There has been some understandable confusion about a recent solicitation by the federal government for public comment on the possible issuance of regulations authorizing the "take" of manatees. We hope that the following helps to resolve that confusion. Save the Manatee Club supports the issuance of these regulations under the circumstances explained below.

Under the Endangered Species Act and the Marine Mammal Protection Act, a federal agency -- such as the U.S. Army Corps of Engineers (Corps)--cannot undertake or permit any action (such as allowing a marina to be built) which "takes" ("kills," "harms," or harasses") an endangered marine mammal such as the manatee UNLESS the U.S. Fish and Wildlife Service (FWS) first issues regulations known as "incidental take regulations" which must establish stringent conditions for "effecting the least practicable adverse impact" on the species and its habitat. To issue these rules, the FWS must also make a finding that the activity is having no more than a "negligible" impact on the species.

Unfortunately, for the past two decades, the Corps and the FWS -- as well as other federal agencies, such as the Coast Guard -- have, with regard to manatees, totally disregarded this regulatory scheme which is designed, in large part, to PROTECT marine mammals from excessive, illegal "take." The result has been the RAMPANT ILLEGAL, UNAUTHORIZED take of manatees in connection with, for example, a multitude of Corps-permitted marinas, docks, boat ramps, etc., in manatee habitat.

In January, 2000, Save the Manatee Club (SMC) and 18 other environmental, animal welfare, and public interest groups (Plaintiffs) sued the Corps and the FWS for violations of federal laws designed to protect manatees. The recent settlement agreement between the Plaintiffs and the FWS and the Corps required, among other items, that these federal agencies go through the rulemaking process required by federal law because we believe that, if done the right way -- i.e., if it is based on sound science and legal requirements -- it can be extremely beneficial to manatees by, for the first time, subjecting Corps-permitted projects (and potentially the activities of other federal agencies, such as the Coast Guard, which approves high speed races in manatee habitat) to the very stringent requirements that must be met in order for "incidental take" regulations to be issued.

For example, we believe that these rules could be instrumental in finally getting counties to adopt the effective manatee protection plans they were supposed to adopt long ago -- on the theory that such plans are essential if the FWS is to find that new marinas, etc., will have no more than a "negligible" effect on manatees.

At the same time, of course, Save the Manatee Club does not, and will never, support the adoption of MMPA rules that do not actually further manatee survival, conservation, and recovery. We are convinced, however, that if such rules are based on sound science and follow the law, they could usher in a new era in manatee protection throughout Florida. Simply put, they could spell the difference between rampant, uncontrolled illegal "take" -- which is what is occurring now and has been taking place for years -- and a regulatory regime which imposes stringent, protective conditions on any "take" that does occur, including by ensuring, for example, that Corps-permitted projects, in cumulative effect, "effect the least practicable adverse impact" on manatees and manatee habitat.

Our position is:

The FWS must issue rules which carefully follow the law and sound science by

(1) addressing ALL of the ways in which Corps-permitted projects and other federal activities "take" manatees -- not only by increasing direct collisions with boats, but also by "harassing" manatees through disruption of their essential biological functions, and destroying sea grasses and other essential habitat features;

(2) adopting all conditions which are necessary to ensure that these activities have no more than a "negligible" impact on manatees, as required by the law -- including by mandating the development of effective, fully implemented manatee protection plans before additional marinas, docks, and other forms of water access can be approved;

(3) ensuring, as required by the law, that such activities "effect the least practicable adverse impact" on manatees and their habitat, "paying particular attention to rookeries, mating grounds, and areas of similar significance" -- including by requiring that effective sanctuaries and refuges be established as a precondition to any additional marinas, docks, etc. (this legal requirement reinforces an independent requirement in our settlement that the FWS designate new sanctuaries and refuges in order to further the recovery of the manatee);

(4) establishing objective, verifiable "triggers" so that any authorized activities (such as additional docks, marinas, etc.) would be suspended if the triggers are not met -- such as verifiable, significant reductions in manatee mortalities and serious injuries through boat collisions;

(5) establishing detailed "requirements pertaining to the monitoring and reporting" of any manatee "takes" that do occur, as required by the law -- which could greatly contribute to our knowledge base and hence assist with making future management and regulatory decisions, as well helping to determine when the "triggers" for additional remedial action should come into play.

In sum, if done the right way, the "incidental take regulations" -- while sounding ominous -- actually have the potential to tremendously help improve the situation facing manatees. Our job is to convince the FWS to do them the "right way." Of course, if the FWS does not do so -- and winds up issuing rules that "authorize" manatee takes without being based on sound science and/or without complying with the stringent standards set forth in the law -- Save the Manatee Club and the other Plaintiffs are fully prepared to go back to federal court seeking judicial review and relief, as we are entitled to do under our settlement agreement with the FWS and Corps.

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