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: bearwarriorsunited@gmail.com
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
manatees.15
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 https://myfwc.com/research/manatee/rescue-mortality-response/ume/
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 https://floridadep.gov/water/domestic-wastewater/content/reuse-statutory 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
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.
Stop The Starve 