The Voice for Manatees Since 1981

Public Comments Processing Attn: Docket No. FWS-R4-ES-2015-0178 U.S. Fish and Wildlife Service Headquarters, MS: BPHC 5275 Leesburg Pike Falls Church, VA 22041-3804

April 7, 2016

Re: Comments on 12-Month Finding and Proposed Rule to Reclassify the West Indian Manatee from Endangered to Threatened under the Endangered Species Act.

Dear Director Ashe:

The US Fish and Wildlife Service (“Service” or “FWS”)’s 12-month finding and proposed rule to reclassify the West Indian Manatee from Endangered to Threatened1 contravenes the Endangered Species Act and implementing regulations and is an impermissible exercise of agency authority. The comments that follow are intended to supplement Save the Manatee Club (“SMC”)’s additional scientific and policy comments, as well as the comments submitted by counsel for SMC, Meyer Glitzenstein & Eubanks, LLP and joint comments of the over 11,000 supporters who signed on to SMC’s online petition, which was also submitted to the docket. SMC contends that the downlisting is premature and unwarranted at this time, and urges the Service to reconsider the proposed reclassification until such time as threats to manatees are controlled and the best available science warrants downlisting.

Save the Manatee Club

Save the Manatee Club is an award-winning national 501(c)(3) nonprofit, established in 1981 by singer and activist Jimmy Buffett and former US Senator Bob Graham. The organization represents 11,000 members and supporters throughout Florida and an additional 33,000 nationwide in efforts to protect endangered manatees and their aquatic habitat from threats posed by human activity, including habitat destruction and water quality degradation. It is with this mission in mind that we offer the following comments regarding the 12-month finding and notice of proposed rule to reclassify the West Indian Manatee from Endangered to Threatened (hereafter, “proposed rule,” “notice of proposed rulemaking”, or “NPRM”).

The Proposed Rule

The proposed rule is fatally flawed. The reclassification fails to comport with the plain language of the statute, does not demonstrate that threats to manatee survival are controlled or reduced, and does not rely on the best available scientific and commercial data. In particular, the Service fails to address increasing threats to habitat and inadequate existing regulatory mechanisms to protect the species, both within Florida and its wider Caribbean range. The Service impermissibly relies on synoptic survey counts instead of evaluating the five factors required by statute, and in so doing relies on the faulty assumption that existing threats will remain constant or diminish, though the best available scientific and commercial data indicate that the opposite is true. In particular, the Service’s failure to account for the imminent loss of artificial warm water habitat undermines the assumption that threats to habitat are controlled. Moreover, the recovery criteria laid out in the publicly reviewed Manatee Recovery Plan have not been met, a fact which the Service seems to dismiss out of hand. Lastly, if the Service proceeds with downlisting, it will be in derogation of its international obligations imposed under the Endangered Species Act.

500 N. Maitland Ave. • Maitland, FL 32751 • 407-539-0990 • Fax 407-539-0871 • 800-432-JOIN (5646) • www.savethemanatee.org

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1!81!Fed.!Reg.!1000!(Jan.!8,!2016).!

Save the Manatee Club looks forward to a time when manatees have recovered to the point where they are no longer endangered, but that time has not arrived, and we question why the Service wasted valuable time and manpower resources pursuing downlisting when there remains a great deal of real work to do to ensure the manatee’s long-term survival.

I. The plain language of the statute prohibits reclassification.

Under the Endangered Species Act (ESA), the term “endangered” means “any species which is in danger of extinction throughout all or a significant portion of its range.”2 A “significant portion of its range” has been defined through case law to include viability throughout its historical range.3

a) “In danger of extinction”

Manatees are in danger of extinction throughout their range. The International Union for the Conservation of Nature found that the West Indian manatee has a total population of less than 10,000 individuals,4 that figure is expected to decline at a rate of ten percent over the course of three generations due to habitat loss and other anthropogenic factors.5 The manatee is endangered throughout its range because threats to its survival are not controlled and are increasing.

The West Indian manatee is extinct or functionally extinct in many areas of its former range.6 The purpose of the Endangered Species Act is to recover species.7 8 Recovery is not simply slowing or even halting an extinction spiral, but reestablishing and ensuring long-term protection for the animal throughout its historical range. Increasing habitat fragmentation and reduced genetic diversity indicate that full recovery of the West Indian manatee remains elusive. Little to no interbreeding among populations occurs as herds become more isolated, while increased anthropogenic threats jeopardize the manatee’s continued existence in 84% of its current range and in a much higher percentage of its historical range. Indeed, it is only in Puerto Rico, Honduras, French Guiana, and parts of Florida where the manatee population is thought to be stable.9

In its report during the public hearing on the proposed downlisting in Orlando, FL on February 20, 2016, the Service presented a tortured definition of “endangered” as meaning “on the brink of extinction,” based on “internal legal analyses.”10 Presumably this statement referred to the Service’s guidance memo, “Supplemental Explanation for the Legal Basis of the Department’s May 15, 2008 Determination of Threatened Status for Polar Bears”11 (hereafter “polar bear memo”). This internal memo is not binding and the Service need not feel itself hamstrung by past poor decision-making founded on political expediency. Moreover, because of its explicitly limited intended application, this document has not been subject to general public notice and comment12, as required by statute13, because it was drafted as part of the agency’s response to an unrelated legal case regarding the listing status of the polar bear. The memo explicitly notes that the term “in danger of extinction” depends on “the complexity of biological systems and processes, the diversity of the life histories of individual species, and differences in the amount and quality !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2!16!U.S.C.!§1532(6)!(emphasis!added).! 3!Defenders(of(Wildlife(v.(Norton,!239!F.!Supp!2d.!9!(D.D.C.!2002).! 4!The!FWS!estimate!of!13,142!West!Indian!Manatees!worldwide,!a!count!which!the!Service!acknowledges!may!be!inaccurate!(in!some! cases!based!merely!on!the!personal!opinion!of!local!experts,!81!Fed.!Reg.!at!1003!Table!1!FN1;!synoptic!surveys!on!which!Florida! counts!are!based!are!“not!considered!to!be!reliable!indicators,”!Id.!at!1006.),!is!not!significantly!greater!than!the!IUCN!estimate.! 5!81!Fed.!Reg.!at!1005.! 6!81!Fed.!Reg.!at!1002,!1005.!! 7!US!Fish!and!Wildlife!Service,!Endangered(Species(Act(Basics!(Jan.!2013).!!Exhibit!A.!! 8!See(also!FWS!Guidance!Interpretation!of!‘in!danger!of!extinction!under!the!ESA’!(Dec.!22,!2010)!at!7,!available!in!the!Service’s! Endangered!Species!Act!Document!Library!(hereafter!“Polar!Bear!Memo”),!Exhibit!B.! 9!81!Fed.!Reg.!at!1005.!! 10!SMC!has!requested!that!a!copy!of!the!transcript!and!PowerPoint!presentation!for!this!hearing!be!placed!in!the!record,!and!in!the! alternative,!submitted!a!FOIA!request!on!March!9,!2016!requesting!the!same.!!SMC!hereby!requests!that!the!transcript!and! presentation,!when!they!are!available,!be!considered!a!part!of!the!formal!Administrative!Record,!along!with!comments!submitted!at! that!hearing.! 11!Polar!Bear!Memo! 12!Id.!at!1.! 13!16!U.S.C.!1533(h)!(stating!that!the!agency!“shall!provide!to!the!public!notice!of,!and!opportunity!to!submit!written!comments!on,!any! guideline”!used!in!the!implementation!of!the!Endangered!Species!Act).! of data to inform individual listing determinations, [which are] contextual and fact-dependent,” and the general interpretation is “subject to modification with its application to the particular facts at issue.”14

The memo claims to be merely a description of the Service’s habitual policy, but there is no way to verify this assertion and nothing to say that the agency did not cherry-pick cases most favorable to its desired outcome in the polar bear listing determination. In formulating its theory with regard to the polar bear, the agency did not need or intend “to adopt independent, broad-based criteria for defining the statutory term ‘in danger of extinction’.”15 There is no reasonable reading of the Endangered Species Act that would allow an interpretation that a species must be so far gone (“on the brink”) as to be nearly functionally extinct. At every point, the ESA favors conservation and a precautionary approach to species loss. It cannot be that the drafters intended the protections of the Act to only apply once a species is only hanging on to survival by a thread.

However, even under the guidelines promulgated in the polar bear memo, the West Indian Manatee qualifies as endangered. According to the memo, “to be currently on the brink of extinction in the wild does not necessarily mean that extinction is certain or inevitable, or even that it is more likely than not. Rather, a species can be on the brink of extinction indefinitely without becoming extinct.”16 The Service identifies this category of endangered species in its memo under Section IV: “species with still relatively widespread distribution that have nevertheless suffered ongoing major reductions in its numbers, range, or both, as a result of factors that have not abated.”17 As demonstrated below, manatees, though their range remains geographically broad, are increasingly threatened with habitat destruction, population fragmentation, and other factors, such as watercraft collisions, that have not abated that jeopardize the long-term viability of the species. As an example, the Service cites the red-cockaded woodpecker, which was a formerly common bird whose population was reduced as a result of habitat destruction and fragmentation.18 The woodpecker was considered an endangered species despite having shorter generational times and greater numbers than the Florida manatee. Similarly, contrast the manatee, whose population status is unknown or declining in 84% of its range, with the polar bear, whose “[then] present condition was stable or increasing in most of the populations….”19

Crystal River National Wildlife Refuge Manager Michael Lusk may have said it best, when, in response to citizens seeking reduced protections for manatees in the Refuge in 2013, “[the fact that manatees are recovering] is a testament to the fact that they have been protected. Saying they don’t need any more protection is like saying, Hey, our city is growing, so we don’t need any more traffic regulations, and we don’t need any more health codes.”20 The manatee remains endangered, and it is only through vigilant conservation efforts and dedicated resources that the species has made initial steps toward recovery in a small portion of its range.

b) “In all or a significant portion of its range”

In its proposed rulemaking, the Service stated that the West Indian Manatee’s range “includes the southeastern United States (primarily Florida), the east coast of Mexico and Central America, northeastern South America, the Greater Antilles…and parts of the Lesser Antilles, including Trinidad and Tobago.”21 Overall, the West Indian manatee is found in 20 countries, and has “an extensive but fragmented distribution,” is found “discontinuously” along the coasts of Mexico, Central, and South America, and is no longer found in the Lesser Antilles from the Virgin Islands to Grenada, except for rare sightings of vagrant individuals.22 Table 1 of the proposed rule, which lists population estimates and trends, states that the population is unknown or declining for all of the countries in which manatees are found, except for the United States, French Guiana, Honduras, and the Bahamas.23 “Stable” population findings in French Guiana !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 14!Polar!Bear!Memo!at!3.!! 15!Id.!at!1a2!(quoting!the!D.C.!District!Court’s!November!4,!2010!Memorandum!Opinion!and!Order!remanding!the!Final!Listing! Determination!for!the!Polar!Bear).! 16!Id.!at!3!(emphasis!added).! 17!Id.!at!6.!! 18!Id.!! 19!Polar!Bear!Memo!at!7.!! 20!Mel!White,!When(Push(Comes(to(Shove:(The(Florida(manatee(is(thriving(in(Kings(Bay,(and(so(is(tourism.((Therein(lies(the(problem,! National!Geographic!(April!2013),!Exhibit!C.!! 21!81!Fed.!Reg.!1002.!!! 22!Id.! 23!81!Fed.!Reg.!1002a1003.! and Honduras are based on estimates of a mere 100 animals in each country. The Bahamian population is estimated at just ten individuals.

Altogether, “population trends are declining or unknown in 84 percent of countries where manatees are found.”24 It defies logic for the agency to assert that the West Indian manatee is not in danger of extinction throughout a significant portion of its range. Conveniently, the Service never reaches this question, avoiding it altogether by concluding that, because the manatee is threatened in all of its range, the Service need not address whether it is endangered in a significant portion of its range. This policy is plainly counter to the logic and intent of the Act. Particularly with regard to a downlisting rulemaking, the Service must first consider whether the species remains endangered in all or a significant portion of its range, and only upon conclusion that the animal is not endangered in either all or a significant portion of its range may the agency retreat to an analysis of whether the species is likely to become endangered in all or a significant portion of its range for purposes of a threatened determination.25 In its final interpretation of the meaning of “significant portion of its range,” the agency states that, “if a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively.”26

II. Statutory and regulatory requirements for reclassification have not been met.

The ESA and its implementing regulations outline factors for listing, delisting, or reclassifying species.27 A species shall be listed or reclassified if the agency determines, “on the basis of the best scientific and commercial data available…that the species is endangered or threated because of one or a combination of the following factors: (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.”28 In order to downlist a species or population, the agency must apply these listing factors to assess whether threats to the species or population have been alleviated.29

a) The present or threatened destruction, modification, or curtailment of its habitat or range.

Throughout the entirety of its range, the West Indian manatee faces destruction, modification, and curtailment of its habitat. The best available scientific and commercial evidence indicates that development is an increasing threat both to Florida manatees in the southeastern United States and to Antillean manatees in the Caribbean and Central and South America where the manatee’s habitat is already extremely fragmented and disturbed. Suitable manatee habitat is threatened as poor water quality and development reduce seagrass coverage, and as natural and artificial warm water refuges become unavailable.

