Bear Warriors United Sues State for Manatee Starvation

November 17, 2021 

Via Certified Mail 

Shawn Hamilton 

Secretary of Department of Environmental Protection  

3900 Commonwealth Boulevard M.S. 49 

Tallahassee, FL 32399 

Re: 60-Day Notice of Intent to Sue Regarding Violations of the Endangered  Species Act regarding harm and death to manatees under the Endangered Species  Act. 

Dear Secretary Hamilton, 

On behalf of the Florida manatee (Trichechus manatus latirostris) (“manatee”), and Bear Warriors United,1 a Florida not-for-profit dedicated to  peaceful coexistence with Florida wildlife, the undersigned writes to request that  immediate action be taken by the Florida Department of Environmental  Protection (“DEP”) to remedy continuous, ongoing violations of Section 9 of the  federal Endangered Species Act (“ESA”)2 with respect to manatees that occupy in  that portion of the northern Indian River Lagoon (“north IRL”) which stretches  from the Turnbull Creek in Volusia County to the Melbourne Causeway.3  

1 Bear Warriors United Executive Director, Katrina Shadix, may be reached at tel:  407-702-3576, email: 

2 16 U.S.C. § § 1538-1544. 

This section of the IRL is designated by DEP as the North Indian River Lagoon in  its watershed Basin Management Action Plans.  The violations at issue include but are not limited to the catastrophic destruction of the manatee’s food supply, destruction of manatee habitat, and  resulting manatee malnourishment and starvation. The obliteration of the  manatees’ food supply and the resulting manatee starvation deaths, as well their  physical impairment and harm, result from DEP’s regulation, permitting and  authorization of sewage disposal. DEP’s regulatory control of sewage includes: 

1) onsite sewage disposal systems, commonly known as and hereafter  referred to as “septic tanks;” and  

2) sewage treatment facilities (which, together with the requisite attendant infrastructure of pipes, lift stations, pump stations, etc. shall hereafter be referred  to as “wastewater treatment systems.”). 

The septic tanks and wastewater treatment systems operating within the  north IRL basin discharge high concentrations of ammonium and phosphates  (“nutrients”) derived from human feces and urine (“sewage”)4 into the north IRL.  The ever-increasing human population in the north IRL basin yields ever  increasing volumes of sewage containing toxic nutrients that leach into the north  IRL. Sewage derived nutrients in the lagoon are the primary cause of the north  IRL’s hyper-eutrophication5 which has transformed the north IRL into an  ecological dead zone, obliterating sea grass and the rich biodiversity that once  called the IRL home.  

The manatee’s primary food supply is sea grass. This obliteration of sea  grass and even other macroalgae is the primary cause of manatee starvation,  death and harm in the north IRL. Such death, physical harm and obliteration of  habitat through the authorized release of toxic nutrients into the north IRL  constitutes unlawful “take” under section 9 of the ESA. 

Sewage includes not only human urine and feces, but also chemicals,  pharmaceuticals, hormones, soaps and other products of human use. 5 The Online Oxford Dictionary defines eutrophication as: “excessive richness of  nutrients in a lake or other body of water, frequently due to runoff from the land,  which causes a dense growth of plant life and death of animal life from lack of  oxygen.” 

Despite acknowledgement that nutrients derived from human sewage are  the primary source of the hyper-eutrophication of the north IRL, DEP nonetheless  continues to permit the installation of septic tanks which leach nutrients into the  north IRL.  

Further, DEP also continues to regulate, permit and authorize direct  discharge of either raw or partially treated human sewage and nutrients into the  north IRL basin from inadequate, overwhelmed, leaking sewage treatment  systems, as well as directly into the lagoon during “wet weather conditions,”  pursuant to the Indian River Lagoon System and Basin Act, Chapter 90-262, Laws  of Florida. DEP exerts regulatory authority over the antiquated, overwhelmed,  deteriorating, leaking sewage infrastructure that transports human wastewater  through the north IRL basin. During transport, sewage leaks both into basin  groundwater and sometimes directly into the lagoon, thereby further loading  harmful nutrients into the north IRL.  

