.25

The above zones have been applied to various waterways with frequent manatee sightings and can coincide with Federal and Local Manatee Protections.  The FWC recently adopted rules for various waters in and around Tampa Bay.26

Permits are available for events and groups that allow for vessel operation outside the protected zone parameters.27  These include: Commercial Fishing and Professional Guiding Exemptions, Owners or Residents of Waterfront Property in Limited Entry Areas; Boat and Motor Manufacturing Testing Permits; Boat Races; Research, Educational, Construction, Maintenance or Repairs.28

    FloridaState Rules

In November 2003, the Commission adopted general rules which govern staff when developing specific manatee protection rules.  The revised rules make changes pursuant to statutory changes, and further clarify why, how and under what circumstances the Commission may establish manatee protection zones.  The rules also make terminology consistent with Chapter 68D-23, Uniform Waterway Markers in Florida.29

To date, the State has established No Entry, Slow Speed and Idle Speed Zones30 in Lee County31, Brevard County32, Indian River County33, St. Lucie County34, Palm Beach County35, Broward County36, Citrus and Associated Counties (Parts of Levy and Hernando)37, Volusia and Associated Counties (Parts of Putnam, Lake, Seminole and Flagler)38, Hillsborough County39 including Big Bend Area40, Manatee County41, Charlotte County (and Part of DeSoto County)42, Collier County43, Martin County Zones44, Dade County45, Sarasota and Associated Counties (Parts of Manatee and Charlotte)46, and Duval County and Associated Counties (Parts of Clay and St. Johns)47.

Lee County Zones.

Because the FWC’s manatee protection rule for 5 specific areas in Lee County was invalidated, the USFWS announced that these areas were inadequately protected.  As a result, the U.S. Army Corp of Engineers denied water access facility permits in these areas until adequate protection is restored.  To that goal, the USFWS established, by emergency designation, the Pine Island Estero Bay Manatee Refuge; the USFWS is initiating the formal rule making process to make this designation permanent.48

Tampa Bay Manatee Protection Rules

On 22 September 2004, the Florida Fish and Wildlife Conservation Commission conducted a hearing and voted to create Manatee speed zones on Tampa Bay.

The FWC staff proposed to address the manatee protection needs of the Tampa Bay Area, including those portions of Tampa Bay adjacent to Hillsborough, Manatee and Pinellas Counties.  Under Section 370.12(2)(f), all FWC proposed manatee protection rules that regulate the operation of vessels must be reviewed by a local rule review committee (LRRC) in the affected counties.  The LRRC reviews and comments on the FWC staff proposals.  The LRRC completed its work in September 2003.  Much of the FWC proposal was adjusted based upon LRRC input and will be presented to the Commissioners for approval at a final public hearing in September.49

The zones created include:

        1. The entire shoreline of Safety Harbor and the west shore of Old Tampa Bay north of Courtney Campbell Parkway will be slow speed from April 1 to Nov. 15 yearly.
        2. Waters adjacent the east end of the Courtney Campbell on the north side will be slow speed April 1 to Nov. 15, except for the marked channel, which will have a 25-mph limit.
        3. The east shore of Old Tampa Bay from Rocky Point to Gandy Bridge will be slow speed year-round, except for two 25-mph channels to provide access to residential canals.
        4. The waters around the TECO power plant at Apollo Beach will be slow or idle speed most of the year.
        5. The Little Manatee River will have a 25-mph limit year-round.
        6. Bishop's Harbor will be a slow speed zone year-round.
        7. The shoreline of the Manatee River will be a slow speed zone year-round inland to the Interstate 75 bridge. The entire river will be slow speed above the bridge, except for a 25-mph marked channel.
        8. Most of the Braden River will be slow speed year-round except for a 25-mph marked channel in some areas.
        9. Most of Anna Maria Sound will be a year-round slow speed zone, except for marked channels to major boat ramps and 100 feet on either side of the Intracoastal Waterway.
        10. The shorelines of Palma Sola Bay will be slow speed zones, as will the shorelines of Sarasota Bay, with a few on-plane access channels.50
        1 Fla. Stat. ch. 370.12(2)(b) (2004).  
        2 This section was adopted from James Anista, Fish & Wildlife Conservation Law Update, Florida Bar Environmental and Land Use Conference (2004).
        3 Id.
        4 Steve Waters, New Agency’s First Goal, Fort Lauderdale Sun Sentinel, July 1, 1999 at 13C.
        5 Fla. Const. art. IV, § 9. See also Fla. Const. art XII, § 23.
        6 1999 Fla. Laws ch. 245.
        7 Caribbean Conservation Corporation, et al v. FWC, 838 So.2d 492, (Fla. 2003).
        8 James Anista, Fish & Wildlife Conservation Law Update, Florida Bar Environmental and Land Use Conference (2004).
        9 Id.
        10 Fla. Stat. ch. 328.76(1)(a); 370.12(4) (2004).
        11 Fla. Stat. ch. 320.08058(1)(b); 370.12(4)(b) (2004).
        12 Id.
        13 Id.
        14 Id.
        15 Id.
        16 Id.
        17 Id.
        18 Fla. Stat. ch. 370.12(2) (2004).
        19 Fla. Admin. Code r. 68C-22.002(1) (2004).
        20 Fla. Admin. Code r. 68C-22.002(4) (2004).
        21 Fla. Admin. Code r. 68C-22.002(3) (2004).
        22 Fla. Admin. Code r. 68C-22.002(11) (2004).
        23 33 U.S.C. §2006 (2004); Fla. Stat. ch. 327.33 (2004); Fla. Admin. Code r. 68C-22.002(5) (2004).
        24 Fla. Admin. Code r. 68C-22.002(6) (2004).
        25 Fla. Admin. Code r. 68C-22.002(7) (2004).
        26 A Small Inconvenience to Boaters, Tampa Tribune, September 27, 2004, at 16.
        27 Fla. Admin. Code r. 68N-22.003 (2004).
        28 See id.
        29 This paragraph is from: James Anista, Fish & Wildlife Conservation Law Update, Florida Bar Environmental and Land Use Conference (2004).
        30 Fla. Admin. Code r. 68C-22.002 (2004).
        31 Fla. Admin. Code r. 68C-22.005 (2004).
        32 Fla. Admin. Code r. 68C-22.006 (2004).
        33 Fla. Admin. Code r. 68C-22.007 (2004).
        34 Fla. Admin. Code r. 68C-22.008 (2004).
        35 Fla. Admin. Code r. 68C-22.009 (2004).
        36 Fla. Admin. Code r. 68C-22.010 (2004).
        37 Fla. Admin. Code r. 68C-22.011 (2004).
        38 Fla. Admin. Code r. 68C-22.012 (2004).
        39 Fla. Admin. Code r. 68C-22.013 (2004).
        40 Fla. Admin. Code r. 68C-22.022 (2004).
        41 Fla. Admin. Code r. 68C-22.014 (2004).
        42 Fla. Admin. Code r. 68C-22.015 (2004).
        43 Fla. Admin. Code r. 68C-22.023 (2004).
        44 Fla. Admin. Code r. 68C-22.024 (2004).
        45 Fla. Admin. Code r. 68C-22.025 (2004).
        46 Fla. Admin. Code r. 68C-22.026 (2004).
        47 Fla. Admin. Code r. 68C-22.027 (2004).
        48 This paragraph is from: James Anista, Fish & Wildlife Conservation Law Update, Florida Bar Environmental and Land Use Conference (2004).
        49 This paragraph is from: James Anista, Fish & Wildlife Conservation Law Update, Florida Bar Environmental and Land Use Conference (2004).
        50 Tampa Tribune (Florida) September 24, 2004 Friday; Copyright 2004 The Tribune Co. Publishes The Tampa Tribune; Frank Sargent