Case 1:22-cv-00246 Document 1 Filed 02/01/22 Page 1 of 24
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`UNITED STATES DISTRICT COURT
`DISTRICT OF COLUMBIA
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`Case No.: ____________
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`CENTER FOR BIOLOGICAL DIVERSITY
`378 Main Street
`Tucson, AZ 85701;
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`DEFENDERS OF WILDLIFE
`1130 17th Street NW
`Washington, DC 20036;
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`SAVE THE MANATEE CLUB
`533 Versailles Dr., Ste 100
`Maitland, FL 32751,
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`U.S. FISH AND WILDLIFE SERVICE
`1849 C Street NW
`Washington, DC 20240,
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`and
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`Plaintiffs,
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`v.
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`Defendant.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 1:22-cv-00246 Document 1 Filed 02/01/22 Page 2 of 24
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`INTRODUCTION
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`Plaintiffs Center for Biological Diversity (Center), Defenders of Wildlife
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`1.
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`(Defenders), and Save the Manatee Club challenge the unlawfully withheld and/or unreasonably
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`delayed actions by the U.S. Fish and Wildlife Service (FWS) in failing to take final action on
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`Plaintiffs’ “Petition for a Rule to Revise Critical Habitat for the Florida Manatee” dated
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`December 19, 2008 (2008 Petition). In particular, FWS has failed to propose and finalize a
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`regulation to revise the critical habitat designation for the Florida manatee, despite finding in
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`January 2010 that a revision of critical habitat is “warranted” in order to provide for the
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`conservation of the manatee. 75 Fed. Reg. 1574 (Jan. 12, 2010). Critical habitat designation is
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`one of the essential mechanisms embodied in the Endangered Species Act (ESA) for ensuring the
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`survival and effectuating the recovery of imperiled species such as the Florida manatee.
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`2.
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`The Florida manatee (Trichechus manatus latirostris)1 was listed in the first class
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`of endangered species in 1967 under the Endangered Species Preservation Act, the forerunner to
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`the ESA. FWS designated critical habitat for the manatee in 1976, delineating waterways in
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`Florida that were known to be important concentration areas for manatees at that time.
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`3.
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`On December 19, 2008, the Center, Defenders, and Save the Manatee Club
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`petitioned FWS under the Administrative Procedure Act (APA) and ESA to undertake a
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`rulemaking to revise critical habitat for the Florida manatee because, during the preceding three
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`decades, Congress and FWS had changed the meaning of critical habitat, the original critical
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`habitat designation lacked elements required by those changes, and new scientific information
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`existed regarding where and how manatees used habitat since the designation.
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`1 References to “manatee” in this complaint refer to the Florida manatee.
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`4.
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`More than a decade ago, FWS determined that the revision was “warranted” to
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`protect the manatee’s habitat and promote the species’ recovery. This determination was
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`consistent with FWS’s earlier findings, in its own formal recovery plans for the manatee, that the
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`manatee’s critical habitat designation was outdated and needed to be revised. Yet FWS has never
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`undertaken the rulemaking process required to implement that long-overdue revision. Nor, given
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`FWS’s egregious delay, is there any likelihood that FWS will embark on the rulemaking in the
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`near future absent relief from this Court.
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`5.
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`Meanwhile, Florida manatees and their habitat continue to face dire and imminent
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`threats, including the loss of warm-water refuges and poor water quality that causes persistent
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`harmful algal blooms and a profound loss of seagrass, a crucial food source, leading to mass
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`starvation. Compounding these threats are a growing number of boat strikes and severe weather
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`events caused by climate disruption.
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`6.
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`In 2021, more than 1,100 Florida manatees died due to cold-related stress,
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`starvation, boat strikes, and toxic red tides. This reflects approximately 13% of the manatee’s
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`estimated total population and is more than double its five-year annual mortality average.
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`7.
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`Given the ever-worsening threats to the Florida manatee and its habitat, and in
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`light of the agency’s obligations to protect this species, FWS’s protracted failures to propose and
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`finalize a regulation to revise critical habitat in response to Plaintiffs’ 2008 Petition constitute
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`agency actions unlawfully withheld and unreasonably delayed in violation of the ESA and APA.