This letter serves as official sixty-day notice under the ESA’s citizen suit  provision6 of the intent of the manatees and Bear Warriors United to file suit in  the Middle District of Florida to enforce the ESA if you do not act within sixty days  to begin to remedy the ongoing violations of the prohibition against “take” under  section 9 of the ESA.7 Providing immediate food relief to manatees in the north  IRL is necessary. Immediate implementation of a manatee feeding program is  discussed infra.  

6 16 U.S.C. § 1540(g). 

7 Id. at § 1538(a)(1). 

8 82 Fed. Reg. 16668, 16689 (April 2017).

The Florida Manatee 

The manatee is a marine mammal that was federally listed as endangered  in 1967, prior to the adoption of the ESA in 1973. From 1973 until 2017, the  manatee was listed as an “endangered” species under the ESA. In 2017, the  manatee was relisted from “endangered” to “threatened.”8 One study the  United States Fish and Wildlife Service relied on heavily in its 2017 relisting  decision predicted that it was “unlikely that the Florida population of manatees  will fall below 4,000 total individuals over the next 100 years, assuming current  threats remain at the current levels indefinitely.”9 The author of this study, Dr.  Michael C. Runge, recently conceded, “[t]his winter’s IRL die-off does raise questions about whether the assumptions in our baseline scenario were  correct.”10 As a “threatened” species, the manatee remains entitled to all  protections afforded by the ESA.  Manatees are herbivores. The federal Florida Manatee Recovery Plan  (Third Revision 2001)11 states: 

Seagrasses appear to be a staple of the manatee diet in coastal areas.

(Ledder 1986; Provancha and Hall 1991;  

Kadel and Patton 1992; Koelsch 1997; Lefebvre et al.  2000).

Packard (1984) noted two feeding methods in coastal seagrass beds: (1) rooting, where virtually the  entire plant is consumed; and (2) grazing, where exposed  grass blades are eaten without disturbing the roots or sediment. Manatees may return to specific seagrass beds to graze on new growth

(Koelsch 1997; Lefebvre et  al. 2000). 

In the upper Banana River, Provancha and Hall (1991) found spring concentrations of manatees grazing in beds dominated by manatee grass (Syringodium filiforme).  They also reported an apparent preference for manatee grass and shoal grass (Halodule wrightii) over the  macroalga Caulerpa spp.

(Pages 21-22) The primacy of healthy seagrass beds to manatee well-being is  underscored by the 2007 Florida Fish & Wildlife Conservation Commission  

9 Id. At 16701. 

10 Pittman, C. 2021, Four Years Ago the Trump Administration Said Manatees  Weren’t Endangered Anymore. Now they’re Dying in Droves, FlaglerLive (March  23, 2021). 11 U.S. FWS Florida Manatee Recovery Plan (Third Revision 2001).

“Florida Manatee Management Plan”:12 

What role does the manatee play in the  environment? Manatees occupy a unique niche in  that they are the only herbivorous marine mammal  in North and Central America (Domning 1991).  Manatees have co-evolved with seagrass species  found in Florida’s coastal ecosystems, and  manatee grazing effects on seagrasses have been  documented (Packard 1981; Lefebvre and Powell  1990; Smith 1993; Lefebvre et al. 2000). Manatees  can consume up to 10% of their bodyweight per  day, foraging on both native and exotic marine and  freshwater plants. Although localized grazing can  be heavy, studies have found that grass beds recovered well after intensive winter grazing by  manatees (Packard 1981; Lefebvre and Powell  1990; Smith 1993; Lefebvre et al. 2000). The  beneficial effects of grazing by marine herbivores  also have been documented through observations  and experiments. Grazing on leaves and shoots  promotes new growth and can improve the  nutrient composition (e.g., nitrogen content) of  seagrass beds. Foraging that involves rooting can  increase species diversity by allowing fast-growing  species to colonize areas that previously were  monocultures (Lefebvre and Powell 1990;  Provancha and Hall 1991; Smith 1993; Preen and  Marsh 1995). The increased structural complexity  of seagrass beds that occurs with greater seagrass  species diversity may also enhance faunal species  diversity and may increase survivorship of juvenile  fish (Beck et al. 2001). It is often assumed that  manatee fecal material is harmful to seagrass beds.  However, manatee defecation plays an important  role in the cycling of nutrients in coastal

