Starving Sea Cows & the Legal Frameworks Meant to Protect Them

Photo by Maegan Luckiesh on Unsplash

By Alida B. Soileau

“A manatee was floating sideways, drifting as it stared helplessly up at her. ‘That happens when they are starving and lacking energy,’” said Monica Ross, a senior research scientist at the Clearwater Marine Aquarium. This is the reality of many manatees in Florida’s waters. They’ve run out of their primary food source, seagrass, and are starving to death. More than 1,000 manatees died in 2021,  far exceeding the record of 830 deaths in 2013.

State and federal officials have connected the upsurge in manatee deaths to “loss of sea grass [from algal blooms] in the Indian River Lagoon, a 156-mile estuary where manatees . . . seek warm water in winter months.” These algal blooms, which are caused by runoff from septic tanks, municipal water systems, pesticides, fertilizers, and more, block adequate sunlight from reaching seagrass, thereby killing it.

A single adult manatee needs to consume between 100 and 200 pounds of seagrass each day. The connection between manatees and seagrass is so well known that one of Florida’s seven species of seagrass is colloquially called “manatee grass.” Another of Florida’s seagrasses, Johnson's seagrass, which only grows in the Indian River Lagoon (the estuary most closely connected with the manatee deaths), is listed as a threatened species under the federal Endangered Species Act. Not only is the Florida manatee’s primary food source listed as threatened; the Florida manatee itself is also threatened.

What’s Going On In Florida?

While the issues of algal blooms and dying seagrasses have been “decades in the making,” the situation has reached a critical juncture; seagrass levels in the Indian River Lagoon are down nearly 90%. The situation is so dire that federal and state agencies are now feeding manatees.  This was a difficult decision, as “scientists have found that feeding wild animals can do more harm than good.” However, it’s a risk officials are willing to take, as Florida’s manatees are “already threatened with extinction, [and] have suffered catastrophic losses over the last year.” Feeding the manatees is problematic for several reasons. First, manatees will likely become more accustomed to humans, leading to an increase in manatee deaths from run-ins with boats. Second, feeding can “disrupt migration patterns, spread disease and lead to a cascade of other unintended consequences.” However, as this is a man-made problem, a man-made solution is arguably the only way forward.

Existing Regulatory Frameworks

Both the federal and state levels of government are empowered to mitigate destruction to manatees’ marine habitat. However, thus far, the government has failed to stop the recent population decline. Relevant federal laws include the Federal Marine Mammal Protection Act and the Clean Water Act (“CWA”).

The Federal Marine Mammal Protection Act outlaws “taking” marine mammals. In this context, the word “take” has a specific meaning: “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” The Act also states that “efforts should be made to protect essential habitats . . . from the adverse effect of man's actions,” but this language in the Act’s Declaration of Policy is merely predatory. Although the Act prohibits killing Manatees, it provides inadequate habitat protections.

Next, the CWA directs states to establish a total maximum daily load (“TMDL”) for pollutants. A TMDL is “the maximum amount of a pollutant that a water body can receive and still meet the water quality standards.” The TMDL must be estimated “at a level that would assure protection and propagation of a balanced indigenous population of . . . wildlife.” After estimating the TMDL, the state issues permits dictating the amount of an effluent a point source may discharge.

The TMDLs established for the Indian River Lagoon and related Banana River Lagoon serve to “establish the allowable loadings of phosphorus and nitrogen to the IRL [Indian River Lagoon] and Banana River Lagoon.” In conclusion, the quantities of phosphorus and nitrogen permitted by the TMDL should enable the Indian River Lagoon to remain a habitable environment for manatees. Clearly, something has gone awry.

Although the water conditions are poor, an enforcement mechanism exists. Florida has five water management districts that administer water quality programs, like the districts work towards compliance with TMDLs and other metrics.To enforce compliance, the Florida Department of Environmental Protection and water management districts can ask a judge to issue a warrant for the arrest of an offender. Yet, even with such a stringent and clear enforcement mechanism, the problems of excess nitrogen and phosphorus, and reduced seagrass, persist in Indian River Lagoon.

Policy Changes: Are They Too Little Too Late?

Several recent policy changes and proposals have the potential to mitigate the current crisis. First, Florida enacted the “Clean Waterways Act” in June 2020. The Act requires additional “documentation of fertilizer use by agricultural operations to ensure compliance with Best Management Practices.” Second, some Florida municipalities have voluntarily enacted county-wide bans on using phosphorus- and- nitrogen-containing fertilizers during summer months to prevent nutrient runoff into waterways. This is a meaningful step in the right direction. Third, the Army Corp of Engineers’ Comprehensive Everglades Restoration Plan includes a reservoir that will “capture, store and clean fertilizer-laden runoff from farms and development” before it reaches Indian River Lagoon. This reservoir is the first completed project of 68 planned to improve the everglades ecosystem. In addition, in September 2021, Florida’s governor allocated upwards of $53 million in funding to clean up Indian River Lagoon, the estuary most closely connected with the recent manatee deaths. The funds are for various projects, including removing septic tanks along the lagoon and updating sewage treatment plants. In all, these projects aim to reduce the lagoon’s excess phosphorus and nitrogen.

Further, the Manatee Protection Act of 2021 (“the Act”), introduced in the U.S. House of Representatives on August 6, 2021, would change the Florida manatee’s federal status from “threatened” to “endangered,” in recognition of the severity of the present situation. The U.S. Fish and Wildlife Service (“FWS”) downgraded the Florida manatee from “endangered” to “threatened” in 2017, when things appeared to be looking up for manatees.  However, the situation has since changed significantly. The number of recent deaths and their cause (lack of seagrass) suggest an ongoing population decline that is unlikely to improve in the near-term, as, “[i]t could take at least a decade for full recovery of seagrass, and that's a ‘best-case scenario,’” according to meeting notes between the Florida Fish and Wildlife Conservation Commission, the FWS, and other manatee experts. Reclassifying the manatee as “endangered” through the Act would denote the severity of the situation and may draw more attention and funding to the crisis.

The Clean Waterways Act, county-wide fertilizer bans, Army Corp of Engineers everglades restoration projects, and the cleanup of Indian River Lagoon, in addition to the proposed Manatee Protection Act, have the potential to bolster seagrass growth and restore manatee numbers. Whether the new legislation and programs will have their intended effect remains uncertain. Hopefully, the initiatives aren’t too little too late to protect Florida’s manatee population.