The Service acknowledges that “warm-water natural spring areas essential for the manatees survival are threatened by numerous factors, including diminishing spring flows, deteriorating water quality, and increasing human activities in and around spring areas,” and that development initiatives, such as dam construction, drainage of wetlands, mangrove destruction, and other habitat fragmentation “have altered manatee habitat significantly and thus affected the number of animals along the coast and their movements between fresh and saltwater areas.”30 Yet the Service provides no reassurance that these threats have been removed or mitigated sufficiently to assure the manatees’ survival.

FWS goes on to state that threats to manatee habitat include “loss of seagrass due to marine !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 24!81!Fed.!Reg.!1005!(emphasis!added).! 25!As!a!matter!of!policy,!the!public!and!the!scientific!community!have!not!had!the!opportunity!to!weigh!in!on!the!alterations!to!the! definition!of!“significant,”!which!was!substantially!altered!between!the!draft!and!final!iterations!of!the!codification!of!the!definition!of! “significant!portion!of!its!range.”!79!Fed.!Reg.!37578!(July!1,!2014).!Including!this!substantive!change!into!regulation!without!the! required!public!review!process!was!contrary!to!requirements!of!the!Act,!and!as!such!that!portion!of!the!regulation!should!not!be! considered!binding.!!It!is,!moreover,!an!unreasonable!interpretation!of!the!Act.! 26!79!Fed.!Reg.!37578,!37579!(July!1,!2014).! 27!16!U.S.C.!§1533(a);!50!C.F.R.!§414.11.! 28!16!U.S.C.!§1533(a)(1);!50!C.F.R.!§424.11(c)!(emphases!added).! 29!81!Fed.!Reg.!1014.! 30!81!Fed.!Reg.!at!1004.! construction activities, propeller scarring and anchoring, and oil spills; loss of freshwater due to damming and competing uses; and increasing coastal commercial and recreational activities…[and] human activities includ[ing] dredging, fishing, anchoring, eutrophication, siltation, and coastal development.”31 Most importantly, the proposed rule notes that, “all of these threats still remain.”32

Threats to the manatee’s habitat are even worse than the Service admits. Decades of water pollution from policies that favor development and agriculture have resulted in waterways choked with algae, massive fish kills, and extensive seagrass die-offs. In Florida, there are more than 2,700 water body segments on the statewide Comprehensive Verified List of Impaired Waters.33 The state’s delays and subsequent failure to develop sufficiently protective regulations for nitrogen and phosphorus pollution have resulted in increasing frequencies and intensities of harmful algal blooms throughout the state. According to a 2008 report, only two of forty-nine springs studied had nitrogen concentrations that were representative of background levels, while 73% of springs contained nitrogen in excess of the state water quality criteria.34 The Indian River Lagoon, North America’s most diverse estuary and a designated estuary of national significance, for example, has experienced recurring brown tide outbreaks, which have resulted in massive fish kills35, sea grass die-off events, and large unexplained manatee mortality events.36 Recurring blooms from 2011-2013 resulted in the loss of over 60 percent of the Lagoon’s seagrass coverage - over 47,000 acres37 -- much of which never recovered. As a result of a particularly intense harmful algal bloom in 2013, 118 manatees died.38

Figure 1: Fish Kill in the Indian River Lagoon, March 21, 2016.39

And matters have only gotten worse since. In 2012, the Florida Legislature, with the backing of the Brevard County Commission, repealed a law requiring septic tank inspections, leaving the 600,000 septic tank systems along the Indian River estuary to continue discharging virtually unregulated levels of nutrients into the Indian River lagoon system.40 Over 1 million kilograms of nitrogen enter the Indian River Lagoon from Septic Systems each year. 41 As a result of septic pollution and fertilizer runoff, the most recent brown !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 31!81!Fed.!Reg.!at!1015.! 32!Id.!(emphasis!added).! 33!FDEP,!Division!of!Environmental!Assessment!and!Restoration!“2014!Integrated!Water!Quality!Assessment!and!Florida”!(2014),! Exhibit!D,!and!Watershed!Assessments!List!available!at:!http://www.dep.state.fl.us/water/watersheds/assessment/aalists.htm.! 34!D.!Harrington!et!al.,!Florida(Springs(Initiative(Monitoring(Network(Report.!!FDEP!Division!of!Environmental!Assessment!and! Restoration!(2008),!Exhibit!E.! 35!See(e.g.,!FLSportsman!video!of!Indian!River!Lagoon!Fishkill!(March!24,!2016)!at!https://www.youtube.com/watch?v=Wsu8v1J4CMU.!! We!request!that!the!video!cited!here!be!considered!part!of!the!formal!Administrative!record!for!the!NPRM.!! 36!See(e.g.,!82!Fed.!Reg.!Table!2!at!1005;!See(also!FWC!Manatee!Mortality!Statistics!Database.!! 37!David!Guest,!Pollution(Killing(Manatees(at(Record(Pace,!Earthjustice!(Nov.!13,!2013),!Exhibit!F.! 38!81!Fed.!Reg.!at!1005,!Table!2;!FWC!Manatee!Mortality!Statistics!for!2013,!Exhibit!G.!! 39!Derrol!Nail,!Fox35!Reporter!via!Instagram.!March!21,!2016.! https://twitter.com/Fox35DerrolNail/status/712018942261383172/photo/1.! 40!Fred!Grimm,!Massive(fish(kill(makes(Florida(water(emergency(difficult(to(ignore,!Miami!Herald!(March!30,!2016),!Exhibit!H.!! 41!Greg!Allen,!With(Murky(Water(and(Manatee(Deaths,(Lagoon(Languishes.!!National!Public!Radio!(Sept.!26,!2013)!Exhibit!I!(quoting! Harbor!Branch!scientist!Dr.!Brian!Lapointe)! tide superbloom in the Indian River Lagoon has already resulted in one of the largest fish kills the region has ever seen, with over 65,000 pounds of dead fish having been already skimmed off the lagoon surface in two weeks, while officials warn that the lion’s share probably remains on the river bottom, where it sank and will decay, sucking what little oxygen remains out of the water.42

Manatees are likely to suffer, not only from the reduced oxygen in the lagoon, but from the loss of their primary food source as well.43 Seagrass in the Lagoon was already sparse, having not fully recovered from previous years’ blooms, and the severity of this bloom, if it continues as expected, is likely to wipe out what little remains, though officials cannot yet say what effects on the seagrass beds this bloom will have – the water is too murky for a survey.44 45 And with warmer temperatures and longer days on their way, the algae bloom is not likely to go away anytime soon.46

Upstream water management activities have resulted in high salinity and high nutrient conditions in Florida Bay that have resulted in widespread seagrass die-offs beginning in the late 1987 and continuing to present.47 The end of 2015 and beginning of 2016 have been especially bad for the Bay. The heavy rains that resulted in monumental discharges from Lake Okeechobee down the St. Lucie and Caloosahatchee Rivers, decimating those estuaries with nutrient pollution and turbid water conditions, would once have flowed south to replenish freshwater flows in the Everglades and Florida Bay.48 The disruption of the natural hydrogeology of the region has resulted not only in the sickening of the St. Lucie and Caloosahatchee estuaries and mass seagrass die-offs from pollution in those waters, but also in the creation of hypersaline conditions in Florida Bay by cutting off freshwater flows. In 2015, drought conditions resulted in salinity levels twice as high as that of seawater, triggering another large-scale seagrass die off.49

Moreover, the proposed rule states, “[w]ithin the southeastern United States, the potential loss of warm water at power plants and natural, warm-water springs used by wintering manatees is identified as a significant threat…. Natural springs are threatened by potential reductions in flow and water quality (due to unsustainable water withdrawals combined with severe droughts) and by factors such as siltation, disturbance caused by recreational activities, and others that affect manatee access and use of the springs. Power plants, which provide winter refuges for a majority of the Florida manatee population, are not permanent reliable sources of warm water…due to plant obsolescence, environmental permitting requirements, economic, pressures, and other factors.”50

As over 1,000 people each day move to Florida, making it the third most populous state in the nation, development increases, much of it along the coastlines. The population is expected to nearly double to 36 million by 2060, with corresponding changes in land use patterns.51 An additional 7 million acres will transition from rural and natural areas to urban uses. See Figure 2. More than 1.6 million acres of woodland will be developed, and wetland habitats will become increasingly isolated and fragmented, with detrimental effects on water quality and coastal habitat. Seventy-two percent of Floridians currently live or work in coastal areas, and coastal populations are expected to balloon to more than 26 million (more than the current population of all of Florida) by 2060.52 Coastal development increases human-manatee interactions and associated risks. Development also decreases water quality as a result of increased runoff from impervious surfaces and higher levels of nutrient pollution that can cause algal blooms, including red tide. These outcomes harm manatees directly and result in shading of seagrass beds and die off of submerged aquatic vegetation that manatees need to survive. More people along the coasts also means more boat traffic, as discussed in a later section.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 42!Id.! 43!See!Michael!D’Estries,!Florida’s(mass(fish(kill(is(a(nightmare(to(behold.!MNN!(Mar.!28,!2016)!Exhibit!J!(quoting!Dr.!Robert!Weaver,! Director!of!the!Indian!River!Lagoon!Research!Institute).!! 44!Jennifer!Gray,!Fish(Kill(in(Florida:(‘Heartbreaking(Images’(seen(for(miles,!CNN!(March!25,!2016)!Exhibit!K.!! 45!Jim!Waymer,!What’s(Next(for(the(Indian(River(Lagoon,!Florida!Today!(April!2,!2016),!Exhibit!L.!! 46!See!additional!photos!of!recent!fish!kill:!Outdoor360,!Heartbreaking(Photos(of(Thousands(of(Dead(Fish(Highlight(Mass(Devastation(at( Indian(River(Lagoon,(via!Florida!Wildlife!Federation!(Mar.!24,!2016),!Exhibit!M.!! 47!Roblee!et!al.!Salinity(Patterns(in(Florida(Bay:(A(Synthesis,!via!USGS!SOFIA,!Exhibit!N;!See(also!Koch!et!al.!Conceptual(model(of(seagrass( dieOoff(in(Florida(Bay:(Links(to(biogeochemical(processes,!!350!Journal!of!Experimental!Marine!Biology!and!Ecology!77!(2007)!Exhibit!O.!! 48!Kevin!Spear,!Florida(Coastal(Environments(are(Collapsing,!Orlando!Sentinel((Mar.!4,!2016;!updated!Mar.!31,!2016),!Exhibit!P.!! 49!Id.! 50!81!Fed.!Reg.!1015.! 51!Florida!Fish!and!Wildlife!Conservation!Commission,!Wildlife(2060!Report,!FWC!Special!Initiatives!(2010),!Exhibit!Q.! 52!Id.!!

Figure 2: Projected Land Use Change and Development in Florida, 2010 to 2060.53

As Florida grows and development increases, so does demand on Florida’s dwindling water supply.54 By the year 2030, fresh water consumption in Florida is expected to increase by 1.3 billion gallons per day, or 21%, over 2010 demand.55 See Figure 3. Existing water supplies are insufficient to meet that demand while maintaining non-consumptive beneficial uses, including environmental and habitat uses, and the state faces a projected 1 billion gallons per day water shortfall by 2030.56 Spring flows will inevitably continue to be drawn down, to the detriment of the aquatic ecosystems that depend on them. Natural warm water refugia are decreasing precisely when they are most needed by a recovering manatee population that must be relocated from their dependence on artificial warm water flows. The fact that these problems are the direct result of resource mismanagement and policy decisions further necessitates against downlisting. These problems are indicative of a complete failure at the state level to provide adequate regulatory mechanisms to protect manatees and manatee habitat, as required by downlisting Factor D and discussed later in these comments.

Figure 3: Projected Increases in Florida Water Demand57

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 53!Id.! 54!Jim!Turner,!Florida(Population(Over(20(Million,(Adding(Nearly(1,000(People(A(Day,!News!Service!of!Florida,!publ.!Space!Coast!!!! !!!Daily!(Dec.!28,!2015)!Exhibit!R.! 55!Florida!Department!of!Environmental!Protection,!Annual!Report!on!Regional!Water!Supply!Planning!(2014).!Exhibit!S.!! 56!Turner!(2015),!Exh.!R.! 57!FWC!Wildlife!2060,!Exh.!Q!at!17.!