12 FFWCC Florida Manatee Management Plan (December 2007).

ecosystems, as do fish, crabs, and other marine  

species, ultimately stimulating growth of primary  

producers (Domning 1991). By foraging on aquatic  

plants such as seagrass, manatees turn over  

nutrients locked in plant tissues and make those  

nutrients available to biota through the passage of  

metabolic wastes. Far from adding nutrients to the  

aquatic system as human pollution does, manatees  

release nutrients already in the system from the 

plants they consume, adding to the regenerative  

capacity of the system. Manatees are a natural  

component of Florida’s coastal ecosystems.  

According to Domning (1991, p. 169), “we would be  

very foolish if we extirpated manatees in Florida  

before we fully understood how we benefit from  their presence.”13 (Report at page 146.)

It is not disputed that hyper-eutrophication from sewage derived nutrients has  extirpated sea grass in the north IRL.

Bear Warriors United 

Bear Warriors United is a Florida not-for-profit dedicated to enjoying,  protecting and educating people about Florida’s natives—the wildlife and  ecosystems that are in constant danger of being destroyed. Members enjoy  viewing wildlife in “Natural Florida” that historically included observing manatees  in the IRL. Over the past year or so, members have taken multiple trips in the  north IRL. They have observed water that is now black, murky and appears to be a dead zone, devoid of all life. Members did observe a few manatees on several  trips, but no sea grass nor any macroalgae was observed. A few members,  including Bear Warriors Director Katrina Shadix, traveled several times this year  “Manatee Graveyard,” a cove on Merritt Island where the Florida Fish and  Wildlife Conservation officers dump dead manatees to decompose.

13 Id. at page 146.

Human sewage has transformed the north IRL into a dead zone in which  manatees cannot survive. 

While seagrass beds historically covered the north IRL, such is no longer the  case. The north IRL is now nearly completely devoid of seagrass and other  macroalgae. The primary cause of this seagrass obliteration in the north IRL is  “nutrient over-enrichment” originating from ever increasing volumes of human  sewage deposited in septic tanks and wastewater treatment facilities.14 

The obliteration of seagrass and other macroalgae reached a critical  threshold in 2020, precipitating a mass die off manatees in the IRL. On March 22,  2021, the U.S. Fish and Wildlife Service declared an “unusual mortality event”  (“UME”) in connection with the large number of manatee deaths in the IRL. The  Florida Fish and Wildlife Commission states the following regarding the cause of  the UME:

Environmental conditions in portions of the Indian  

River Lagoon remain a concern. Preliminary  

information indicates that a reduction in food  

availability, seagrass, is the primary factor in this  

event. We will continue with a comprehensive  

investigation and share information as it becomes  

available. The FWC has always done a rigorous  

and thorough job at investigating threats to  


As of this date, no official report has been issued regarding the Manatee  UME. However, a Biological Opinion issued by the U.S. Fish and Wildlife Service  on July 23, 2021, states that many manatees in the northern IRL died from starvation, “likely associated with a loss of foraging habitat”: 

14 See e.g., Barile, P., 2018. Widespread sewage pollution of the Indian River  Lagoon system, Florida (USA) resolved by spatial analyses of macroalgal  biogeochemistry. Marine Pollution Bulletin, 557-574; Lapointe, B., et. al. 2020.  Nutrient over-enrichment and light limitation of seagrass communities in the  Indian River Lagoon, an urbanized subtropical estuary. Science of the Total  Environment 699. Both studies are attached hereto.  15

In 2020, with the onset of summer rains in June, nutrient-laden storm water and baseflow began affecting water quality in the Indian River Lagoon. 

Salinities and water clarity dropped, and algal blooms began. By late-July, much of the southern Mosquito Lagoon, the Banana River and Northern Indian River were impacted by a severe algal bloom, which continued through December. Summer seagrass monitoring in the Indian River Lagoon showed that average transect lengths in 2020 (as measured from the shoreline to the furthest extent of seagrass beds) were 30 percent shorter than those recorded in the summer of 2019 (IRLNEP 2020). During late-2020, an Unusual Mortality Event (UME) involving manatees along the Atlantic coast of Florida began to evolve. An UME is defined by NOAA fisheries as “a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response” (NOAA 2021). 