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`Plaintiffs seek declaratory and injunctive relief to remedy these violations, including an order
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`from the Court setting dates certain for FWS to act.
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`JURISDICTION AND VENUE
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`This Court has jurisdiction over this action under 16 U.S.C. § 1540(g) (ESA
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`8.
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`citizen suit provision)2 as well as 28 U.S.C. § 1331 because this case presents a federal question
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`under the laws of the United States, including the ESA and APA. An actual, justiciable
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`controversy exists between Plaintiffs and FWS. The APA waives FWS’s sovereign immunity. 5
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`U.S.C. § 702. The requested relief is proper under 28 U.S.C. §§ 2201–2202 (Declaratory
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`Judgment Act) and 5 U.S.C. §§ 701–706 (APA).
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`9.
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`Venue in this Court is proper under 28 U.S.C. § 1391(e)(1). This action is brought
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`against FWS, an agency of the United States, headquartered in Washington, DC. The
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`Department of the Interior, of which FWS is a component agency, is headquartered in
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`Washington, DC. In addition, Plaintiff Defenders is headquartered in Washington, DC, and
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`Plaintiff Center maintains an office in this judicial district.
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`PARTIES
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`Plaintiffs
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`10.
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`Plaintiff Center is a nonprofit 501(c)(3) organization incorporated in the State of
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`California with offices across the country, including in Washington, D.C., Arizona, California,
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`Florida, New York, North Carlina, Oregon, and Washington, and in Baja California Sur, Mexico.
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`The Center works through science and environmental law to advocate for the protection of
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`endangered, threatened, and rare species and their habitats both in the United States and abroad.
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`The Center has over 81,800 active members, including members who reside in and travel to
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`areas where manatees feed, breed, and migrate.
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`2 Plaintiffs provided notice of their intent to sue FWS for these violations more than 60 days ago.
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`11.
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`The Center brings this action on behalf of itself and its members, many of whom
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`enjoy observing, photographing, and appreciating the Florida manatee in its natural habitat. The
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`Center’s members regularly engage in these activities in various locations within Florida from
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`land and water and will continue to do so in the future.
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`12.
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`For example, one of the Center’s members resides in St. Petersburg, Florida, but
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`travels throughout Florida in the hopes of seeing wildlife, including the Florida manatee. She
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`photographs manatees while diving in their habitat, including in springs and nearshore waters of
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`St. Petersburg, St. Augustine, and the Florida Keys. She went on at least ten dive trips in the
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`summer of 2021 and has concrete plans to continue visiting these areas to see manatees and their
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`habitat in 2022 and the foreseeable future.
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`13.
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`Plaintiff Defenders is a nonprofit 501(c)(3) membership organization dedicated to
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`the protection and restoration of all native wild animals and plants in their natural communities
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`and the preservation of the habitats on which these species depend. Headquartered in
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`Washington, D.C., Defenders has regional and field offices in Alaska, Arizona, California,
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`Colorado, Florida, Montana, New Mexico, North Carolina, Ohio, Oregon, Texas, Washington,
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`and Wyoming. Defenders has nearly 2.2 million members and activists across the United States,
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`including more than 124,000 living in Florida where manatees live, feed, breed, and migrate.
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`14.
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`Defenders brings this action on behalf of itself and its members, many of whom
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`enjoy observing, photographing, and appreciating the Florida manatee in its natural habitat.
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`Defenders’ members regularly engage in these activities in various locations within Florida from
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`land and water and will continue to do so in the future.
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`15.
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`For example, one of Defenders’ members enjoys viewing manatees as often as
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`she can. A deciding factor in where she chose to live—Winter Park, Florida—was that the city is
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`near areas where she could view manatees. She enjoys regularly visiting a manatee aggregation
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`site in Blue Springs State Park in Orange City, Florida on any day when the temperature is cool
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`enough and she does not have conflicting obligations. This member has plans to see manatees in
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`the immediate future, including in January 2022. She is also the Advocacy Committee Co-Chair
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`of the Free the Ocklawaha River Coalition for Everyone, participates in the twice-yearly
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`Manatee Forum meeting hosted by the Florida Fish and Wildlife Conservation Commission
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`(FWC), and produces policy and outreach materials, comment letters, blog posts, and social
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`media posts about manatees. Moreover, this member has engaged in pro bono work to support
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`manatee conservation.