On top of reduced natural spring flows that make up the manatee’s historical habitat and last remaining natural habitats, manatees are also threatened with the imminent loss of habitat from artificial warm water industrial sources. This habitat loss is identified as a “significant threat.”58 “In the past, some industrial sources of warm water have been eliminated due to plant obsolescence, environmental permitting requirements, economic pressures, and other factors.”59 Though manatees have been shown to be able to transition to less preferred sites during temporary power plant shut downs, in other instances closures have caused mortality.60

It is likely that these warm water sources will be lost within 40 years,61 at the outside. Indeed, owing to imminent Clean Air Act §111(d) regulations (sometimes known as the “Clean Power Plan”) and the imposition of Phase 2 of the Clean Water Act §316(b) rules regulating once-through cooling systems, combined with the availability of more affordable energy sources, it is likely that coal plants in Florida will close and those that do not shutter will transition to closed-loop cooling systems or other technologies that reduce warm water discharges. The compliance schedule for Phase 2 of the 316(b) rules provides a 45- month window from existing permit expiration dates.62 Impacts are therefore likely within a 5-15 year timeframe. This estimate is consistent with Laist and Reynolds’ original assessment that the majority of power plants used by manatees may be retired by 2025.63 The loss of artificial warm water habitat is imminent, considering the amount of planning and work that must be done to ensure a safe transition for the greater than 60% of Florida manatees that depend on artificial sources.64 This loss will be felt even more dramatically on the Atlantic coastline where natural springs only occur in the St. Johns River.65

The Marine Mammal Commission (MMC) points out that the loss of artificial warm water refugia is a foreseeable threat that must be considered prior to downlisting.66 The steady increase in manatee dependence on power plant outflows “has now skewed the distribution of manatees toward areas where natural warm-water refuges are absent or scarce.”67 If power plants are retired and warm-water outfalls are eliminated, the Commission warns, “a substantially increasing proportion of the manatee population may die of cold stress due to an inability to find alternative warm-water sources” and that if adequate management measures are not implemented to mitigate those effects, the West Indian manatee, if downlisted, could soon become endangered again.68 Specifically, the Commission recommends management actions to: “remove dams, locks, and other structures blocking manatee access to natural springs; dredging spring runs that have become silted-in by land runoff and now impede access to warm-water discharges; controlling recreational use of springs that displaces manatees; establishing minimum spring flow levels and preventing groundwater pumping for agricultural and domestic use that could reduce flow rates below that needed to support manatees; experimenting with the reintroduction of manatees to springs that are underused or no longer used by manatees; creating new passive thermal basins in southern Florida; acquiring and protecting springs that are currently privately owned; and monitoring manatee use of springs and other warm water refugia.”69 The Commission believes that implementing these management strategies and taking the time required for manatees to learn to use new sites will “likely take decades.” Downlisting may not legally occur until such time as these or similar management actions have been implemented to ensure adequate habitat for manatee survival.

Habitat destruction in the wider Caribbean has resulted in critically endangered manatee populations throughout much of its range. A study of manatee mortality in Brazil has noted that the majority of

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 58!81!Fed.!Reg.!1015!citing!USFWS!2007;!Laist!and!Reynolds!2004,!USFWS!2001.! 59!Id.!! 60!Id.!at!1016.! 61!Id.! 62!Christine!Tomichek,!Summary(of(FEPs(Final(316(b)(Rule(for(Cooling(Water(Intake(Structures.!Kleinschmidt!Group,!Exhibit!T;!! !!!!See(also!79!Fed.!Reg.!48300!(Aug.!15,!2014).!! 63!David!W.!Laist!and!John!E.!Reynolds,!III.,!!Florida(Manatees,(WarmOWater(Refuges,(and(an(Uncertain(Future,!33!Coastal!Management! 279!(2005),!Exhibit!U.!!! 64!75!Fed.!Reg.!1575!(Jan.!12,!2010)!(“nearly!twoathirds!of!the![Florida!manatee]!population!winters!at!industrial!warmawater!sites,! which!are!now!made!up!almost!entirely!of!power!plants”).!! 65!81!Fed.!Reg.!1016.! 66!Marine!Mammal!Commission!Sept.!2,!2014!comments!to!FWS!in!re:!Petition!for!Reclassification,!Exhibit!V,!at!5.! 67!Id.!quoting!Laist!et!al.!(2013).!! 68!Id.! 69!Id.!at!5a6.!! manatee strandings – 83.3% - were dependent calves.70 A review of the evidence indicated that the reason for such high perinatal mortality was likely a result of a lack of suitable habitat for pregnant females to give birth. The Jaguaribe River estuary has become heavily silted as a result of mangrove deforestation and shrimp aquaculture, making much of the sheltered estuary inaccessible to manatees seeking a calm place to give birth. As a consequence, calves are born in areas with strong winds and coastal currents.

In 2010, the Service found that expanding designated critical habitat for manatees was warranted, though precluded by other funding and resource management priorities.71 The Service arrived at this conclusion by considering the 2007 status review that Pacific Legal Foundation and Save Crystal River relied on in petitioning for downlisting, though the 2010 critical habitat finding also incorporated an additional three years’ worth of data. In its finding, the Service determined again that “[t]he loss of Florida’s warm- water habitats is one of the leading threats facing the manatee population.”72 In light of the 12-month finding that revisions to the Florida manatee’s critical habitat are warranted, it is not clear why that task remains undone while the Service pursues downlisting.

b) Over utilization for commercial, recreational, scientific, or educational purposes.

“Poaching remains a major threat to the manatee population outside of the Southeastern United States.”73 In parts of the Antillean manatee’s range, such as Guadaloupe, they have been hunted to extinction, while poaching, hunting, and direct takes continue in other areas of the range, including Honduras, Nicaragua, Puerto Rico, and Brazil.74

Manatees in the Southeastern United States are subject to a different kind of exploitation by commercial tour operators and harassment by private citizens. “These actions may disrupt manatee behaviors and cause them to leave important habitats.”75 Though the NPRM states that “numerous measures” are in place to prevent takes due to disturbance and that “well-enforced” sanctuaries keep people out of sensitive manatee habitat, it provides no justification for these claims. In fact, the Three Sisters sanctuary in Crystal River National Wildlife Refuge presents a striking counterpoint. Crystal River is one of the most important natural warm-water aggregation sites that remain available to manatees, but each year, hundreds of thousands of tourists swarm the springs, exacerbating already crowded conditions for manatees. Tour operators, perpetuating an unsustainable standard of up-close encounters, lack incentive to enforce anti-harassment policies, and swimmers and kayakers have been known to disturb manatees, touch manatees, and separate mothers and calves.76 Boats, swimmers, and kayaks also crowd the canal leading to the springs, preventing manatee ingress and egress.

c) Disease or predation

Low genetic diversity from decades of depressed population levels, coupled with reduced habitat and increased crowding conditions at warm water refuges, increases the risk of disease transmission. 77 Genetic diversity is especially low among the Antillean manatee.

A 2010 study of genetic diversity of manatees in Belize found that, while Belize has the largest breeding population of Antillean manatees in the wider Caribbean, the population has very low genetic diversity consistent with bottlenecked populations and high degrees of exploitation.78 Though Belize “remains one of the last strongholds for the species in [the Caribbean]…an overall negative trend in numbers was detected,”79 which is consistent with the Service’s findings that the population in Belize is unknown or declining.80 Hunter et al. further warn that “the consensus size of ~1000 individuals is well !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 70!Ana!Carolina!Oliveira!De!Meirelles,!Mortality(of(the(Antillean(manatee,(Trichechus(manatus(manatus,(in(Ceara(State,(northOeastern( Brazil,!!88!Journal!of!the!Marine!Biological!Association!of!the!United!Kingdom!1133,!1135a36!(2008),!Exhibit!W.! 71!75!Fed.!Reg.!1574!(Jan.!12,!2010).!! 72!Id.!at!1575.!! 73!81!Fed.!Reg.!at!1016.! 74!81!Fed.!Reg.!at!1016a17;!De!Meirelles!(2008),!Exh.!W,!at!1136.!! 75!81!Fed.!Reg.!at!1017.! 76!See(SMC!Comments!to!FWS!in!re:!Three!Sisters!Draft!EA!(Sept.!2,!2015),!Exhibit!X.!! 77!See!81!Fed.!Reg.!at!1022;!Hunter!et!al.,!Low(genetic(variation(and(evidence(of(limited(dispersal(in(the(regionally(important(Belize( manatee,!13!Animal!Conservation!592,!598!(2010),!Exhibit!Y.!! 78!Hunter!et!al.!(2010),!Exh.!Y!at!592.! 79!Id.! 80!81!Fed.!Reg.!at!1002a03,!Table!1.! below that recommended for the long-term genetic sustainability of a population.”81 The 1000 individuals figure is consistent with the estimates of the 12-month finding.

Loss of diversity, the study notes, “can ultimately lead to an ‘extinction vortex,’ or a cyclic reduction in population size, resulting in loss of the population.”82 Already, Belize manatees “have lower levels of diversity than other endangered or bottlenecked populations [citation omitted], including a koala population on French Island, Australia, which was colonized by only three animals.”83 Given that Belize has a larger population and more protections than the rest of the Antillean manatee’s range, populations in other countries in the region are likely to reflect even lower genetic variation. Diversity is essential to enable species to adapt to disease and environmental changes, and low genetic diversity makes both subspecies, but especially the Antillean manatee, subject to decimation in the event of an outbreak of disease.

The NPRM repeatedly states that the severity of the threat of disease is unknown, and cites “concerns about the manatee’s ability to rebound from a population crash should an epizootic event occur.” 84 The rulemaking therefore draws the conclusion that an absence of evidence of disease outbreaks means that impacts from disease in the future are unlikely. With new threats emerging, the mere absence of an issue in the past does not mean it will not occur in the future.

Moreover, it is foreseeable that disease outbreaks may increase in the near future. “[H]uman activities trigger ecologic and climactic changes that foster new and reemerging, opportunistic pathogens.”85 One so far unexplored concern is the possible introduction of new and invasive pathogens in ballast water as a result of the significant port expansions underway throughout Florida to accommodate increased shipping traffic from the Panama City canal and other cargo.

d) The inadequacy of existing regulatory mechanisms

i) Adequacy of protections in the wider Caribbean

The existing regulatory mechanisms to protect manatees are insufficient to justify downlisting. The Service acknowledges that conservation efforts “vary significantly from country to country” across the manatee’s range.86 Belize and possibly Brazil may have robust conservation programs, but no evidence of other conservation efforts is provided in the rulemaking, indicating that there is a dearth of existing conservation mechanisms to protect manatees outside the United States. Even where legal or programmatic protections are in place, the NPRM makes no effort to evaluate the efficacy and adequacy of protections. The five-factor test places the burden on the Service to affirmatively show that threats are controlled and that protections are adequate, not merely that they exist. The Service frankly admits that, “[a]lthough manatees outside of the southeastern United States are legally protected by these and other mechanisms, full implementation of these international and local laws is lacking, especially given limited funding and understaffed law enforcement agencies.”87

The Service discusses the need for the agency to reach out to other countries to assist in conservation efforts,88 as well as “the need for additional efforts…requir[ing] additional cooperative efforts into the foreseeable future.”89 Yet accomplishing this goal would be rendered more difficult by downlisting, as funds and interest are likely to be diminished if Service gives the misimpression that the species is doing well, thereby reducing the adequacy of existing protections in countries where the Service has already identified ongoing and additional needs for improved conservation efforts.

Even within US jurisdiction, protections are weak or can be anticipated to weaken as a result of the reclassification. For example, no federal manatee protection areas have been established for the territory of Puerto Rico, and the Puerto Rican Department of Natural Environmental Resources (PRDNER) lacks any !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 81!Hunter!et!al.!(2010),!Exh.!Y!at!593.! 82!Id.!! 83!Id.!at!597.! 84!81!Fed.!Reg.!1017.! 85!Gregory!D.!Bossart,!Emerging(Diseases(in(Marine(Mammals:(from(Dolphins(to(Manatees.(Exposures(to(viruses,(pollutants(may(lead(to( diseases,(sometimes(involving(immune(dysfunctions,(among(marine(mammals.!2!Microbe!No.!11,!544!(2007),!Exhibit!Z.! 86!81!Fed.!Reg.!1007.!!! 87!81!Fed.!Reg.!1018.! 88!Id.! 89!81!Fed.!Reg.!1018.! EXECUTIVE SUMMARY

A. Statewide Results

Some of the data that Florida PEER obtained from the Department suggests that the dismal results of 2013 have not continued into 2014. Indeed, there were a few more cases, more assessments and more collections for the Department as a whole. However, the increases were minimal overall and once the data was reviewed in detail it is apparent that the results are not indicative of a change of course; but rather, the draconian policies have continued with some programs still in a state of flux. When the results are compared with the Department’s performance just five years ago it is obvious that much work needs to be done if the ship is to be put back on a workable course. As we have in the past, we have included a Quick Look section to provide the reader with bottom line results for a host of categories at the state level.

The Department opened 234 cases in 2014, an 11% increase from the results in specific manatee2013. But area the regula resultstions are akin still to 85 Florida’s% lower Manatee than those Sanctuary posted Act for, andcalendar enforcement year 2010. of any The boating total 90 speed zonesnumber is limited of cases. fell in the Northeast and Central districts, more so in the Central District.

Statewide,ii) Adequacy most subcategor of protectionsies held theirin Florida own and consent orders, the most used enforcement tool, rose slightly. But there were declines in the number of final orders and amended consent Inorders. Florida, the removal of endangered status is likely to reduce protections. Already since the downlisting was proposed, efforts have been undertaken at the state and local levels to remove manatee protections, and Inno spite federal of theprotections modest improvementexist to fill the in imminent 2014, the gap. overall Florida picture is currently remains at bleak. the mercy Over ofthe the least environmentally friendly administration that perhaps the state has ever seen, and some are concerned past 8 years the Department’s performance, vis-à-vis the total number of cases per year has fallen91 that the Scott Administration may be especially susceptible to capture by moneyed special interest groups. 92 Enforcementprecipitously: of environmental violations is at its lowest point in history.93 See Figure 4. According to preliminary analyses by the Public Employees for Environmental Responsibility (PEER), 2015 data shows even further reduction in Department of Environmental Protection enforcement efforts.