The Service has drafted the Investigative Plan for the Atlantic coast UME investigation and is currently working with ourstate and federal partners to conduct analyses related to the potential cause of the UME. Although the investigation is ongoing, most of the manatee carcasses have come in from the Northern 

Indian River Lagoon area and in particular, Brevard County which is not in the action area…There were over 625 carcasses(all causes of death) discovered in the Atlantic Management Unit between December 1, 2020, and April 18, 2021 (Calleson per. comm. 2021). Of these, approximately 32 manatee mortalities occurred within the action area. As of July 9, 2021, a total of 850 carcasses have been discovered statewide of which 48 mortalities(5.6 percent) occurred within  Martin and St. Lucie counties(within the action area), 314 mortalities(40 percent) occurred outside the action area but within Brevard and Indian River counties, and the rest have occurred throughout other areas of the state. The probable cause of death for many of the  manatees in Brevard and Indian River counties has been identified as starvation, likely associated with a loss of foraging habitat. Seagrass beds are still present within the St. Lucie estuary portion of the action area, and foraging conditions in this area are not believed to be responsible for the recent manatee mortalities.16 (page 9)

As of the date of this letter, the Florida Fish and Wildlife Commission confirms  that thus far in 2021, a total of 396 manatees have died in the north IRL (326 in  Brevard County and 70 in Volusia County). Bear Warriors United submitted a  public records request upon the FFWC for all photographs of dead manatees in  2021. Below are photographs of emaciated, dead manatees in the north IRL: 

DEP exercises regulatory control over sewage deposited into wastewater  treatment systems and septic tanks. 

For the past 31 years, since the adoption of the Indian River Lagoon System  and Basin Act of 1990, Chapter 90-262, Laws of Florida,17 the State of Florida has  recognized and admitted that the Indian River Lagoon is: 

*“unsuitable for future disposal of sewage effluent even if advanced waste  treatment is provided[;]” 

*”restoration of the Indian River Lagoon System cannot be accomplished  without major reductions in nutrient loadings from existing sewage treatment  facilities[;]” 

*”package sewage plants and improper use of septic tanks in certain areas  pose a continuing threat to the water quality of the Indian River Lagoon[.]”

According to DEP, the 1990 law:

“was created to help protect the Indian River  

Lagoon System from discharges from package  

wastewater treatment plants and the improper  

use of septic tanks. The act established three  

objectives for domestic wastewater facilities in  

this area: 

1. Elimination of surface water discharges, 

2. Investigation of feasibility of reuse, and 

3. Centralization of wastewater collection and  

treatment facilities.18 “

Nonetheless, the Indian River Lagoon System and Basin Act does not  prohibit the installation and use of septic tanks in the IRL basin. And while the  law does seek to prohibit and eliminate sewage treatment facilities from discharging directly into the IRL, it simultaneously established exceptions that do  authorize discharges:

17 Ch. 90-262, Laws of Florida, is attached hereto. 18 authority

The North IRL Basin Management Plan states that there are presently 18  wastewater treatment plants in the north IRL basin:

DEP maintains a self-reporting system for wastewater discharges into the IRL that  result from “wet weather episodes.” Our research indicates that from 2016  through 2020, four of the facilities self-reported a total of 20 spills exceeding  180,000 gallons.  