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`16.
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`Plaintiff Save the Manatee Club is a nonprofit 501(c)(3) membership organization
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`dedicated to the conservation of manatees. The organization was founded in 1981 by singer and
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`songwriter Jimmy Buffett and Governor of Florida Bob Graham. There are currently about
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`40,000 active members of SMC.
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`17.
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`Save the Manatee Club brings this action on behalf of itself and its members,
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`many of whom enjoy observing, photographing, and appreciating the Florida manatee in its
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`natural habitat. Save the Manatee Club is located in Maitland, Florida. Save the Manatee Club
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`members regularly engage in these activities in various locations within Florida from land and
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`water and will continue to do so in the future.
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`18.
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`For example, one of Save the Manatee Club’s longtime members is a native
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`Floridian who lives in Sanford and enjoys traveling around the region and state during the winter
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`months each year to see aggregations of wintering manatees. Her love of observing manatees and
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`sharing her passion for them led her to start volunteering in manatee conservation efforts over
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`the past several years, which she plans to continue doing indefinitely. One of her greatest joys is
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`giving presentations to school children at Blue Spring State Park to educate them about manatees
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`and the importance of Florida’s natural springs for the species. This member-volunteer
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`participates broadly in education, outreach, and conservation programs advocating for, enjoying,
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`and fostering a passion in others for manatees and their conservation both in her region and to
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`visitors from all over the world. This member has concrete plans to continue these efforts, view
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`manatees across the state, and engage people of all ages and backgrounds in observing and
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`conserving manatees in 2022 and beyond.
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`19.
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`Plaintiffs and Plaintiffs’ members are harmed by FWS’s failure to propose and
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`finalize a regulation in response to Plaintiffs’ 2008 Petition to revise the manatee’s designated
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`critical habitat designation as required by the ESA and APA. These failures are impeding the
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`survival and recovery of manatees, thereby decreasing Plaintiffs’ members’ opportunities to
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`observe and enjoy them in their natural habitats, and are facilitating the degradation and
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`destruction of manatee habitat in locations where Plaintiffs go to observe and enjoy manatees
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`and their habitats.
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`20.
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`FWS’s failure to revise manatee critical habitat in response to Plaintiffs’ 2008
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`Petition also harms and will continue to harm Plaintiffs’ and their members’ procedural interests
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`in ensuring prompt and lawful compliance with the ESA and APA, statutes that protect
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`Plaintiffs’ and their members’ underlying substantive interests in manatee protection and
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`recovery.
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`21.
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`An order from the Court directing FWS to complete rulemaking to revise the
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`long-overdue critical habitat designation for the Florida manatee will remedy Plaintiffs’ injuries
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`by helping to protect and recover manatees and protect manatee habitat in the areas where
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`Plaintiffs’ members observe and enjoy the species.
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`Defendant
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`22.
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`Defendant U.S. Fish and Wildlife Service is a federal agency within the U.S.
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`Department of the Interior. The Secretary of the Interior has delegated authority to administer the
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`ESA to FWS with respect to Florida manatees. This authority encompasses FWS’s obligations
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`regarding critical habitat.
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`STATUTORY FRAMEWORK
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`Endangered Species Act
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`23.
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`In 1973, recognizing that certain species “have been so depleted in numbers that
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`they are in danger of or threatened with extinction,” Congress enacted the ESA, 16 U.S.C. §§
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`1531–1544, “to provide a means whereby the ecosystems upon which endangered and threatened
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`species depend may be conserved, [and] to provide a program for the conservation of such
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`endangered species and threatened species.” Id. § 1531(a)(2), (b). Considered “the most
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`comprehensive legislation for the preservation of endangered species ever enacted by any
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`nation,” the ESA embodies the “plain intent” of Congress to “halt and reverse the trend toward
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`species extinction, whatever the cost.” TVA v. Hill, 437 U.S. 153, 180, 184 (1978).
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`24.