Total Number of Cases: 2007--2014 1800 1600 1400 1200 1000 800 600

Numberof Cases 400 200 0 2007 2008 2009 2010 2011 2012 2013 2014 Year 1525 1526 1501 1587 1147 663 210 234

Figure 4: Number of environmental enforcement cases initiated by the Florida Department of Environmental Protection, 2007-2014.94

A. Failure to protect habitat

The state displays a policy of delaying needed protections,1 and when forced to act, developing inadequately protective rules. For years, the state declined to implement numeric nutrient criteria for Florida’s waterways, and only was compelled to do so after the federal Environmental Protection Agency began taking steps to promulgate its own minimum standards for nutrient pollution in Florida’s waters. In finally issuing its own regulations, the rules themselves provided for enforcement and pollution reduction delays by implementing a multi-step listing and verification process prior to requiring TMDL development. The growth of nuisance algae in Florida’s springs and the brown tide event in the Indian River Lagoon are known to be strongly influenced by anthropogenically-derived nutrients. High levels of nutrients have also been implicated in increasingly severe and frequent red tide events. The harmful algal blooms that result from high nutrients can shade and harm seagrass, result in low dissolved oxygen conditions that kill fish and other sea life, and sometimes produce toxins that directly endanger marine life.

The state’s regulatory failures therefore directly impact manatees and manatee habitat. The unusual !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 90!81!Fed.!Reg.!at!1008.! 91!Alan!Farago,!On(Florida’s(Massive(Fish(Kills,(Voters(are(Responsible,!Huffington!Post!(Mar.!23,!2016),!Exhibit!AA.!See(also,!Ron! Littlepage,!Environmental(issues(put(a(hit(on(Florida(tourism,!Florida!TimesaUnion!(Mar.!22,!2016),!Exhibit!BB.!! 92!See(also!Ed!Killer,!Dead(fish(causing(dread,!TC!Palm!(Mar.!22,!2016)!Exhibit!CC!(lamenting!constant!barrage!of!environmental! catastrophes!juxtaposed!against!doanothing!lipaservice!politicians).!! 93!Public!Employees!for!Environmental!Responsibility,!Report!on!Enforcement!Efforts!by!the!Florida!Department!of!Environmental! Protection!(2014),!Exhibit!DD.!! 94!Id.!! mortality events in the Indian River Lagoon95 are a result of unregulated septic sewer systems, relaxed fertilizer ordinances and poor agricultural nutrient management. Current conditions in the northern Lagoon exactly mimic those in 2013,96 when Dr. Brian LaPoint hypothesized that the Lagoon had reached a tipping point where there would be recurring blooms and long-term consequences for the ecosystem.97

Just to the south, the waters of the St. Lucie river are the tarnished brown of an oil slick as a result of polluted discharges from Lake Okeechobee being released to the Atlantic and Gulf waters through the St. Lucie and Caloosahatchee Rivers. The water in the lake is high in nutrients as a result of an agricultural irrigation management process called backpumping, whereby agricultural landowners flood their fields, in an area known as the Everglades Agricultural Area or EAA, and then reverse pump the water back into the large lake, along with large quantities of fertilizer. Historically, when rainwater filled the lake, the water would overflow the banks and move south to the Everglades, where it would replenish water resources. However, alterations to the region’s hydrogeology mean that, during periods of heavy rain, the Lake now threatens to overtop its banks and endanger downstream developments. To avoid flooding, the US Army Corps of Engineers releases the excess water into the St. Lucie and Caloosahatchee, resulting in tannic and algae clouded waters mixing with the normally clear waters of the receiving estuaries. See Figure 5.

Figure 5: Polluted fresh water from releases from Lake Okeechobee near shore reefs adjacent to Stuart, FL and Jupiter Island.98

So far in 2016, the Corps has authorized a discharge of 85 billion gallons of water to the St. Lucie River.99 Repeated discharges of this nature decimate the estuaries, and cover the oyster and seagrass beds with layers of ooze.100 The Scott Administration had the opportunity – using Amendment 1 conservation funds ratified by over 75% of Florida voters in 2014 – to purchase conservation lands south of the lake to store and treat the water before sending it south to restore the Everglades, but opted not to do so. The nonprofit law firm Earthjustice has filed multiple lawsuits over the past two decades to force the state to develop an alternative treatment and management solutions to the Lake Okeechobee discharges, but have faced opposition from Florida’s leaders in and out of court.101 The state’s continued inability or unwillingness to resolve the problems associated with the Lake Okeechobee discharges is emblematic of the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 95!Discussed!supra.!! 96!Allen!(2013),!Exh.!I.!! 97!Id.!! 98!Jacqui!ThurlowaLippisch/Jacquithurlowlippisch.com!via!David!Guest,!South(Florida’s(Tourist(Season(From(Hell.!!Earthjustice!(Mar.!2,! 2016)!Exhibit!EE.!! 99!Alex!Hagan,!Florida(Congressman(introduces(bill(to(decrease(Lake(Okeechobee(discharges.!WPTV!(Mar.!18,!2016),!Exhibit!FF.!! !!!!See(also!video!at!story.!! 100!Spear!(2016),!Exh.!P.!! 101!Guest!(2016)!Exh.!EE.!! state’s overall failure to adequately address the various environmental challenges Florida currently faces.102 The damage to the St. Lucie and Caloosahatchee estuaries and the state’s failure to control the resulting harm threatens manatees in these areas.

Existing protections are also inadequate to protect water supply in springs and rivers to ensure that flows are sufficient for designated environmental ecosystem uses, including use as manatee habitat. Spring flows must be increased and navigational impairments removed so that manatees may once again inhabit those areas of their historical range, but the state is taking the opposite approach by continuing to issue consumptive use permits (CUPs) in excess of established Minimum Flows and Levels (MFLs), and in establishing insufficiently protective MFLs to begin with. MFL determinations have allowed additional flow reductions from historical and current diminished levels in the Chassahowitzka, Weeki Wachee, and Homosassa Waterways, and the model on which the water management districts rely in setting MFLs is deeply flawed.103 State lawmakers are also aggressively pushing for the development of “alternative water supplies,”104 which, despite their appellation, risk further depletion of the aquifer and reduction of spring flows by allowing withdrawals from the Lower Floridan Aquifer, which in much of the state is connected to the Upper Floridan Aquifer that feeds Florida’s spring systems. Save the Manatee Club has worked diligently to protect both water quality and flows in manatee habitat,105 but state officials have demonstrated that they have neither the willingness nor the ability to adequately resolve Florida’s imminent water crisis.

The State’s failure to address issues of water quality and quantity should not be surprising, however, given that this is the same Administration that prohibited employees from using the world “climate change,”106 going so far as to require scientists to delete the term from state reports and placing employees on leave for using the term, and ultimately, dismissing the DEP attorney who objected to the policy and blew the whistle to the media.107 108 109 (Scott has also banned the terms “global warming” and “sustainability.”110) Given the Scott Administration’s failure to even acknowledge that climate change is occurring, or to allow the word spoken by agency officials, the Service cannot reasonably conclude that existing regulations are adequate to protect manatees from its uncertain effects.

Florida state regulations are inadequate to protect manatee habitat. Water quality and quantity are both insufficiently protected, and seagrass, natural springs habitat, and manatees are directly threatened as a result.

B. Failure to protect manatees directly

In addition to inadequate protections for manatee habitat, there are already direct attacks on protections for manatees themselves. Anti-manatee factions have taken the proposed downlisting as an opportunity to proceed full-steam ahead with removing local and state protections.

On January 12, 2016, a mere four days after the Service released the NPRM to downlist manatees, the Brevard County Commission considered a resolution to support “efforts to amend the Florida Manatee Sanctuary Act,” stating that the Act is “saddled…with requirements that focus too much effort on speed !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 102![Florida!Commissioner!of!Agriculture]!Putnam!meets!an!angry!crowd!over!the!Indian!River!Lagoon!(actually!Lake!Okeechobee! discharges!in!Martin!County!just!south!of!the!Lagoon).!!https://www.youtube.com/watch?v=2LWenTwa9o8&feature=youtu.be.!!SMC! asks!that!this!video!be!considered!a!part!of!the!formal!administrative!record.!! 103!Howard!T.!Odum!Florida!Springs!Institute,!Comments!Re:!Establishment!of!MFLs!for!the!Gum!Slough!(Feb.!25,!2016)!Exhibit!GG.!! 104!Turner!(2015),!Exh.!R!(quoting!FL!Agricultural!Commissioner!Adam!Putnam).!!See(also!SMC!comments!on!the!Central!Florida!Water! Initiative,!(Aug.!2015)!Exhibit!HH.! 105!See(e.g.,!SMC!Comments!on!Kings!Bay!TMDL!(2013);!Recommendations!to!the!Select!Committee!on!the!Indian!River!Lagoon!and! Lake!Okeechobee!Basin!with!regard!to!the!Lake!Okeechobee,!Indian!River!Lagoon,!and!Caloosahatchee!systems!(2013);!as!well!as! comments!on:!Lower!Santa!Fe!and!Ichetucknee!MFL!(2014);!Volusia!Blue!Spring!TMDL!(2013);!the!South!Florida!Water!Management! District!Regional!Water!Supply!Plan!(2015);!Silver!Spring!BMAP!(2015);!Springs!Coast!Basin!TMDL!(2015);!TMDL!prioritization!(2015);! State!Surface!Water!Quality!Standards!(2015);!and!MFLs!for!Gum!Slough!(2016)!Together,!Exhibit!II.!!! 106!Amy!Sherman,!FactOchecking(Rick(Scott(on(the(environment(and(seaOlevel(rise,!Politifact!Florida!(Mar.!11,!2015)!Exhibit!JJ.!! 107!Terrance!McCoy,!Fla(scientists(told(to(remove(words(‘climate(change’(from(study(on(climate(change.!Washington!Post!(Mar.!10,! 2015),!Exhibit!KK.!! 108!See(also,!Tristram!Korten,!Gov.(Rick(Scott’s(ban(on(climate(change(term(extended(to(other(state(agencies.!Florida!Center!for! Investigative!Reporting,!publ.!Miami!Herald!(Mar.!11,!2015)!Exhibit!LL.!! 109!Tristram!Korten,!In(Florida,(Officials(ban(the(term(‘climate(change’.!Florida!Investigative!Reporting,!publ.!Miami!Herald,!(Mar.!8,! 2015)!Exhibit!MM.!! 110!Doyle!Rice,!Fla.(Gov.(bans(the(terms(climate(change,(global(warming,!USA!Today!(Mar.!9,!2015),!Exhibit!NN.!! zones and permitting.” 111 The requested amendments would give local governments the power to “redress potential harms caused by regulation, and to petition the Fish and Wildlife Commission for changes to regulation [sic.], including Manatee Protection Plans and protection efforts,” and asks for a response to a previous Brevard County Commission resolution to create “reasonable” speed channels, restore water sports areas, and analyze the effectiveness of speed zones. The resolution “[s]upport[s] the reclassification of the Florida Manatee by US Fish and Wildlife Service” in order that the County might “formally petition the [FWC] to immediately begin rule-making procedures to remove unreasonable speed restrictions throughout the county….”112 The resolution continues, stating that, “[i]n the event that FWC and FWS fail to comply with this Resolution, the County will introduce a county ordinance that law enforcement officials within [its] jurisdiction shall no longer enforce either state or federal speed restrictions that are not approved by the Local Rule Review Committee.”113 Meanwhile, Brevard County remains among the top two counties for annual manatee watercraft deaths.114 115 Collier County is also considering reduced protections and revisions to its manatee zones.116 Miami-Dade County has long been in the process of revising and updating its MPP, but preliminary drafts indicate that the final result will be a weakened and insufficiently protective plan.117

The “efforts to amend the Florida Manatee Sanctuary Act” that the Brevard Commission’s Resolution refers to is a bill in the state legislature that was drafted and pushed by the speed boat organization Citizens for Florida’s Waterways.118 Though later toned down,119 the original bill as proposed would have severely diminished manatee protections statewide.120

