Lawsuit: U.S. gov’t complicit in Florida manatee deaths

Environmental activists on Tuesday sued the U.S. Fish and Wildlife Service, alleging that the agency has failed to protect the beloved Florida manatee in violation of the Endangered Species Act and other federal regulations.

The Center for Biological Diversity, Defenders of Wildlife and the Save the Manatee Club say the federal government’s inaction threatens the survival of the manatee, described as “a large aquatic relative of the elephant.”

More than 1,100 manatees died in Florida in 2021, one of the worst years ever for the gentle, plant-eating mammal. The deaths amounted to about 13% of the Florida manatee’s estimated population.

Excerpts of the lawsuit are below:


Plaintiffs Center for Biological Diversity (Center), Defenders of Wildlife (Defenders), and Save the Manatee Club challenge the unlawfully withheld and/or unreasonably delayed actions by the U.S. Fish and Wildlife Service (FWS) in failing to take final action on Plaintiffs’ “Petition for a Rule to Revise Critical Habitat for the Florida Manatee” dated December 19, 2008 (2008 Petition). In particular, FWS has failed to propose and finalize a regulation to revise the critical habitat designation for the Florida manatee, despite finding in January 2010 that a revision of critical habitat is “warranted” in order to provide for the conservation of the manatee. 75 Fed. Reg. 1574 (Jan. 12, 2010). Critical habitat designation is one of the essential mechanisms embodied in the Endangered Species Act (ESA) for ensuring the survival and effectuating the recovery of imperiled species such as the Florida manatee.

The Florida manatee (Trichechus manatus latirostris) was listed in the first class of endangered species in 1967 under the Endangered Species Preservation Act, the forerunner to the ESA. FWS designated critical habitat for the manatee in 1976, delineating waterways in Florida that were known to be important concentration areas for manatees at that time.

On December 19, 2008, the Center, Defenders, and Save the Manatee Club petitioned FWS under the Administrative Procedure Act (APA) and ESA to undertake a rulemaking to revise critical habitat for the Florida manatee because, during the preceding three decades, Congress and FWS had changed the meaning of critical habitat, the original critical habitat designation lacked elements required by those changes, and new scientific information existed regarding where and how manatees used habitat since the designation.

More than a decade ago, FWS determined that the revision was “warranted” to protect the manatee’s habitat and promote the species’ recovery. This determination was consistent with FWS’s earlier findings, in its own formal recovery plans for the manatee, that the manatee’s critical habitat designation was outdated and needed to be revised. Yet FWS has never undertaken the rulemaking process required to implement that long-overdue revision. Nor, given FWS’s egregious delay, is there any likelihood that FWS will embark on the rulemaking in the near future absent relief from this Court.

Meanwhile, Florida manatees and their habitat continue to face dire and imminent threats, including the loss of warm-water refuges and poor water quality that causes persistent harmful algal blooms and a profound loss of seagrass, a crucial food source, leading to mass starvation. Compounding these threats are a growing number of boat strikes and severe weather events caused by climate disruption.

In 2021, more than 1,100 Florida manatees died due to cold-related stress, starvation, boat strikes, and toxic red tides. This reflects approximately 13% of the manatee’s estimated total population and is more than double its five-year annual mortality average.

Given the ever-worsening threats to the Florida manatee and its habitat, and in light of the agency’s obligations to protect this species, FWS’s protracted failures to propose and finalize a regulation to revise critical habitat in response to Plaintiffs’ 2008 Petition constitute agency actions unlawfully withheld and unreasonably delayed in violation of the ESA and APA. Plaintiffs seek declaratory and injunctive relief to remedy these violations, including an order from the Court setting dates certain for FWS to act.

Plaintiff Save the Manatee Club is a nonprofit 501(c)(3) membership organization dedicated to the conservation of manatees. The organization was founded in 1981 by singer and songwriter Jimmy Buffett and Governor of Florida Bob Graham. There are currently about 40,000 active members of SMC.

The Florida manatee’s current range varies based on the season. In summer months, manatees can be found as far west as Texas, as far north as Massachusetts, and as far south as Cuba. Summer sightings in Alabama, Georgia, and the Carolinas are more common. However, throughout the year manatees are largely concentrated in Florida.

Manatees can be found in shallow, slow-moving rivers, estuaries, saltwater bays, canals, and coastal areas, particularly where seagrass or freshwater vegetation flourish.

Manatees are slow-moving mammals and most of their time is spent eating, resting, and traveling. Manatees are herbivorous, eating a large variety of submerged, emergent, and floating plants, and can consume 10-15% of their body weight in vegetation daily. They may rest submerged at the bottom or just below the surface of the water but must surface to breathe air an average of every three to five minutes.

Manatees cannot survive for long periods in waters colder than 68 F°. Manatees exposed to cold water can develop cold stress syndrome, making them more vulnerable to other threats. Cold stress syndrome can also lead to death.

During the winter of 2009–2010, for example, Florida experienced extremely cold weather for protracted periods. The FWC documented 282 manatee deaths directly attributable to cold stress. The following year, FWC documented 114 deaths due to cold stress. Experts expect an increase in number and severity of cold-water events in coming years due to climate change.