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`The ESA defines conservation as “the use of all methods and procedures which
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`are necessary to bring any endangered species or threatened species to the point at which the
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`measures provided pursuant to [the ESA] are no longer necessary.” 16 U.S.C. § 1532(3). The
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`ESA’s goal is not simply to prevent endangered and threatened species from becoming extinct
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`but to recover these species to the point where they no longer require the statute’s protections.
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`25.
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`The ESA requires FWS to protect imperiled species by listing them as
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`“endangered” or “threatened.” Id. § 1533(a)(1). A species is endangered if it “is in danger of
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`extinction throughout all or a significant portion of its range.” Id. § 1532(6). A species is
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`threatened if it “is likely to become an endangered species within the foreseeable future
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`throughout all or a significant portion of its range.” Id. § 1532(20).
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`26.
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`Once a species is listed, it receives a host of important protections designed to
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`prevent its extinction and aid its recovery, including one of the most crucial protections—
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`safeguards for its “critical habitat.” 16 U.S.C. § 1533(a)(3)(A).
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`27.
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`The legislative history of the ESA reveals that Congress recognized that the
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`protection of habitat is essential to the recovery of listed species:
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`[C]lassifying a species as endangered or threatened is only the first step in insuring
`its survival. Of equal or more importance is the determination of the habitat
`necessary for that species’ continued existence . . . If the protection of endangered
`and threatened species depends in large measure on the preservation of the species’
`habitat, then the ultimate effectiveness of the Endangered Species Act will depend
`on the designation of critical habitat.
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`H. REP. NO. 94-887 at 3 (1976). A critical habitat designation thus encompasses areas that
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`require proper management to ensure a listed species not only survives but also recovers.
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`28.
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`Critical habitat includes specific areas occupied by the threatened or endangered
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`species with “physical or biological features . . . essential to the conservation of the species and .
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`. . which may require special management considerations or protection,” as well as specific areas
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`unoccupied by the species that “are essential for the conservation of the species.” 16 U.S.C. §
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`1532(5)(A). The ESA requires FWS to designate critical habitat concurrently with listing a
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`species and, “from time-to-time thereafter as appropriate,” revise the critical habitat designation.
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`Id. § 1533(a)(3).
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`29.
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`Protecting a species’ critical habitat is crucial for the protection and recovery of
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`many listed species—particularly those that have become endangered or threatened because of
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`historical and ongoing habitat loss or degradation. Evincing Congress’ intent in enacting the ESA
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`to “require agencies to afford first priority to the declared national policy of saving” listed
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`species, TVA v. Hill, 437 U.S. at 185, section 7(a)(2) requires all federal agencies to ensure, in
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`consultation with FWS, their actions do not “jeopardize the continued existence” of any listed
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`species or “result in the destruction or adverse modification” of its designated “critical habitat.”
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`16 U.S.C. § 1536(a)(2). In this way, a critical habitat designation provides significantly increased
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`protections beyond those provided by listing alone. As a result, an inadequate or outdated critical
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`habitat designation undermines the essential species safeguards embodied in section 7(a)(2) of
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`the ESA.
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`30.
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`To ensure species at risk of extinction receive these essential habitat protections in
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`a timely manner, Congress prioritized the designation of critical habitat. Id. § 1533(a)(3), (b)(6);
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`see also id. § 1531(b) (statutory directive to “provide a means whereby the ecosystems upon
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`which endangered . . . and threatened species depend may be conserved”). FWS is required, “to
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`the maximum extent prudent and determinable,” to designate critical habitat for a species
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`“concurrently with making a determination” that it is endangered or threatened,” id. §
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`1533(a)(3)(A), (b)(6)(C), and within one year of issuing a rule proposing critical habitat, id. §
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`1533(b)(6)(A)(ii). The critical habitat designation must be based on “the best scientific data
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`available.” Id. § 1533(b)(2).
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`31.