For example, the amendments would have given the Local Rule Review Committee (LRRC) virtually complete authority on local speed zone ordinances, while removing the requirement that LRRC representation be balanced between boating interests and manatee conservation advocates. The bill would have immediately reduced Brevard County speed zones and only permitted new rules in areas where the manatee population was already in decline. The proposal would have prohibited FWC from commenting on permit applications if the federal Fish and Wildlife Service did not comment, and would have removed FWC’s ability to enforce manatee protections promulgated by other agencies. One of the more egregious provisions of the proposed amendment would have required FWC to increase allowable speeds in marked channels and watersports areas to at least 25 miles per hour by the end of 2016, unless five or more FWC Commissioners overruled the speed increase. The bill would allow counties to form LRRCs to evaluate Manatee Protection Plan (MPP) and speed zone effectiveness, while actually requiring FWC to contract with Citizens for Florida’s Waterways for a manatee speed zone effectiveness study121 “with the goal of eliminating zones that are not determined to reduce manatee mortality caused by higher speeds.” The amendments would also undermine MPPs by removing requirements for counties to incorporate boat facility siting plans into their comprehensive management plans, would remove permitting requirements for docks less than 500 square feet in designated Outstanding Florida Waters (OFWs) for structures constructed before January 2015 or less than 1000 square feet for those constructed on or after January 1, 2016, and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 111!Res.!No.!16a003,!Supporting!the!Health!of!the!Indian!River!Lagoon!by!Encouraging!Efforts!to!Amend!the!Florida!Manatee!Sanctuary! Act.!Brevard!County!Comm'n!(Jan.!12,!2016).!As!proposed,!Exhibit!OO.!Passed!in!slightly!modified!form,!Exhibit!PP.!! 112!Brevard!Resolution!Exh.!OO!(Emphasis!added).! 113!Id.!(Emphasis!added).! 114!FWC!Mortality!Statistics!Online!Database!! 115!See(also!Dave!Berman!and!Jim!Waymer,!Commissioner:((Boat(speed(zones(to(protect(manages(‘archaic’,!Florida!Today!(January!7,! 2016)!(citing!proposed!downlisting!as!support!for!proposed!county!resolution),!Exhibit!QQ.! 116!See!FAR!notice,!68Ca22.023!Collier!County!Zones!(Feb.!26,!2016),!Exhibit!RR;!and!email!notice!regarding!Collier!County!boating!zones! (March!31,!2016),!Exhibit!SS.!! 117!See!SMC!Comments!on!MiamiaDade!Draft!MPP!Revisions!(Dec.!17,!2015),!Exhibit!TT.! 118!Proposed!H.B.!to!Amend!the!Florida!Manatee!Sanctuary!Act,!379.2431!Fla.!Stat.,!2016!Leg.,!Reg.!Sess.!(Fla.!2016),!Exhibit!UU.!! 119!HB1273/BS1506,!Amendments!to!the!Florida!Manatee!Sanctuary!Act,!2016!Leg.,!Reg.!Sess.!(Fla.!2016),!Exhibit!VV.!! 120!SMC!Summary!of!Bill!as!Originally!Proposed,!Exhibit!WW.!! 121!As!the!FWS!is!aware!from!its!own!NPRM,!there!are!already!a!number!of!peerareviewed!scientific!studies!that!conclude!that!speed! zones!are!indeed!effective!in!reducing!manatee!mortality!from!watercraft!impact.!81!Fed.!Reg.!at!1020.!!Moreover,!as!one!commenter! pointed!out!at!the!Brevard!County!Commission!Meeting,!a!more!sensible!policy!would!be!to!conduct!a!study!before!removing! protections,!rather!than!the!other!way!around.!!See!Brevard!County!Commission!Board!Meeting!(video)!(January!12,!2016)!at! approximately!2h45m,!available!at:!http://brevardcountyfl.iqm2.com/Citizens/Detail_Meeting.aspx?ID=1383.!!We!request!that!the! video!become!a!formal!part!of!the!Administrative!Record!in!this!NPRM.!!At!approximately!2h33m,!one!commenter,!a!longtime!public! servant!discusses!how!she!was!replaced!after!expressing!proaconservation!views!to!a!colleague,!providing!further!evidence!of!the!proa development,!antiaenvironment!approach!that!is!dominant!in!the!state!of!Florida.!!!At!approximately!3h38m,!the!sponsoring! Commissioner!intimates!a!future!where!he!anticipates!manatee!hunting.! would allow installation and repair of private docks, piers, and recreational docking facilities in manatee habitat without a permit.

The above litany is not even a complete list of the bill’s attacks on manatee protections. Such are the demands of the anti-manatee groups, who wield substantial political power at the local and state levels. The removal of federal endangered status increases the likelihood of similar bills gaining traction to dismantle manatee protections in the near future. In 2012 after the establishment of year-round federal protections for manatees in Kings Bay, a group122 petitioned the Florida Fish and Wildlife Conservation Commission (FWC) to remove all state speed zone limits in the surrounding waterways and to prohibit state law enforcement from enforcing speed zones in federally designated refuge areas.123 124

The Kings Bay/Crystal River system that serves as home to the largest population of overwintering manatees in Florida presents a clear case study of state and local government inadequacy. The approximately 70 spring vents that feed Kings Bay and Crystal River in Citrus County, Florida have flow rates that have declined 58% from historical levels.125 Water clarity, which once allowed visibility for hundreds of feet, has declined to less than 20 feet in much of the Bay. Decreased flows have led to increased salinity and a proliferation of both planktonic and benthic algae that have overtaken the native eelgrass. The causes of the Bay’s decline are well understood, yet action to restore the system has been slow. The Florida Department of Environmental Protection and the Southwest Florida Water management District have spent upwards of 26 years developing a plan to restore the waterway, while simultaneously the District has continued to issue consumptive use permits for urban and agricultural uses, and Citrus County has continued to condone the contamination ground and surface water with land application of sewage waste, urban and agricultural fertilizer use, and the operation of approximately 41,000 septic systems.126 While the state and local governments keep promising action, clarity, spring flow, and seagrass coverage have decreased to all-time lows. This style of failed resource management in one of their most important habitats is not conducive to manatee protection.

Lastly, as evidence in support of the proposed reclassification, the Service cites to “recently adopted new protection areas in western Pinellas County (68C-22.016).”127 SMC would like to point out that those regulations were weakened as a result of a rule challenge by special interest boating groups, represented once again by the Pacific Legal Foundation (PLF), the same deregulation-oriented law firm who filed the downlisting petition on behalf of Save Crystal River.128 Save the Manatee Club attempted to intervene on behalf of FWC,129 but the administrative law judge withheld ruling on SMC’s petition while PLF and FWC brokered a settlement agreement excluding two manatee areas from inclusion in the final rule. If FWS is looking to hold up an example of protective state action to conserve manatees, it should look elsewhere.

C. Inadequate protections provided by the federal government

Federal government protections are also inadequate to address existing gaps, and recent trends in the Service’s decisionmaking indicate that manatees may be in further danger of a relaxation of remaining protections. The Fish and Wildlife Service has been accused of making Endangered Species Act decisions based on political expediency rather than the best available science. The Service under the Obama Administration has delisted more species than during any other Administration, and has stated its intention to delist more species than all previous administrations combined.130 A report by the Union of Concerned Scientists has found that 73 percent of FWS employees think there is an inappropriately high level of consideration of political interests in agency decisionmaking. Figure 6.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 122!Save!Crystal!River!–!the!same!group!that!filed!the!Petition!to!Downlist!that!triggered!this!rulemaking.! 123!Final!Order!on!Petition!to!Initiate!Rulemaking,!In!Re:!Petition!of!Save!Crystal!River,!Inc.!Case!No.!12a0022!(FWCC!2012),!Exhibit!XX.! 124!See(also(Allen!et!al.,!The(people(vs.(the(Florida(manatee:(A(review(of(the(laws(protecting(Florida’s(endangered(marine(mammal(and( need(for(application,!102!Journal!of!Ocean!&!Coastal!Management!40!(2014),!Exhibit!YY!(chronicling!SCR’s!efforts!to!undermine! manatee!protections!in!Kings!Bay!and!Crystal!River).! 125!Howard!T.!Odum!Florida!Springs!Institute,!Kings!Bay/Crystal!River!Springs!Restoration!Plan!(Feb.!2016)!Exhibit!ZZ.!! 126!Id.!! 127!81!Fed.!Reg.!1009.! 128!Thomas(v.(FWC!Case!No.!15a004435RP!(Fla.!Div.!of!Admin.!Hearings,!2015)!(settled!out!of!court).!! 129!Thomas(v.(FWC!Case!No.!15a004435RP!(Fla.!Div.!of!Admin.!Hearings)!filed!Aug.!28,!2015,!Exhibit!AAA.!! 130!US!Fish!and!Wildlife!Service,!Press!Release:!!US(Fish(and(Wildlife(Service(Proposes(Delisting(Yellowstone(Grizzly(Bear(Due(to(Recovery! (March!3,!2016)!Exhibit!BBB;!!Corbin!Hiar,!Endangered(Species:(Obama(admin(poised(to(break(delisting(record,!E&E!Publishing!(May!29,! 2015)!Exhibit!CCC.! In your opinion, how appropriate is the level of consideration of political interests at [the agency]?

80 Too High 70 About Right Too Low 60 Don’t Know 50

40

30

20 Percent of Responses 10

0 CDC FDA FWS NOAA n=1227 n=1426 n=826 n=1738

Many scientists felt that too much consideration was given to political interests at their agencies. This was particularly true at the FWS where 73 percent of respondents reported the level of consideration of political interests was “too high.” FWS respondents also noted that interference can come from the legacy of previous administrations afecting current work.

Figure 6: Scientists believe there is too much focus on politics in agency decisionmaking.131

According to a study by the Center for Biological Diversity, the current Administration has also adopted a policy of frequently reducing protections for threatened species through the issuance of “4d” rules, which exclude certain activities from being subject to Endangered Species Act restrictions.132 Often, the excluded activity is the primary threat to the species, as in the case of the northern long-eared bat or the polar bear. SMC is justifiably concerned, therefore, that the Service may undertake to exclude activities such as boating or marina construction from ESA take prohibitions, as they have already been requested to do in comments filed by boating activists.133

In its notice of proposed rulemaking, the Service touts its “programmatic consultation procedures” and the use of the “effect determination key with the U.S. Army Corps of Engineers and State of Florida (the ‘Manatee Key’)” and has concluded that “these procedures constitute appropriate and responsible steps to avoid and minimize adverse effects to the species and contribute to recover of the species.”134 However, the manatee key and permits issued pursuant to its guidance fail to consider the cumulative impacts of all permits, dredging, and watercraft facilities on manatee habitat, distribution, behavior, and mortality. SMC has consistently attempted to redress this failing with the Service and with the Corps. The Service must assess impacts not only one at a time as they related to threat management hurdles, but together, where the additive effects of all threats are considered as the backdrop against which manatee survival is framed.

The Fish and Wildlife Service has repeatedly said that downlisting will not result in decreased protections, a sentiment that has been echoed by Petitioners. But if that is the case, then why downlist? The Pacific Legal Foundation, in a moment of candor, has admitted that the reasoning behind downlisting would indeed be to create the opportunity to alter or decrease regulations to issue permits for otherwise restricted activities.135 Remaining protections that still apply to threatened species are the target of a yet another petition by the Foundation.136 Actions by PLF and other far right activists take direct aim at the Endangered Species Act and the species it protects. PLF and Save Crystal River will not relax their efforts until manatee protections are dismantled entirely. A threatened determination would place the manatee in the groups’ crosshairs, both with regard to their efforts to remove local and state protections as well as

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 131!Union!of!Concerned!Scientists,!Progress(and(Problems:(Government(Scientists(Report(on(Scientific(Integrity(at(Four(Agencies!(2015),! Exhibit!DDD!at!8,!Fig.!4.! 132!Sanerib!et!al.,!Lethal(Loopholes:((How(the(Obama(Administration(is(Increasingly(Allowing(Special(Interests(to(Endanger(Rare(Wildlife,! Center!for!Biological!Diversity!(Jan.!2016),!Exhibit!EEE.!! 133!Comment!ID!FWSaR4a2015a0178a0477.!!! 134!81!Fed.!Reg.!1021.! 135!Alan!DeSerio!and!Christina!Martin,!OpOed:(Rethink(protection(levels(for(Florida’s(manatees,!Pacific!Legal!Foundation!(Mar.!6,!2013),! Exhibit!FFF.!! 136!Jonathan!Wood,!PLF(petition(challenges(illegal(Endangered(Species(Act(Regulation,!Pacific!Legal!Foundation!Liberty!Blog!(March!15,! 2016),!Exhibit!GGG.!! under their overall assault on all threatened species with their latest petition.

The federal government lacks authority to ensure state and local manatee protections. Federal regulations currently only give the federal government the authority to establish protection areas as sanctuaries or refuges,137 and makes it a federal prohibition to violate state manatee protection regulations.138 However, in the even that the state does remove any protections, the federal government will be left with little authority. Therefore, at the very least, prior to any downlisting, the Fish and Wildlife Service must undertake rulemakings to federalize existing Manatee Protection Plans and manatee speed zones, and must commit to a viable warm water contingency plan that includes spring flow restoration and pollution reductions in manatee habitat.

e) Other natural or manmade factors affecting its continued existence

The great irony of the timing of the proposed downlisting is that 2016 is already looking like one of the worst years on record for manatees, with record rates of watercraft collision mortality, red tide on the Southwest coast of Florida, and brown tide and fish kills in the Indian River Lagoon system as bad or worse than that of 2013.

i) Watercraft Collisions

According to the NPRM, watercraft collisions are on the rise throughout the manatee’s range, including in South America where motorboats are becoming more popular and abundant.139 “Within in the United States, watercraft-related deaths have been identified as the most significant anthropogenic threat to manatees in both Florida and Puerto Rico.”140 “The primary conservation action in place to reduce the risk of manatee injury and death from watercraft collisions is a limitation on watercraft speed.”141 This statement is particularly significant in light of the previously discussed state and local efforts to reduce speed zone protections in the wake of the proposed delisting. Given that both boat sales and boating collisions are on the rise, and manatee zones are at risk of reduced protections, the risk of watercraft collisions cannot reasonably be considered to be a controlled threat.

