Standing-Watch.org A Boating Coalition

December 20, 2002
THE MANATEE PROTECTION CRISIS
Wade L. Hopping
Hopping Green & Sams
Tallahassee, FL 32301
[email protected]

CURRENT STATUS OF THE FLORIDA MANATEE:
Although we have been studying the manatee in Florida since 1974, it wasn’t until 1991 that State agencies began to make regular aerial counts to determine the annual number of manatees in Florida. The aerial counts, since 1991, have ranged from a 1991 low of 1465 to a high in 2001 of 3,276. The counts are conducted on cold winter days, usually right after the first of the year.
Aerial count figures consistently underestimate the actual manatee population because the pilots and the observers do not see all of the manatees. The counts may also vary from year to year depending in part on the coldness of the weather because manatees are easier to count when they are congregated in warm water sites. The chart below shows the results of the aerial counts since 1991 with the exception of 1993 and 1994 when no counts were made. In the 10-year historic perspective, it looks as if the population has more than doubled since 1991.

Manatee Counts: 1991-2002

YEAR AERIAL SURVEY COUNT WATERCRAFT-ATTRIBUTED DEATHS WATERCRAFT DEATHS AS PERCENTAGE OF TOTAL OBSERVED POPULATION
1991 1465 53 3.6%
1992 1856 38 2.1%
1993 N/A 35 –
1994 N/A 51 –
1995 1822 43 2.4%
1996 2639 60 2.3%
1997 2229 55 2.5%
1998 2022 66 3.3%
1999 2353 82 3.5%
2000 2222 78 3.5%
2001 3276 82 2.5%
2002 3276 (est.) 84 2.5%

Another way to look at the species’ health is to adopt criteria and see how the existing species measure up. Although no official, final recovery goal has been adopted, currently the U.S. Fish and Wildlife Service (FWS) and the Florida Wildlife Conservation Commission (FWCC) are using three criteria to determine the health of the species. The criteria are:
∑ Adult Survival
∑ Adult Females with Calves
∑ Population Growth Rate

The criteria for Adult Survival is 90% or greater. For Adult Females with Calves, the criteria is 40% or greater. For Population Growth, the criteria is greater than zero. Somewhat arbitrarily the FWS has divided the state of Florida into four manatee regions. The chart below shows how the specie fares in each of these regions.

FWS
MANATEE RECOVERY
DEMOGRAPHIC BENCHMARKS

Criteria Which Must Be Met Proposed
Rule Criteria Northwest
Florida St. Johns
River Atlantic Coast Southwest
Adult Survival 90% or greater 96.2% 96.1% 94.3% 90.6%
Adult Females
w/ Calves 40% or greater 43% 41% 42% Unknown
Population Growth
Rate Greater than
Zero 5.0% 6.1% 3.2% Unknown

Unfortunately, inadequate data is available for Adult Females with Calves and Population Growth in the Southwest Florida region. Nevertheless, because of high watercraft attributed death rates in that region, the FWS has speculated that the specie is not doing well in the Southwest region. There has been some criticism of the division of the herd into four subsets rather than treating it either as a single population for the entire state or as two groups, East coast and West coast, since treatment as a single stock would show the species meeting the recovery criteria.