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`Recognizing that critical habitat designations may become outdated and need to
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`be revised, Congress set forth a process and timetable for revising such designations. Any
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`“interested person” may petition FWS under the APA, 5 U.S.C. § 553(e), for a rulemaking to
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`revise designated critical habitat. 16 U.S.C. § 1533(b)(3)(D)(i). “To the maximum extent
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`practicable, within 90 days after receiving the petition,” FWS “shall make a finding as to
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`whether the petition presents substantial scientific information indicating that the revision may
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`be warranted” and “promptly publish such finding in the Federal Register.” Id.
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`32.
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`“Within 12 months after receiving a petition that is found under clause (i) to
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`present substantial information indicating that the requested revision may be warranted, the
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`[FWS] shall determine how [it] intends to proceed with the requested revision, and shall
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`promptly publish notice of such intention in the Federal Register.” Id. § 1533(b)(3)(D)(ii).
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`33.
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`Thereafter, FWS follows the rulemaking procedures specified by statute to
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`propose and finalize regulations revising critical habitat. Id. § 1533(b)(5), (6). Unless otherwise
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`specified in these subsections, the provisions of the APA, 5 U.S.C. § 553, apply to any regulation
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`promulgated to carry out the purposes of the ESA. 16 U.S.C. § 1533(b)(4).
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`34.
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`The ESA also requires that FWS “shall develop and implement” plans for the
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`recovery of listed species. Id. § 1533(f). Such plans must include, among other items, “a
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`description of . . . site-specific management actions as may be necessary to achieve the plan’s
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`goal for the conservation and survival of the species” and “objective, measurable criteria which,
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`when met, would result in a determination . . . that the species be removed from the list” of
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`endangered and threatened species. Id. § 1533(f)(1)(B).
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`35.
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`In addition to being legally mandated, critical habitat designations (and revisions
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`thereto) have proven empirically to be essential to the survival and recovery of imperiled species.
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`Species with critical habitat designations are twice as likely to recover as species without critical
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`habitat designations.
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`Administrative Procedure Act
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`36.
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`The APA establishes general rules governing the issuance of proposed and final
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`regulations by federal agencies. 5 U.S.C. §§ 551–559. It defines a “rule making” to mean the
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`“process for formulating, amending, or repealing a rule.” Id. § 551(5). Absent narrow
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`circumstances, a federal agency must publish notice of and allow public comment on any
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`proposed “rule making.” Id. § 553(b), (c).
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`37.
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`The APA establishes that “[e]ach agency shall give an interested person the right
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`to petition for the issuance, amendment, or repeal of a rule.” Id. § 553(e). It also requires that
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`“within a reasonable time, each agency shall proceed to conclude a matter presented to it.” Id. §
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`555(b). Further, the agency must give “prompt notice” of the “denial in whole or in part” of a
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`written petition, together with a “brief statement of the grounds for denial.” Id. § 555(e).
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`38.
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`The APA establishes judicial review provisions for agency actions that apply
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`unless statutes preclude judicial review or the action is committed to agency discretion by law. 5
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`U.S.C. §§ 701–706. “Agency action” is defined to include “the whole or a part of an agency rule,
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`order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. § 551(13)
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`(emphasis added). Under the APA’s judicial review provision, the reviewing court shall “compel
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`agency action unlawfully withheld or unreasonably delayed[.]” Id. § 706(1).
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`FACTS
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`The Florida Manatee
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`39.
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`The Florida manatee’s current range varies based on the season. In summer
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`months, manatees can be found as far west as Texas, as far north as Massachusetts, and as far
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`south as Cuba. Summer sightings in Alabama, Georgia, and the Carolinas are more common.
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`However, throughout the year manatees are largely concentrated in Florida.
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`40. Manatees can be found in shallow, slow-moving rivers, estuaries, saltwater bays,
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`canals, and coastal areas, particularly where seagrass or freshwater vegetation flourish.
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`41. Manatees are slow-moving mammals and most of their time is spent eating,
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`resting, and traveling. Manatees are herbivorous, eating a large variety of submerged, emergent,
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`and floating plants, and can consume 10-15% of their body weight in vegetation daily. They may
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`rest submerged at the bottom or just below the surface of the water but must surface to breathe
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`air an average of every three to five minutes.
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`42.