As the economy recovers from the 2008 recession, both coastal development and boat sales are again on the rise, increasing the likelihood of manatee-boat interactions. Florida already has over 914,535 boats, more than any other state in the country,142 and according to the National Marine Manufacturers’ Association, boat sales in 2016 are expected to exceed pre-recession levels.143 2016 is also on track to break records in terms of manatee mortality from boat strikes, with 20 confirmed watercraft mortalities already by mid-February (see Table 1). At the current rate, watercraft deaths will surpass the previous annual record of 97 deaths in 2009 by early September of this year. Given that it is not yet even the busy boating season, these numbers are likely to be even grimmer by midsummer.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 137!50!C.F.R.!§17.103(a);!50!C.F.R.!§17.108.! 138!50!C.F.R.!§17.104(c).!! 139!81!Fed.!Reg.!1020.! 140!Id.! 141!Id.!!! 142!Bruce!Ritchie,!Scott(signs(pair(of(bills(dealing(with(boating(issues,!Politico!Florida!(Mar.!24,!2016).!! 143!Tara!Lambropoulous,!Boating(Industry(Outlook(Continues(to(Improve,(Says(New(GE(Capital(Survey.!!Business!Wire!(Feb.!25,!2015);! Christina!Meister,!Recreational(Boating(Communities(in(32(states(receive($14(million(boost(for(infrastructure(projects!(March!17,!2016);! Jack!Atzinger!Boat(sales(up(6.8(percent(in(2015!(March!9,!2016).!Together,!Exhibit!HHH.! Table 1: Annual manatee mortality by cause of death, 2011-2016.144

The Manatee Individual Photo-identification System, which has catalogued manatees based on identification from scar patters since 1978, has recorded over 3,000 Florida manatees by their scar patterns.145 Some manatees are struck and injured by boats twice or more each year,146 and many bear numerous scars from repeated strikes received throughout their lifetimes. The manatee pictured below, identified as CR125 and nicknamed Red Hot Poker, is a Crystal River manatee who likely received her scars while traversing Crystal River, Kings Bay, and the coastal Gulf of Mexico.147

Figure 7: FWS Photo by Joyce Kleen148

Manatee-boat interactions will only increase with Florida’s population growth and development. By 2060, there are expected to be 1.8 million boats on Florida waterways.149 See Figure 8. Private marinas and coastal developers are expected to build additional waterway access while public access remains constant.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 144!Created!using!data!from!FWC!Manatee!Mortality!Statistics!Database.! 145!81!Fed.!Reg.!1020.! 146!Id.! 147!Katherine!Taylor,!The(Stories(Told(by(Manatee(Scars,!US!Fish!and!Wildlife,!Open!Spaces:!A!Talk!on!the!Wild!Side!(March!30,!2016),! Exhibit!III.! 148(Id.! 149!FWC!(2010)!Exh.!Q!at!23.!

Figure 8: Anticipated increase in registered boats.150

With regard to impacts to the Antillean manatee, the Service admits that it lacks sufficient information to determine whether threats from watercraft are controlled, as “current information on the effects of boat traffic on manatees does not exist,”151 but evidence indicates that watercraft threats are increasing throughout the Caribbean as well as in the Southeastern United States. As the NPRM notes, “[i]n some countries, such as Belize, watercraft collisions were the predominant cause of death from 1996 to 2003 with an increasing trend,” and the number of registered boats has increased significantly.152 “Motorboats are [also] becoming more abundant and popular in Guatemala, and watercraft traffic and speed are not regulated even within protected areas,” while “an aquatic transportation system with high-powered engines has increased boat transit in one of the most important manatee habitats areas [sic.] in Panama,” and “[i]ncreased boating activities in Brazil have resulted in both lethal collisions with manatees and disruption of manatee behavior.”153

ii) Red Tide and Harmful Algal Blooms

Manatees face persistent and likely increasing risks from red tide and harmful algal blooms. In 2013, 118 adult manatees died in the Indian River Lagoon system from undetermined causes associated with a harmful algal bloom. That cause still has yet to be definitively determined three years later as another similar bloom threatens manatees in the same waterways. At the same time on Florida’s Southwest coast, 276 adult manatees fell victim to red tide deaths.154 A total of 830 manatees died that year. Synoptic surveys were not conducted in 2013, but based on averages from 2011 and 2014, mortality for 2013 was approximately 17 percent of the total population, not counting perinatal deaths.

In that same year, Brevard County had an additional 52 perinatal deaths, to which no cause was attributed but which represented a sharp spike relative to the rest of the state and which occurred in the area where the harmful algal bloom and unusual mortality event (UME) occurred.155 Therefore it is likely that some of these additional 52 deaths were caused by the same Indian River Lagoon event, making the death toll higher than reported. Similarly, Lee and Sarasota Counties, where the effects of red tide were most prevalent on the adult population, had an additional 19 perinatal deaths, some of which are likely to be attributable to red tide.156 The effect of these high perinatal death counts on the overall population may be significant in terms of long-term population sustainability, especially if similar events continue to occur in the future.

Red tides, caused by a proliferation of the dinoflagellate Karenia brevis, produce neurotoxins called brevetoxins that can kill large numbers of fish and marine mammals, including manatees, and which can contaminate shellfish and poison humans.157 Manatees may be exposed to red tide brevetoxins through inhalation or ingestion, leading to brevetoxicosis and fatal shock. Aside from humans, only manatees appear to be susceptible to brevetoxin exposure through inhalation.158 Manatees exposed to red tide that

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 150!Id.!at!24.! 151!81!Fed.!Reg.!1020.!! 152!Id.! 153!Id.!! 154!81!Fed.!Reg.!at!1005,!Table!2.! 155!FWC!Marine!Mammal!Pathology!Laboratory,!2013!Final!Manatee!Mortality!Table!by!County,!Exhibit!JJJ.!! 156!These!death!tolls!still!fail!to!account!for!the!loss!of!in!utero!manatees!from!the!deaths!of!pregnant!females,!so!the!actual!toll!on!the! population!potential!may!be!higher!still.! 157!Bossart!(2007),!Exh.!Z!at!547.! 158!Id.!at!548.! do not develop immediate complications may experience long-term effects that compromise their immune systems and make them susceptible to other diseases and environmental stressors, such as cold stress.159

Runge et. al anticipate a “continued increase in the frequency of severe red-tide mortality” but did not incorporate the effects of the devastating 2013 red tide event or UME event into the assessment on which the downlisting is based.160 The Marine Mammal Commission (MMC) in its 2014 recommendations to FWS also note “a disturbing trend since the 1980s of more frequent and more severe manatee die-offs that may be at least partially related to climate change-related environmental events.”161 The Service does not account for the fact that these threats are increasing.

The increasing effects of red tide, and harmful algal blooms generally, can be better seen by parsing the data from FWC’s mortality statistics database.162 The database does not distinguish between “natural” and red tide deaths, but looking at the data from Lee County, where red tide has been most prevalent, there are significant spikes in “natural” death counts that correlate with years when red tide is known to occur. See Figure 9. Therefore using “natural” mortality as a proxy for the impacts of red tide, we can see that the trend is increasing over the past two-and a half decades, both in terms of overall mortality increases and the relative effect of red tide. See Figure 10. We conducted a similar analysis in Brevard County, where “undetermined” deaths are recently largely related to the Unusual Mortality Event associated with the Indian River Lagoon harmful algal bloom163. See Figures 11 and 12. A similar, though less pronounced, increasing trend is present throughout the data period, though the trend becomes dramatically more pronounced if one considers only the data period that brown tide is known to occur in Florida’s waters. That data period, 2010- 2016, is excluded from the Core Biological Model on which the downlisting is based, though the MMC strongly recommends that FWS particularly evaluate the effects of these unprecedented die-off events prior to downlisting.164

Lee%County%Manatee%Mortali0es% 300! 250! 200! 150! 100! Total!Deaths! 50! Natural/!Red!Tide! 0! 1998! 2008! 1990! 1992! 1994! 1996! 2000! 2002! 2004! 2006! 2010! 2012! 2014! Year%

Figure 9: Showing increasing trends in natural/red tide deaths, with spikes in natural deaths during years when red tide was known to occur in Lee County. Created using data from FWC Manatee Mortality Statistics Database

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 159!See!Walsh,!et!al.,!Sublethal(red(tide(toxin(exposure(in(freeOranging(manatees((Trichechus(manatus)(affects(the(immune(system( through(reduced(lymphocyte(proliferation(responses,(inflammation,(and(oxidative(stress,!161!Aquatic!Toxicology(73!(2015),!Exhibit!KKK.! 160!81!Fed.!Reg.!at!1021.!! 161!Marine!Mammal!Commission!(2014)!Exh.!V!at!4.! 162!FWC!Manatee!Mortality!Database.! 163!This!conclusion!was!arrived!at!by!comparing!FWC’s!manatee!mortality!statistics!from!2013,!where!Brevard!County!had!158! undetermined!deaths!(far!beyond!usual!deaths!in!that!category!and!far!more!than!in!any!other!county)!with!the!Service’s!assessment! in!Table!2!of!the!NPRM!that!there!were!118!IRL!related!deaths!in!2013!that!are!otherwise!unaccounted!for!in!the!FWC!mortality! database.!! 164!Marine!Mammal!Commission!(2014)!Exh.!V!at!4.! Lee%County:%Natural%Mortali0es%as% a%Percentage%of%Total%Mortali0es%

60.0%!

40.0%!

20.0%!

0.0%! 1990!1992!1994!1996!1998!2000!2002!2004!2006!2008!2010!2012!2014! Year%

Figure 10: Increasing Relative Effects of Red Tide on Manatee Population in SW Florida using Lee County as an example region to ground-truth red tide with natural deaths. Created using data from FWC Manatee Mortality Statistics Database.

Brevard%County%Manatee% Mortali0es%

300! 200! Total!Deaths! 100!

0! Undetermined/!IRL! UME! 1998! 2008! 1990! 1992! 1994! 1996! 2000! 2002! 2004! 2006! 2010! 2012! 2014! Year%

Figure 11: Increasing trends in Brevard County mortality associated with the Indian River Lagoon Unusual Mortality Event. Created using data from FWC Manatee Mortality Statistics Database

Brevard%County:%Undetermined%Mortali0es% as%a%Percentage%of%Total%Mortali0es%

80.0%! 60.0%! 40.0%! 20.0%! 0.0%! 1990! 1991! 1992! 1993! 1994! 1995! 1996! 1997! 1998! 1999! 2000! 2001! 2002! 2003! 2004! 2005! 2006! 2007! 2008! 2009! 2010! 2011! 2012! 2013! 2014! 2015! Year%

Figure 12: Undetermined mortalities relative to total mortalities in Brevard County Created using data from FWC Manatee Mortality Statistics Database

It appears that 2016 may already be as bad or worse for manatees as 2013. As previously discussed, there are ongoing red tide events along the Gulf coast that may be fueled in part by nutrient- laden discharges from Lake Okeechobee, and the brown tide in the Indian River Lagoon began late last year and is already showing signs of being as bad or worse than the 2013 bloom. As of March 25, 2016, there are already 22 manatee deaths suspected to have been caused by red tide,165 and as of April 1, there have already been 16 manatee deaths of undetermined cause in Brevard County.166

iii) Climate change

Climate change presents a range of uncertain threats that cannot reasonably be considered to be controlled. Climate change patterns that may have deleterious effects on manatees include increased temperatures, increased frequency and severity of drought, increased intensity and frequency of tropical storm events, cold weather events, coastal flooding and seal level rise, and other additional and related threats.167

Oscillating periods of extreme drought and extreme rainfall are one potential climate pattern that may impact manatees. Drought has the potential to decrease spring and river flows, exacerbating conditions of sea level rise and saltwater intrusion, while contributing to increased salinity and lower flushing rates that fuel harmful algal blooms in estuaries. If periods of drought are succeeded by storms or extreme weather events, waterways could be contaminated with nutrients and other pollutant runoff, turbidity increases and algae blooms could result in seagrass die-off events, and increased coastal erosion could make important habitat inaccessible.

Climate change may also impact manatee survival as a result of increased frequency and/or intensity of coastal storms and hurricanes. Langtimm and Beck found a direct relationship between manatee abundance and years with either a single strong storm or a series of smaller storm events.168 This connection is hypothesized to be either as a result of direct mortality from storm events, or indirect as a result of habitat destruction and loss of seagrass food sources. Seagrass may be directly destroyed from intense storm events, but runoff from heavy or persistent rains may be just as damaging to seagrass habitat.169

To persist in this rulemaking in spite of such clearly uncontrolled and increasing threats would be exceedingly poor resource management, and a violation of the Endangered Species Act.

III. The requirements for downlisting outlined in the current Manatee Recovery Plan have not been met.

The Act directs the Service to develop and implement recovery plans for the conservation and survival of both endangered and threatened species, unless such a plan will not promote the conservation of the species.170 Each recovery plan must contain “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” as well as “objective and measurable criteria, which, when met, would result in a determination…that the species be removed from the list” as well as time estimates for achieving those goals.171

Though the successful satisfaction of recovery criteria may be evidence that the Service had met its statutory obligations under the five-factor test, meeting the recovery criteria is not dispositive proof of having met those statutory requirements. However, the Service gets this relationship backward, arguing that not having met the recovery criteria is not evidence of having failed to achieve the requirements of the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 165!FWC!Marine!Mammal!Pathobiology!Laboratory,!2016!Preliminary!Red!Tide!Manatee!Mortalities,!Jan!01aMar!25,!Exhibit!LLL.!! 166!FWC!Marine!Mammal!Pathobiology!Laboratory,!YTD!Preliminary!Manatee!Morality!Table!by!County,!Jan.!1,!2016!a!Apr.!1,!2016,! Exhibit!!MMM.!! 167!See!e.g.,!81!Fed.!Reg.!at!1022;!See(also!Allen!et!al.!(2014),!Exh.!YY;!Holly!Edwards,!Potential(impacts(of(climate(change(on( warmwater(megafauna:(the(Florida(manatee(example,!121!Climate!Change!727!(2013),!Exhibit!NNN.!! 168!Catherine!A.!Langtimm!and!Cathy!A.!Beck,!Lower(Survival(Probabilities(for(Adult(Florida(Manatees(in(Years(with(Intense(Coastal( Storms,!13!Ecological!Applications!257!(2003),!Exhibit!OOO.!! 169!Carlson!et!al.,!Vulnerability(and(resilience(of(seagrasses(to(hurricane(and(runoff(impacts(along(Florida’s(west(coast,!649! Hydrobiologia!39!(2010),!Exhibit!PPP.!!! 170!16!U.S.C.!1533(f)(1).! 171!16!U.S.C.!1533(f)(1)(B).!! five-factor test.172 The Service is in error. The Recovery Plan contains site-specific management actions and objective measurable criteria that have been established through stakeholder review, and failing to satisfy those recovery criteria means that, prima facie, threats to the manatee have not been controlled adequately to recover the species. Meeting the recovery criteria is a necessary condition to demonstrating compliance with the five-factor test. The failure to have met recovery criteria is therefore sufficient to establish that the Service has not adequately addressed the five factors outlined in the statute. The Service freely admits that the recovery criteria have not been achieved. Therefore it cannot assert that it has complied with its statutory obligations under the five-factor test.