The 2002 Florida legislature instructed the Florida Fish & Wildlife Conservation Commission to adopt "measurable biological goals"to be used in determining manatee recovery no later than February 15, 2003. (See §372.072 (6), F.S.) Once the Florida measurable biological goals are adopted we will have official recognition of how to measure the species’ recovery.
In August 2001, the Coastal Conservation Association requested the FWCC to reevaluate the biological status of manatees and to down list the specie to "threatened", "species of special concern" or "recovered". This "listing" petition will be acted on by the FWCC in the spring of 2003.
FEDERAL LAWSUITS
In January 2000, Save the Manatee Club and several other groups and individuals filed a lawsuit against the FWS and the Corps of Engineers alleging violations of the Endangered Species Act, Marine Mammal Protection Act (MMPA), National Environmental Policy Act, and Administrative Procedure Act. A settlement agreement was reached and ratified by the U.S. District Court in January 2001. Among the tasks to be accomplished under the settlement is development of MMPA Incidental Take Regulations to address unintentional incidental take of manatees. The settlement has not caused peace to break out. Rather the Plaintiffs have continually accused the various Federal agencies of failing to carry out their part of the settlement. The U.S. District Court judge has agreed with the Plaintiffs in this matter.
As a result of the DC litigation, on November 14, 2002, the Department of Interior Fish and Wildlife Service published a Notice of Rule Making to implement "incidental take" Letters of Authorization under the Marine Mammal Protection Act. Hearings were being held around the state of Florida on these proposed rules in December 2002. (See 67 Federal Register, No. 220, pages 69078 ET seq.) The comment period for these rules ends on January 13, 2003. The rule is expected to be published in March 2003.TALLAHASSEE FEDERAL LAWSUIT
A group of Plaintiffs similar to those in the Washington lawsuit filed an action in the Federal District court for Tallahassee in 2000. The suit against the Florida Wildlife Conservation Commission charged them with inadequate protection of the manatee under Florida’s law and the Endangered Species Act. The Commission entered into a settlement with the Plaintiffs April 23, 2001. This settlement called for the Commission to adopt additional protection areas and additional speed zones throughout the state of Florida. The settlement required the Commission to initially consider rules for the eight (8) "hot spot" areas and eight (8) "safe havens". In a later phase the Commission is to consider additional restrictions for Tampa Bay, eight (8) additional "safe havens" and to study existing protection rules in Lee, Duval and Collier Counties. The Commission has systematically begun to adopt these speed zone and safe haven rules. The Plaintiffs in the case, led by the Save the Manatee Club, have objected to some of the speed zones being proposed by the Commission staff. Ongoing rule making continues to take place. In fact, additional rules are expected to be adopted at the Commission’s next meeting in January 2003.WHERE DO WE GO FROM HERE?
Various marine interests have become convinced that the Save the Manatee Club and others’ principle goal is to severely limit pleasure boating in the state of Florida by making it more difficult to secure dock permits, marina authorizations, marine event approvals, etc. The economic data produced by the Marine Industries of South Florida shows that the annual favorable impact of the marine industry on Florida’s economy is approximately $14.1 billion. Included within this economic impact are 181,000 marine related jobs. Should the current round of regulations reduce this economic activity by 1%, it would cause the loss of 1810 jobs and approximately $141 million per year. If that reduction were 10%, it would involve losing 18,105 jobs and $1,410,000,000 per year. Moratoria on dock and marina construction as well as efforts to reduce the number of boats on the water could easily achieve a 10% negative economic impact.
A careful analysis of all the available data and information supports three observations:
1. The Florida manatee population is neither depleted nor is the population shrinking. All factual, synoptic, visual and anecdotal evidence points to a steady increase in the manatee population over the last 10 – 15 years. This increase in population should be acknowledged by the courts and state and federal agencies and used in making judgments about what rules need to be adopted.
2. All parties seem to agree that additional on-the-water law enforcement in selected areas designed to assure compliance with existing and to-be-adopted speed zones is the best long-term manatee protection mechanism. The marine industry interests are asking the 2003 legislature to use $13.1 million of the $22-$32 million in marina gas tax collections for additional on-the-water law enforcement and other water access items.
3. Additional Federal and State economic investments need to be made in Technological Devices capable of protecting manatees. It is difficult to believe that in the computer age where GPS can be used to identify the location of individual cars and persons that we cannot develop a GPS based set of devices designed to alert vessel operators when they are in the vicinity of manatees so that responsible vessel operators can avoid collision with this important species. Passive in-the-water listening devices also show promise for fixed base manatee protection.
Ideally all interested groups would work toward a regulatory system that will maximize protection of the manatee while minimizing the adverse impact on water access and Florida’s marine economy. The current litigation/regulatory approach will not achieve this goal.