When water temperatures drop below 68 F°, manatees seek refuge in warm water. Over half of Florida’s manatees seek refuge from cold water in the warm-water discharges of power plant cooling water structures. Manatees that do not use human-made warm-water discharges use natural springs and thermal basins. There are currently 14 “major” warm-water sites (i.e., sites with at least one winter count of 50 or more manatees). Ten of these sites are outfalls from power plant cooling systems and four are freshwater springs, which do not drop below 70 F° even in winter months.

Power companies will likely phase out power plant discharges within the next 30 years, while human-caused impacts, such as flow reductions and other activities, threaten Florida’s naturally occurring springs and thermal basins. The threats to natural springs and warm-water habitat include diminishing spring flows from groundwater withdrawals for bottling, industrial and domestic use, obstructions that limit or preclude access, disturbance from recreational activities, algae proliferation and loss of nearby forage resources, and sea level rise.

FWC and FWS released an updated and revised the Florida Manatee Warm-Water Habitat Action Plan in October 2020, which these agencies submitted to Florida Power and Light in December 2020. The action plan envisions protecting regional networks of warm-water refugia to help manatees transition away from power plants and other artificial warm-water sites.

Dependence on artificial sources is not sustainable, as facilities can experience outages and a number of plants will likely shut down over the coming decades. FWS’s failure to update the Florida manatee’s designated critical habitat to reflect the best available scientific data on the species’ warm-water habitat needs is an impediment to the effective implementation of the Warm-Water Habitat Action Plan.

As major power plant outfalls and natural warm-water springs are lost, manatees are struggling to find habitat. Even when manatees can move to alternative sites, food supplies, space, and temperatures for thermoregulating at alternative sites can be inadequate to support a large influx of displaced animals. Restoring and protecting natural warm-water winter habitat, like Crystal River National Wildlife Refuge and the Great Florida Riverway, are top conservation priorities for the Florida manatee. For example, restoration of the Ocklawaha River, a central linkage in the Great Florida Riverway, would allow hundreds of manatees to access essential warm-water habitat in several of the Ocklawaha’s 20 freshwater springs and in Silver River. This warm-water refuge is currently inaccessible for large numbers of manatees due to the Kirkpatrick Dam and accompanying lock system that causes artificially high water levels, covering up the Ocklawaha’s springs, and inhibiting large-scale manatee access to Silver River.

FWS’s failure to update the Florida manatee’s designated critical habitat to reflect the best available scientific data on currently occupied as well as unoccupied critical habitat is an impediment to the work necessary to restore and protect natural warm-water winter habitat.

Increased human activity in areas supporting manatee populations also leads to other sources of mortality. From 2016–2019, 478 manatees died as a result of boat collisions.

Each year saw more watercraft fatalities than the previous. In addition to mortalities, a Florida Fish and Wildlife Research Institute report concluded that one out of every four manatees analyzed bore evidence of ten or more watercraft strikes, and 96% of adult manatees had watercraft-related scars. Between 1981 and 2020, about half of the manatee mortalities from boat collisions occurred outside of designated critical habitat.

Red tides in Florida are caused by the algal species Karenia brevis. When these toxic algae become highly concentrated in ocean waters, the harmful algal blooms known as red tides result. The breve toxins that red tides produce can harm or kill manatees when the animals inhale the toxins while swimming through the algal blooms or when they consume toxins that have settled on seagrass, their primary food source. Red tide and other harmful algae blooms not only harm manatees directly but can also smother and kill off the seagrasses manatees eat.

In 2018, red tide events in southwestern Florida caused the deaths of at least 288 manatees. Though 2018 was the most catastrophic red tide-related mortality event to date, there were more than 30 confirmed red tide-related mortalities each year in 1996, 2002, 2003, 2005, 2006, 2007, 2012, 2013, 2016, 2017, 2018, 2019, and 2021. There were 100 or more red tide-related mortalities documented in 1996, 2003, 2013, and 2018.

Although red tides are a naturally occurring process, their timing and severity can be influenced by natural factors, such as ocean currents, strong winds, and drought conditions, as well as by anthropogenic factors, such as water pollution. Nitrogen and phosphorus, for example, fuel algae growth, including red tide. Discharges from septic and sewer systems as well as stormwater runoff are examples of ways nitrogen and phosphorus enter the surface waters and contribute to harmful algal blooms.

In March 2021, the Piney Point phosphate plant discharged more than 200 million gallons of wastewater into Tampa Bay. This wastewater contained high levels of nutrient pollutants such as ammonia, nitrogen, and phosphorus, which can significantly worsen harmful algal blooms. Shortly after the Piney Point discharge, a red tide bloom appeared in Tampa Bay and persisted for several months. Since June 2021, more than 30 manatees have died from red tide in and around Tampa Bay.

A 2021 Unusual Mortality Event declared under the Marine Mammal Protection Act, 16 U.S.C. §§ 1421-1421h, on the Atlantic coast of Florida from Brevard County to Monroe County, with the epicenter in the Indian River Lagoon in Brevard County, highlights another water-quality-based threat facing the Florida manatee. More than 1,100 manatees died in Florida in 2021. This amount is more than double Florida’s five-year annual manatee mortality average and is about 13% of the Florida manatee’s estimated population. At least 50% of manatee deaths in 2021 occurred in the Indian River Lagoon due to starvation and malnutrition from nutrient pollution that depleted local seagrass beds by contributing to harmful algal blooms.

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