IV. The reclassification is not based on the best available scientific and commercial data.

The statute and regulations require that determinations of species classifications shall be made “solely on the basis of the best scientific and commercial data available….without reference to possible economic or other impacts of such determination.”173 The Core Biological Model on which the rulemaking is predicated does not represent the best available scientific and commercial data. The model’s exclusion of the extreme mortality events of recent years and its underlying assumptions that threats will remain constant or diminish174 are flaws fatal to the Service’s reliance on it for downlisting purposes.

The model only incorporates data available up through the 2008-2009 winter season, and so ignores the extreme mortality events of 2009-2010 (288 confirmed, 485 suspected deaths from cold stress), 2010- 2011 (113 deaths from cold stress), 2012-present Indian River Lagoon die-off event (135 deaths), or the 2013 red tide event (276 deaths).175 A model that does not take these events into account cannot accurately assess present and future threats to manatee survival.

The Core Biological Model also depends upon the faulty assumption that current threats will remain constant indefinitely.176 The best available scientific and commercial data indicate that threats to manatees will rise in years to come, as the foregoing sections and threat analyses have shown. Manatees are facing increasing, not stable or diminishing, threats in the US and abroad from habitat destruction and fragmentation, the loss of natural and artificial warm-water refugia, reduced genetic diversity and threat of opportunistic diseases, inadequate existing protections and enforcement, poaching and harassment, watercraft collisions, red tide and other algal blooms, and the uncertain effects of climate change.

Reliance on a study that does not take into account these increased threats and especially the mass mortality events of recent years cannot be considered the best available science. The unusual mortality from the Indian River Lagoon event in 2013 is a striking example of how downlisting now would be premature. Scientists have yet fully understand the causes of the deaths of at least 135 manatees in the Indian River Lagoon since 2012, though the bulk of deaths were associated with outbreaks of algal blooms in 2013. The mass mortality event coincided with widespread pelican and dolphin deaths as well, though there was no interspecies cause identified.177 The manatees appeared to have died of shock or and/or drowning, with no apparent illness or infection, though many of the animals’ stomachs contained macroalgae that the manatees had taken to eating when their preferred seagrass had died off as a result of the brown algae bloom.178 Though the cause of the 2013 deaths is now believed to be a combination of food web collapse and the ingestion of toxic algae, scientists have no way of knowing for sure when or if the unusual manatee mortality event will end or be recurring, and can not know the long-term effects on the Lagoon’s manatee population. Forty-nine of the manatees that died during the 2013 event were juvenile.179 The deaths of so many younger manatees have potential effects on the long-term viability of the population. With the emergence of conditions similar to and arguably worse than those of 2013 already appearing in the Lagoon early in the winter of 2016, it is clear that there are insufficient data available on the long-term effects of these outbreaks. Accordingly, downlisting would not be based on the best science. In fact, effects may be even more serious this year because the Lagoon never recovered from previous events, and this !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 172!81!Fed.!Reg.!at!1006.! 173!50!C.F.R.!§424.11!(emphasis!in!original);!16!U.S.C.!§1533(b)(1)(A).! 174!See!Runge!et!al.,!Status(and(Threats(Analysis(for(the(Florida(Manatee,!USGS!Open!File!Report!2015a1083!(2012),!Exhibit!QQQ.!! 175!81!Fed.!Reg.!at!1005!Table!2.! 176!81!Fed.!Reg.!1000.! 177!Nadia!Drake,!Manatees(Dying(in(Droves(on(Both(Coasts(of(Florida,!Wired!(Mar.22,!2013)!Exhibit!RRR.!! 178!Id.!! 179!Guest!(2013)!Exh.!F!(quoting!Dr.!Katie!Tripp).!! year’s outbreak may be even more severe even if the system were healthy.180 As of March 25, 2016, there have already been 14 manatee mortalities with unidentifiable causes in Brevard County since the beginning of this latest algae bloom.181

The model also fails to account for decreased winter warm-water habitat, which the Service identifies as the greatest threat to manatee survival within the United States, along with watercraft collisions.182 The increased availability of alternative energy sources and recent regulations to curb air and water pollution are likely to result in the shuttering of coal-fired power plants in the foreseeable future. Without a Warm Water Contingency Plan in place, the loss of these artificial warm water sources could have significant impacts on the manatee population in the Southeastern US. The model also does not have the capacity to account for the unpredictable effects that climate change will have on manatees and their habitat. These combined impacts must be assessed before downlisting may proceed.

The reclassification itself alters the status quo and undermines the assumption of current threats remaining constant. Save the Manatee Club has worked for decades to ensure the establishment of protective state and federal rules. Our success in those efforts has been in part the result of an engaged public and the agencies having the resources available to dedicate to manatee conservation. Reclassification of manatees from endangered to threatened gives the impression that manatees are no longer in need of strong protections. Some local governments and state legislators are already taking action to reduce protections for manatees, citing the proposed reclassification as justification. It is only through diligent advocacy and enforcement of protections that manatees have persisted at all. Downlisting their status risks endangering them further and undoing decades of hard-won progress. The Service acknowledges this in its proposed rulemaking, stating that, “adequate funding could be problematic if downsliting occurs,” and warning that Florida statutes permit reduced enforcement upon federal downlisting.”183

Lastly, relying on population counts rather than assessing and analyzing threats does not represent the best available science. Chuck Underwood, a U.S. Fish and Wildlife North Florida spokesman who was involved in the downlisting rulemaking, has acknowledged that the manatee counts might not be indicative of a growing population, saying that it may be that counting methods and technology improvements may be responsible for the increase in animals counted.184 Underwood continued, saying of the unexplained mortalities since 2010, “It raises a flag. The question is what does that flag mean? Is it a one-time event or are we going to see more?” Indeed, that is one of the important questions that must be answered before downlisting can proceed. That is why the ESA requires the use of the five-factor analysis for downlisting, rather than a simple population count. These threats are not controlled, and have in fact already increased beyond what the Core Biological Model is equipped to account for and may yet be increasing further still. A longer time period is necessary to assess these new threats, and full protections must remain in place in the interim.

V. Prior to downlisting, the Department must develop and implement an updated recovery plan with a Warm-Water Contingency Plan.

The ESA requires the agency “to develop and implement recovery plans for the conservation and survival of endangered species and threatened species…,”185 prioritizing species “most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other development projects or other forms of economic activity.”186 Each plan must incorporate “site-specific management actions as may be necessary to achieve the plan’s goal for the conservation and survival of the species.”187 For the West Indian Manatee, site-specific management actions must include details for weaning the animals off of artificial warm-water sources and developing federal protections for natural springs warm-water refuges. Warm water wintering sites are essential to the conservation and survival of the species, as the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 180!Dinah!Voyles!Pulver,!Algae(that(contributed(to(the(deaths(of(manatees,(dolphins,(and(pelicans(are(back,!Daytona!Beach!Newsa Journal!(March!21,!2016)!Exhibit!SSS!(“In!38!years!of!living!along!the!lagoon,!Duane!De!Freese,!Director!of!the!Indian!River!Lagoon! Council,!said!he!has!never!seen!it!look!worse.”)! 181!FWC!Year!to!Date!Preliminary!Manatee!Morality,!Exh.!MMM.!! 182!81!Fed.!Reg.!1000.! 183!Id.!at!1019.! 184!David!!Fleshler,!Manatee(Season(About(to(Begin(as(Protections(Questioned,!Orlando!SunaSentinel!(Nov!7,!2014),!Exhibit!TTT.!! 185!16!U.S.C.!1533(f)(1).! 186!Id.!at!(f)(1)(A).!!! 187!Id.!at!(f)(1)(B).! Service notes in its proposed rule.188

Because no updated Recovery Plan has been implemented for the West Indian Manatee, the agency overall lacks sufficient information to determine whether reclassification is justified. Prior to downlisting, the Service must develop an updated Recovery Plan that includes management strategies, objective and verifiable criteria, and an implementation timetable for weaning manatees off of artificial warm-water refuges and ensuring sufficient natural warm water sites. At a minimum, the Recovery Plan should incorporate the following recommendations from the Marine Mammal Commission:

• Remove dams, locks, and other structures blocking manatee access to natural springs; • Dredge spring runs that have become silted-in by land runoff and now impede access to warm- water discharges • Control recreational use of springs that displaces manatees; • Establish minimum spring flow levels and preventing groundwater pumping for agricultural and domestic use that could reduce flow rates below that needed to support manatees; • Experiment with the reintroduction of manatees to springs that are underused or no longer used by manatees; • Create new passive thermal basins in southern Florida; acquiring and protecting springs that are currently privately owned; and • Monitor manatee use of springs and other warm water refugia.”189

VI. The reclassification is in derogation of obligations under the Endangered Species Act to consider international treaties and species designations in other countries within the animal’s range.

In carrying out its obligations under the ESA, the agency is required to make species classifications in consideration of the status of the species in other countries within its range and international conservation efforts.190 In particular, the agency is required to give special consideration “to species which have been designated as requiring protection…by any foreign nation, or pursuant to any international agreement, or identified as in danger of extinction, or likely to become so within the foreseeable future, by …any agency of a foreign nation….”191 The agency is likewise statutorily bound to encourage conservation efforts by foreign nations.192

Manatees are listed under the Convention on International Trade and Endangered Species (CITES), as well as individually listed under the laws of all foreign nations throughout their range for which such information is available, and are listed as “critically endangered” in five of the ten countries for which information is provided.193 The Service must consider the effect of downlisting on funding, resources, public perception, and other concerns in extra-jurisdictional portions of the manatee’s habitat.

VII. At a minimum, the Service must extend the rulemaking period for an additional six months to ensure consideration of the best available scientific evidence, and must reopen the public comment period.

Existing and increasing threats to the manatee warrant withdrawing the proposed downlisting indefinitely until such time as the updated recovery plan criteria and warm water contingency plan have been satisfied and threats to the species are controlled. At a minimum, the Service must recognize that the current rulemaking is not based on the best available scientific and commercial data, given that the Core Biological Model on which the Service so heavily relies assumes that threats will remain constant and does not take into account the extreme mortality events of the past several years. The Service should, if it does not withdraw the rule entirely, elect to extend its rulemaking period for an additional six months to more fully incorporate the best available and up-to-date data, where there are such substantial questions regarding the sufficiency and accuracy of the data on which the Service relies.194 The Service must then

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 188!81!Fed.!Reg.!1000.!!! 189!Id.!at!5a6.!! 190!16!U.S.C.!§1533(b)(1)(A).!!! 191!16!U.S.C.!§1533(b)(1)(B).!!! 192!16!U.S.C.!§1537(b).! 193!81!Fed.!Reg.!Table!1.!!!! 194!16!U.S.C.!§1533(b)(6)(B)(i).!! reopen the comment period to permit public evaluation of the model and its data.195

This downlisting is premature, does not comply with the requirements of the Endangered Species Act, and is not based on the best available scientific and commercial data. In particular, threats to habitat must be addressed through springs enhancement and restoration of warm water refugia, and by the implementation of management strategies to compensate for the loss of artificial warm water sources. Prior to any final downlisting rule the Service must also undertake rulemaking to ensure adequate regulatory protections are in place. The Service may not proceed with downlisting without addressing current and increasing threats under the five-factor test, without availing itself of the best available science, and without conducting an analysis of whether the manatee is endangered in a significant portion of its range.

Thank you for the opportunity to comment on this important matter. Please do not hesitate to contact me if you have any questions or concerns regarding this letter or the attached materials.