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`FWS designated critical habitat for the Florida manatee in 1976, delineating
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`specific waterways in Florida that were known to be important concentration areas for manatees
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`at that time. 41 Fed. Reg. 41,914 (Sept. 24, 1976). FWS made the 1976 designation before the
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`Act’s 1978 amendments requiring that critical habitat designations include a description of the
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`“physical and biological features essential to the conservation of the species,” and before FWS
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`developed critical habitat regulations and guidelines. Therefore, the manatee’s critical habitat
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`designation does not identify information that is required for critical habitat designations issued
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`after 1978, such as specific physical and biological features of occupied critical habitat essential
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`to the conservation of the species.
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`43.
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`FWS reclassified the Florida manatee from endangered to threatened in 2017. 82
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`Fed. Reg. 16,668 (Apr. 5, 2017). This reclassification did not affect the existing critical habitat
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`designation or otherwise alter applicable ESA statutory protections.
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`The Florida Manatee’s Imperiled Habitat
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`44.
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`Florida manatees need adequate designated critical habitat to survive and recover.
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`Their habitat faces numerous threats, including the loss of warm-water refuges, poor water
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`quality that causes persistent harmful algal blooms, and the loss of seagrass upon which
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`manatees rely as a vital food source.
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`45. Manatees cannot survive for long periods in waters colder than 68 F°. Manatees
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`exposed to cold water can develop cold stress syndrome, making them more vulnerable to other
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`threats. Cold stress syndrome can also lead to death.
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`46.
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`During the winter of 2009–2010, for example, Florida experienced extremely cold
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`weather for protracted periods. The FWC documented 282 manatee deaths directly attributable to
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`cold stress. The following year, FWC documented 114 deaths due to cold stress. Experts expect
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`an increase in number and severity of cold-water events in coming years due to climate change.
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`47. When water temperatures drop below 68 F°, manatees seek refuge in warm water.
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`Over half of Florida’s manatees seek refuge from cold water in the warm-water discharges of
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`power plant cooling water structures. Manatees that do not use human-made warm-water
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`discharges use natural springs and thermal basins. There are currently 14 “major” warm-water
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`sites (i.e., sites with at least one winter count of 50 or more manatees). Ten of these sites are
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`outfalls from power plant cooling systems and four are freshwater springs, which do not drop
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`below 70 F° even in winter months.
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`48.
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`Power companies will likely phase out power plant discharges within the next 30
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`years, while human-caused impacts, such as flow reductions and other activities, threaten
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`Florida’s naturally occurring springs and thermal basins. The threats to natural springs and
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`warm-water habitat include diminishing spring flows from groundwater withdrawals for bottling,
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`industrial and domestic use, obstructions that limit or preclude access, disturbance from
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`recreational activities, algae proliferation and loss of nearby forage resources, and sea level rise.
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`49.
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`FWC and FWS released an updated and revised the Florida Manatee Warm-Water
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`Habitat Action Plan in October 2020, which these agencies submitted to Florida Power and Light
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`in December 2020. The action plan envisions protecting regional networks of warm-water
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`refugia to help manatees transition away from power plants and other artificial warm-water sites.
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`Dependence on artificial sources is not sustainable, as facilities can experience outages and a
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`number of plants will likely shut down over the coming decades. FWS’s failure to update the
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`Case 1:22-cv-00246 Document 1 Filed 02/01/22 Page 15 of 24
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`Florida manatee’s designated critical habitat to reflect the best available scientific data on the
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`species’ warm-water habitat needs is an impediment to the effective implementation of the
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`Warm-Water Habitat Action Plan.
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`50.
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`As major power plant outfalls and natural warm-water springs are lost, manatees
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`are struggling to find habitat. Even when manatees can move to alternative sites, food supplies,
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`space, and temperatures for thermoregulating at alternative sites can be inadequate to support a
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`large influx of displaced animals. Restoring and protecting natural warm-water winter habitat,
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`like Crystal River National Wildlife Refuge and the Great Florida Riverway, are top
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`conservation priorities for the Florida manatee. For example, restoration of the Ocklawaha River,
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`a central linkage in the Great Florida Riverway, would allow hundreds of manatees to access
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`essential warm-water habitat in several of the Ocklawaha’s 20 freshwater springs and in Silver
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`River. This warm-water refuge is currently inaccessible for large numbers of manatees due to the
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`Kirkpatrick Dam and accompanying lock system that causes artificially high water levels,
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`covering up the Ocklawaha’s springs, and inhibiting large-scale manatee access to Silver River.