Furthermore, inadequate, deteriorating wastewater treatment system infrastructure leaks untold millions of gallons of raw sewage/wastewater into the  north IRL basin and even directly into the IRL itself. For example, a primary sewer  pipe for the City of Titusville North Osprey Wastewater Treatment Facility broke  in 2020 and discharged 7.2 million gallons of raw sewage into ponds that flow  directly into the north IRL.19

19 See attached June 17, 2021 article in Florida Today, “Titusville fined $200,000  for sewage spill.”

Despite state recognition of the eutrophic destruction to the IRL resulting  from the widespread use of septic tanks within the IRL basin, authorization,  permitting and installation of such systems has continued unabated since 1990  and continues presently. Prior to July 1, 2021, the Florida Department of Health  exerted regulatory control over the permitting, installation and use of septic tanks  in the State of Florida. Pursuant to the adoption of the Clean Waterways Act,  Chapter 2020-150, the Florida Legislature transferred regulatory control of the  Florida Onsite Sewage Program, which regulates septic tanks, from the Florida  Department of Health to DEP. The June 30, 2021 “Interagency Agreement  Between Florida Department of Environmental Protection and Florida  Department of Health in Compliance with Florida’s Clean Waterways Act for  Transfer of the Onsite Sewage Program” provides, in relevant part:

Effective July 1, 2021, all powers, duties,  

functions, records, offices, personnel, associated  

administrative support positions, property,  

pending issues, existing contracts, administrative  

authority, administrative rules, and unexpended  

balances of appropriations, allocations, and other  

funds for the regulation of [septic tanks] relating  

to the [Onsite Sewage Program] in the  

[Department of Health] is transferred to the DEP,  

as more fully described herein.20 

According to DEP’s February 2021 “Indian River Lagoon Basin North Indian  River Lagoon Basin Management Action Plan,” there are 16,171 septic tanks  operating in the north IRL watershed. New septic tanks continue to be permitted  in the north IRL basin. 

The Federal Endangered Species Act 

20 sewage/_documents/interagency-agreement-between-fdoh-fdep-onsite-signed 06302021.pdf

The Endangered Species Act was enacted in 1973 to “provide a means whereby ecosystems upon which endangered species and threatened species  depend maybe be conserved, [and] to provide a program for the conservation of  such endangered species and threatened species.”21

The ESA prohibits the take of any federally listed species.22 To take is  defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or  collect…”23 Harm is defined to “include significant habitat modification or  degradation where it actually kills or injures wildlife by significantly impairing  essential behavioral patterns, including breeding, feeding or sheltering.”24 The  Supreme Court has held that “Congress intended “take” to apply broadly to cover  indirect as well as purposeful actions.”25  

The ESA “not only prohibits the acts of those parties that directly exact the  taking, but also bans those acts of a third party that brings about the acts exacting  a taking…[A] governmental third party pursuant to whose authority an actor  directly exacts a taking…may be deemed to have violated the provisions of the  ESA.”26 Consequently, the law is now settled that regulation of actions by federal,  state and local agencies that result in the take of a listed species constitutes a  violation of the take prohibition—even though the final action was conducted by  a separate entity or individual.27  

1 16 U.S.C. § 1531(b). 

22 16 U.S.C. § 1538(a)(1). 

23 Id. § 1532(19). 

24 50 C.F.R. § 17.3. See also, Babbitt v. Sweet Home Chapter of Communities for a  Greater Oregon, 515 U.S. 687, 697 (1995) holding that the “definition [of take]  naturally encompasses habitat modification that results in actual injury or death  to members of an endangered or threatened species.”  

25 Sweet Home, 515 U.S. at 704. 

26 Strahan v. Coxe, 127 F.3d 155, 163 (1st Cr. 1997). 

27 See, e.g., Loggerhead Turtle v. County, 148 F.3d 1231, 1251-52 (11th Cir. 1998)  (finding the regulation of lighting by the county to be the proximate cause of the  incidental take of sea turtles sufficient to render the county liable under the ESA);  Strahan v. Coxe, 127 F.3d at 158, 163 (1st. Cir. 1997) (finding that the licensure and  permitting of gillnet and lobster pot fishing by a state agency proximately caused.

“Any person”28 may file a citizen suit against any person, governmental  instrumentality, or agency alleged to be in violation of the ESA.29 Citizens can  seek to enjoin both present activities that constitute an ongoing take and further  activities that are likely to result in take.30 Notice must be provided to the  Secretary and the alleged violator, and the plaintiff must then wait at least sixty  days before the commencement of the action.31 Jurisdiction over ESA citizen suits  is vested in federal district courts.32 

DEP violates the ESA: Connecting the dots under section 9.  