Regards,

/s/Anne M. Harvey Holbrook Anne Harvey Holbrook, JD, MS FL Bar No. 89808 Staff Attorney Save the Manatee Club [email protected]

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 195!See,(e.g.,(Sierra(Club(v.(Costle,!657!F.2d!298,!334!(D.C.!Cir.!1981).!! Exhibit' Description' ' A" US"Fish"and"Wildlife"Service,"Endangered(Species(Act(Basics"(Jan."2013)" B" FWS"Guidance"Interpretation"of"‘in"danger"of"extinction"under"the"ESA’"(Dec."22,"2010)" C" Mel"White,"When(Push(Comes(to(Shove:(The(Florida(manatee(is(thriving(in(Kings(Bay,(and(so(is( tourism.((Therein(lies(the(problem,"National"Geographic"(April"2013)" D" FDEP,"Division"of"Environmental"Assessment"and"Restoration"“2014"Integrated"Water"Quality" Assessment"and"Florida”"(2014)" E" D."Harrington"et"al.,"Florida(Springs(Initiative(Monitoring(Network(Report.""FDEP"Division"of" Environmental"Assessment"and"Restoration"(2008)" F" David"Guest,"Pollution(Killing(Manatees(at(Record(Pace,"Earthjustice"(Nov."13,"2013)" G" 81"Fed."Reg."at"1005,"Table"2;"FWC"Manatee"Mortality"Statistics"for"2013" H" Fred"Grimm,"Massive(fish(kill(makes(Florida(water(emergency(difficult(to(ignore,"Miami"Herald" (March"30,"2016)" I" Greg"Allen,"With(Murky(Water(and(Manatee(Deaths,(Lagoon(Languishes.""National"Public"Radio" (Sept."26,"2013)" J" Michael"D’Estries,"Florida’s(mass(fish(kill(is(a(nightmare(to(behold."MNN"(Mar."28,"2016)" K" Jennifer"Gray,"Fish(Kill(in(Florida:(‘Heartbreaking(Images’(seen(for(miles,"CNN"(March"25,"2016)" L" Jim"Waymer,"What’s(Next(for(the(Indian(River(Lagoon,"Florida"Today"(April"2,"2016)" M" Outdoor360,"Heartbreaking(Photos(of(Thousands(of(Dead(Fish(Highlight(Mass(Devastation(at(Indian( River(Lagoon,(via"Florida"Wildlife"Federation"(Mar."24,"2016)" N" Roblee"et"al."Salinity(Patterns(in(Florida(Bay:(A(Synthesis,"via"USGS"SOFIA" O" Koch"et"al."Conceptual(model(of(seagrass(dieOoff(in(Florida(Bay:(Links(to(biogeochemical(processes," 350"Journal"of"Experimental"Marine"Biology"and"Ecology"77"(2007)" P" Kevin"Spear,"Florida(Coastal(Environments(are(Collapsing,"Orlando"Sentinel((Mar."4,"2016;"updated" Mar."31,"2016)" Q" Florida"Fish"and"Wildlife"Conservation"Commission,"Wildlife(2060"Report,"FWC"Special"Initiatives" (2010)" R" 1"Jim"Turner,"Florida(Population(Over(20(Million,(Adding(Nearly(1,000(People(A(Day,"News"Service"of" Florida,"publ."Space"Coast"Daily"(Dec."28,"2015)" S" Florida"Department"of"Environmental"Protection,"Annual"Report"on"Regional"Water"Supply" Planning"(2014)" T" Christine"Tomichek,"Summary(of(FEPs(Final(316(b)(Rule(for(Cooling(Water(Intake(Structures." Kleinschmidt"Group" U" David"W."Laist"and"John"E."Reynolds,"III.,""Florida(Manatees,(WarmOWater(Refuges,(and(an(Uncertain( Future,"33"Coastal"Management"279"(2005)" V" Marine"Mammal"Commission"Sept."2,"2014"comments"to"FWS"in"re:"Petition"for"Reclassification" W" Ana"Carolina"Oliveira"De"Meirelles,"Mortality(of(the(Antillean(manatee,(Trichechus(manatus( manatus,(in(Ceara(State,(northOeastern(Brazil,""88"Journal"of"the"Marine"Biological"Association"of"the" United"Kingdom"1133,"1135e36"(2008)" X" SMC"Comments"to"FWS"in"re:"Three"Sisters"Draft"EA"(Sept."2,"2015)" Y" Hunter"et"al.,"Low(genetic(variation(and(evidence(of(limited(dispersal(in(the(regionally(important( Belize(manatee,"13"Animal"Conservation"592,"598"(2010)" Z" Gregory"D."Bossart,"Emerging(Diseases(in(Marine(Mammals:(from(Dolphins(to(Manatees.(Exposures( to(viruses,(pollutants(may(lead(to(diseases,(sometimes(involving(immune(dysfunctions,(among(marine( mammals."2"Microbe"No."11,"544"(2007)" AA" Alan"Farago,"On(Florida’s(Massive(Fish(Kills,(Voters(are(Responsible,"Huffington"Post"(Mar."23,"2016)" BB" Ron"Littlepage,"Environmental(issues(put(a(hit(on(Florida(tourism,"Florida"TimeseUnion"(Mar."22," 2016)" CC" Ed"Killer,"Dead(fish(causing(dread,"TC"Palm"(Mar."22,"2016)" DD" Public"Employees"for"Environmental"Responsibility,"Report"on"Enforcement"Efforts"by"the"Florida" Department"of"Environmental"Protection"(2014)" EE" Jacqui"ThurloweLippisch/Jacquithurlowlippisch.com"via"David"Guest,"South(Florida’s(Tourist( Season(From(Hell.""Earthjustice"(Mar."2,"2016)" FF" Alex"Hagan,"Florida(Congressman(introduces(bill(to(decrease(Lake(Okeechobee(discharges."WPTV" (Mar."18,"2016)" GG" Howard"T."Odum"Florida"Springs"Institute,"Comments"Re:"Establishment"of"MFLs"for"the"Gum" Slough"(Feb."25,"2016)" HH" SMC"comments"on"the"Central"Florida"Water"Initiative,"(Aug."2015)" II" SMC"Comments"on"Kings"Bay"TMDL"(2013);"Recommendations"to"the"Select"Committee"on"the" Indian"River"Lagoon"and"Lake"Okeechobee"Basin"with"regard"to"the"Lake"Okeechobee,"Indian"River" Lagoon,"and"Caloosahatchee"systems"(2013);"as"well"as"comments"on:"Lower"Santa"Fe"and" Ichetucknee"MFL"(2014);"Volusia"Blue"Spring"TMDL"(2013);"the"South"Florida"Water"Management" District"Regional"Water"Supply"Plan"(2015);"Silver"Spring"BMAP"(2015);"Springs"Coast"Basin" TMDL"(2015);"TMDL"prioritization"(2015);"State"Surface"Water"Quality"Standards"(2015);"and" MFLs"for"Gum"Slough"(2016)" JJ" Amy"Sherman,"FactOchecking(Rick(Scott(on(the(environment(and(seaOlevel(rise,"Politifact"Florida" (Mar."11,"2015)" KK" Terrance"McCoy,"Fla(scientists(told(to(remove(words(‘climate(change’(from(study(on(climate(change." Washington"Post"(Mar."10,"2015)" LL" Tristram"Korten,"Gov.(Rick(Scott’s(ban(on(climate(change(term(extended(to(other(state(agencies." Florida"Center"for"Investigative"Reporting,"publ."Miami"Herald"(Mar."11,"2015)" MM" Tristram"Korten,"In(Florida,(Officials(ban(the(term(‘climate(change’."Florida"Investigative"Reporting," publ."Miami"Herald,"(Mar."8,"2015)" NN" Doyle"Rice,"Fla.(Gov.(bans(the(terms(climate(change,(global(warming,"USA"Today"(Mar."9,"2015)" OO" Res."No."16e003,"Supporting"the"Health"of"the"Indian"River"Lagoon"by"Encouraging"Efforts"to" Amend"the"Florida"Manatee"Sanctuary"Act."Brevard"County"Comm'n"(Jan."12,"2016)"(as(proposed)" PP" Res."No."16e003,"Supporting"the"Health"of"the"Indian"River"Lagoon"by"Encouraging"Efforts"to" Amend"the"Florida"Manatee"Sanctuary"Act."Brevard"County"Comm'n"(Jan."12,"2016)"(as(passed)" QQ" Dave"Berman"and"Jim"Waymer,"Commissioner:((Boat(speed(zones(to(protect(manages(‘archaic’," Florida"Today"(January"7,"2016)" RR" FAR"notice,"68Ce22.023"Collier"County"Zones"(Feb."26,"2016)" SS" Email"notice"regarding"Collier"County"boating"zones"(March"31,"2016)" TT" SMC"Comments"on"MiamieDade"Draft"MPP"Revisions"(Dec."17,"2015)" UU" Proposed(H.B.(to(Amend(the(Florida(Manatee(Sanctuary(Act,(379.2431(Fla.(Stat.,(2016(Leg.,(Reg.(Sess.( (Fla.(2016)" VV" HB1273/BS1506,"Amendments"to"the"Florida"Manatee"Sanctuary"Act,"2016"Leg.,"Reg."Sess."(Fla." 2016)" WW" SMC"Summary"of"Webster"Bill"as"Originally"Proposed" XX" Final"Order"on"Petition"to"Initiate"Rulemaking,"In"Re:"Petition"of"Save"Crystal"River,"Inc."Case"No." 12e0022"(FWCC"2012)" YY" Allen"et"al.,"The(people(vs.(the(Florida(manatee:(A(review(of(the(laws(protecting(Florida’s(endangered( marine(mammal(and(need(for(application,"102"Journal"of"Ocean"&"Coastal"Management"40"(2014)" ZZ" Howard"T."Odum"Florida"Springs"Institute,"Kings"Bay/Crystal"River"Springs"Restoration"Plan"(Feb." 2016)" AAA" Thomas(v.(FWC"Case"No."15e004435RP"(Fla."Div."of"Admin."Hearings)"filed"Aug."28,"2015" BBB" US"Fish"and"Wildlife"Service,"Press"Release:""US(Fish(and(Wildlife(Service(Proposes(Delisting( Yellowstone(Grizzly(Bear(Due(to(Recovery"(March"3,"2016)" CCC" Corbin"Hiar,"Endangered(Species:(Obama(admin(poised(to(break(delisting(record,"E&E"Publishing" (May"29,"2015)" DDD" Union"of"Concerned"Scientists,"Progress(and(Problems:(Government(Scientists(Report(on(Scientific( Integrity(at(Four(Agencies"(2015)" EEE" Sanerib"et"al.,"Lethal(Loopholes:((How(the(Obama(Administration(is(Increasingly(Allowing(Special( Interests(to(Endanger(Rare(Wildlife,"Center"for"Biological"Diversity"(Jan."2016)" FFF" Alan"DeSerio"and"Christina"Martin,"OpOed:(Rethink(protection(levels(for(Florida’s(manatees,"Pacific" Legal"Foundation"(Mar."6,"2013)" GGG" Jonathan"Wood,"PLF(petition(challenges(illegal(Endangered(Species(Act(Regulation,"Pacific"Legal" Foundation"Liberty"Blog"(March"15,"2016" HHH" Tara"Lambropoulous,"Boating(Industry(Outlook(Continues(to(Improve,(Says(New(GE(Capital(Survey."" Business"Wire"(Feb."25,"2015);"Christina"Meister,"Recreational(Boating(Communities(in(32(states( receive($14(million(boost(for(infrastructure(projects"(March"17,"2016);"Jack"Atzinger"Boat(sales(up( 6.8(percent(in(2015"(March"9,"2016)" III" Katherine"Taylor,"The(Stories(Told(by(Manatee(Scars,"US"Fish"and"Wildlife,"Open"Spaces:"A"Talk"on" the"Wild"Side"(March"30,"2016)" JJJ" FWC"Marine"Mammal"Pathology"Laboratory,"2013"Final"Manatee"Mortality"Table"by"County" KKK" Walsh,"et"al.,"Sublethal(red(tide(toxin(exposure(in(freeOranging(manatees((Trichechus(manatus)( affects(the(immune(system(through(reduced(lymphocyte(proliferation(responses,(inflammation,(and( oxidative(stress,"161"Aquatic"Toxicology(73"(2015)" LLL" FWC"Marine"Mammal"Pathobiology"Laboratory,"2016"Preliminary"Red"Tide"Manatee"Mortalities," Jan"01eMar"25" MMM" FWC"Marine"Mammal"Pathobiology"Laboratory,"YTD"Preliminary"Manatee"Morality"Table"by" County,"Jan."1,"2016"e"Apr."1,"2016" NNN" Holly"Edwards,"Potential(impacts(of(climate(change(on(warmwater(megafauna:(the(Florida(manatee( example,"121"Climate"Change"727"(2013)" OOO" Catherine"A."Langtimm"and"Cathy"A."Beck,"Lower(Survival(Probabilities(for(Adult(Florida(Manatees( in(Years(with(Intense(Coastal(Storms,"13"Ecological"Applications"257"(2003)" PPP" Carlson"et"al.,"Vulnerability(and(resilience(of(seagrasses(to(hurricane(and(runoff(impacts(along( Florida’s(west(coast,"649"Hydrobiologia"39"(2010)" QQQ" Runge"et"al.,"Status(and(Threats(Analysis(for(the(Florida(Manatee,"USGS"Open"File"Report"2015e1083" (2012)" RRR" Nadia"Drake,"Manatees(Dying(in(Droves(on(Both(Coasts(of(Florida,"Wired"(Mar.22,"2013)" SSS" Dinah"Voyles"Pulver,"Algae(that(contributed(to(the(deaths(of(manatees,(dolphins,(and(pelicans(are( back,"Daytona"Beach"NewseJournal"(March"21,"2016)" TTT" David""Fleshler,"Manatee(Season(About(to(Begin(as(Protections(Questioned,"Orlando"SuneSentinel" (Nov"7,"2014)" "