Region 4

James S. Alves
Hopping Green Sams & Smith, P.A.
Tallahassee, Florida

Manatee Settlements

The year 2000 started off with three months of increased manatee deaths in Florida attributed to watercraft. Governor Bush responded by calling a Manatee Summit and by encouraging enhanced on-the-water law enforcement. Contemporaneously, 19 environmental groups brought two federal lawsuits in Washington, D.C., and Tallahassee asserting that the Corps of Engineers and the U.S. Fish & Wildlife Service (FWS) had violated the Endangered Species Act and the Marine Mammal Protection Act as they relate to protection of the manatee.

The Federal Lawsuit

Recently, the D.C. lawsuit was settled. The settlement calls for the FWS to pursue rulemaking to adopt manatee "incidental take regulations," which, at a minimum, will affect all Corps permitting activities for "water access" developments in Florida. In addition, the lawsuit provides that the Corps agrees to cooperate in creating a new process for review of permits for water access facilities. The settlement also adopts several interim measures while the incidental take rules are being adopted. These measures include issuing a revised "Manatee Key" used by the Army Corps of Engineers to review permit applications involving: (1) dredging, filling, and construction of in-water activities or structures or (2) construction of docks, marinas, boat ramps, boat slips, dry storage, or any other watercraft access facilities. Among its provisions, the Key:

• Defines "watercraft access structures" to include docks or piers, marinas, boat ramps, boat slips, boat lifts, floats, pilings, boat davits, dry storage, etc.
• Considers 35 counties to be areas of "heightened scrutiny."
• Will take into consideration the effects of multiple independent permit applications, i.e., how many docks have been requested or permitted in nearby waters.
• Defines "indirect effects" to include watercraft access development in waters not currently accessible to manatees.

This revised "Key" was published for public comment by the Corps on January 18, 2001 with a comment period of 90 days (no later that April 18).

Additionally, the FWS agreed to develop a revised "Manatee Guidance Document" and is expected to release a draft of that guidance document for public comment by early March 2001. Among its expected provisions:

• Designate low, medium, and high-risk counties with requirements which vary based on the number of manatees historically killed in the county.
• Require a per dock financial contribution to organizations or entities that participate in and/or fund manatee law enforcement. This includes single family docks and other water access facilities, including dry storage.

The FWS also agreed to propose a rule designating "new sanctuaries and refuges" throughout the peninsula of Florida by April 2, 2001. Note that a sanctuary is an area of total boat exclusion, while a refuge involves substantial restrictions.

The Florida Lawsuit

The Florida lawsuit was actually brought against Allen Egbert, Director of the Florida Fish and Wildlife Conservation Commission by the same coalition of environmental groups. There is a proposed settlement on the table, which was to be considered in Tallahassee, March 29-30, 2001. Proposed settlement provisions include:

• The adoption of rules for the speed and operation of motorboats in Brevard County.
• A rulemaking proposal for 8 "hot spots" (slow/idle speed zones).
• A rulemaking proposal for 14 "safe havens" (boat exclusion zones).