DEP regulates sewage containing the harmful nutrients that are  continuously transported into the north IRL. These nutrients are a primary cause  of the lagoon’s hyper-eutrophication and destruction of lagoon’s water quality  and formerly rich biodiversity, which includes sea grasses and other vegetation upon which manatees depend for survival. Sewage induced hyper-eutrophication  in the north IRL is thus responsible for the starvation of manatees, a federally  protected species. The law is settled in the Eleventh Circuit that “a governmental  third party pursuant to whose authority an actor directly exacts a taking of an  endangered species may be deemed to have violated he provisions of the ESA.”  Loggerhead Turtle v. County Council of Volusia County, Florida 148 F.3d 1231, 125 (11th Cir. 1998), quoting Strahan v. Coxe, 127 F.3d at 163 (1st Cir. 1997). The  Eleventh Circuit holding in Loggerhead Turtle is on point with the matter set forth  in this letter: DEP is a governmental third party pursuant to whose authority an  actor [e.g., property owner] daily deposits human waste laden with phosphorus,  nitrogen and myriad contaminants into septic tanks and wastewater treatment  facilities that yield nutrients transported into the north IRL. These nutrients are a  primary source of the north IRL’s complete ecological collapse which includes the  obliteration of sea grasses and other forms of vegetation. The destruction of water quality, hyper-eutrophication and accordingly, absence of vegetation in the  north IRL has caused, is causing and will continue to cause manatee starvation,  suffering, illness and death. Such documented death and harm violate section 9,  the taking prohibition of the ESA.    

Defenders of Wildlife v. Administrator, EPA, 882 F.2d  1294, 1300-01 (8th Cir. 1989) (finding a federal agency proximately caused the the take of right whales);  

(Take of black-footed ferret through its registration of pesticides); Sierra Club v.Lyng, 694 F. Supp. 1260 (E.D. Tex. 1988), aff’d by Sierra Club v. Yeutter, 926 F.2d  429 (5th Cir. 1991) (holding the U.S. Forest Service liable for take because its even aged management plan allowed private companies to harvest timber in a way  that degraded the habitat of the endangered red-cockaded woodpecker): U.S. v.  Town of Plymouth, Mass., 6 F.Supp. 2d 81 (D. Mass. 1998) (holding the town liable  for take of endangered piping plovers that had either been run over or isolated  from their food source by off-road vehicles, which were allowed on the beach  pursuant to town policies). 28

The ESA defines “person” to include “any officer, employee, agent, department,  or instrumentality…of any State, municipality, or political subdivision of a State,  municipality or political subdivision of a State.”

16 U.S.C. § 1532(13). 

29 16 U.S.C. § 1540(g)(A). 

30 National Wildlife Federation v. Burlington Northern Railroad, 23 F.3d 1508,  1511 (9th Cir. 1994); Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1069 (9th Cir.  1996).  

31 16 U.S.C. § 1540(g)(2)(A)(i). 

32 Id. § 1540(g)(1)

A manatee feeding program in the north IRL must commence immediately.  Otherwise, manatee starvation will continue, and the manatee will become  extinct in the north IRL. 

Given that the ecological collapse of the north IRL has reached the  catastrophic point where the lagoon is devoid of vegetation and manatees have  no food, starvation will continue unless emergency measures are immediately  taken. Starvation is not acceptable. Allowing manatees to starve is itself a  violation of the Endangered Species Act. The proper response is immediate  implementation of a feeding program for manatees in the north IRL. Bear  Warriors United Executive Director Katrina Shadix has consulted with the Florida  Fish and Wildlife Conservation Commission to discuss a rescue mission to feed  manatees in the north IRL. Such feeding must continue indefinitely until water quality improves sufficiently for seagrass to successfully reestablish and provide  adequate food for this iconic Florida native. No doubt the lagoon’s cleanup will take years, but, as Ms. Shadix states, “This catastrophe is a manmade disaster and  requires a manmade solution.”

Bear Warriors United’s suggestions for a Manatee Feeding Program include the following elements: **Designation of manatee feeding sanctuaries in those areas of the north IRL  known for manatee aggregation, including, but not limited to the Port St. John  power plants, Haulover Canal and Manatee Cove.

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