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`FWS’s failure to update the Florida manatee’s designated critical habitat to reflect the best
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`available scientific data on currently occupied as well as unoccupied critical habitat is an
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`impediment to the work necessary to restore and protect natural warm-water winter habitat.
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`Florida manatees seeking warmth from power plant discharges during winter, USGS
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`Recent Habitat Impacts and Related Manatee Mortality
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`51.
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`Increased human activity in areas supporting manatee populations also leads to
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`other sources of mortality. From 2016–2019, 478 manatees died as a result of boat collisions.
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`Each year saw more watercraft fatalities than the previous. In addition to mortalities, a Florida
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`Fish and Wildlife Research Institute report concluded that one out of every four manatees
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`analyzed bore evidence of ten or more watercraft strikes, and 96% of adult manatees had
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`watercraft-related scars. Between 1981 and 2020, about half of the manatee mortalities from boat
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`collisions occurred outside of designated critical habitat.
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`Adult manatee with scars from a boat propeller, Photo © Carol Grant
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`52.
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`Red tides in Florida are caused by the algal species Karenia brevis. When these
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`toxic algae become highly concentrated in ocean waters, the harmful algal blooms known as red
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`tides result. The brevetoxins that red tides produce can harm or kill manatees when the animals
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`inhale the toxins while swimming through the algal blooms or when they consume toxins that
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`have settled on seagrass, their primary food source. Red tide and other harmful algae blooms not
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`only harm manatees directly but can also smother and kill off the seagrasses manatees eat.
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`53.
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`In 2018, red tide events in southwestern Florida caused the deaths of at least 288
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`manatees. Though 2018 was the most catastrophic red tide-related mortality event to date, there
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`weremore than 30 confirmed red tide-related mortalities each year in 1996, 2002, 2003, 2005,
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`2006, 2007, 2012, 2013, 2016, 2017, 2018, 2019, and 2021. There were 100 or more red tide-
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`related mortalities documented in 1996, 2003, 2013, and 2018.
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`54.
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`Although red tides are a naturally occurring process, their timing and severity can
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`be influenced by natural factors, such as ocean currents, strong winds, and drought conditions, as
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`well as by anthropogenic factors, such as water pollution. Nitrogen and phosphorus, for example,
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`fuel algae growth, including red tide. Discharges from septic and sewer systems as well as
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`stormwater runoff are examples of ways nitrogen and phosphorus enter the surface waters and
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`contribute to harmful algal blooms.
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`55.
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`In March 2021, the Piney Point phosphate plant discharged more than 200 million
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`gallons of wastewater into Tampa Bay. This wastewater contained high levels of nutrient
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`pollutants such as ammonia, nitrogen, and phosphorus, which can significantly worsen harmful
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`algal blooms. Shortly after the Piney Point discharge, a red tide bloom appeared in Tampa Bay
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`and persisted for several months. Since June 2021, more than 30 manatees have died from red
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`tide in and around Tampa Bay.
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`56.
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`A 2021 Unusual Mortality Event declared under the Marine Mammal Protection
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`Act, 16 U.S.C. §§ 1421-1421h, on the Atlantic coast of Florida from Brevard County to Monroe
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`County, with the epicenter in the Indian River Lagoon in Brevard County, highlights another
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`water-quality-based threat facing the Florida manatee. More than 1,100 manatees died in Florida
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`in 2021. This amount is more than double Florida’s five-year annual manatee mortality average
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`and is about 13% of the Florida manatee’s estimated population. At least 50% of manatee deaths
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`in 2021 occurred in the Indian River Lagoon due to starvation and malnutrition from nutrient
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`pollution that depleted local seagrass beds by contributing to harmful algal blooms.
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`57.
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`For many years, the Indian River Lagoon has been recognized as the most
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`biodiverse estuary in North America and an important year-round habitat for manatees due to
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`historically abundant seagrass, which manatees eat, as well as an important warm-water re