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Petition To List Antillean Manatee As Endangered DPS
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Julio C. ColónCopyright:
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PETITIONTOLISTTHE
PuertoRicoPopulationofAntilleanManatee
asanEndangeredDistinctPopulationSegment
(Trichechusmanatusmanatus)
UNDERTHEENDANGEREDSPECIESACT
Photofromwww.drna.gov
PetitionSubmittedtotheU.S.SecretaryoftheInterior,
ActingthroughtheU.S.FishandWildlifeService
SubmittedOctober18,2021
Petitioner: JulioC.Colón,Esq.
ContactInformation: JulioC.Colón
1317EdgewaterDr#2946
OrlandoFL32804
(939)277-8913
juliocolon@utexas.edu
1
I. INTRODUCTION
Julio C. Colón (“Petitioner”) respectfully requests that the Secretary of the Interior,
acting
through
the
U.S.
Fish
and
Wildlife
Service
(“USFWS”),
list
the
Puerto
Rico
population
of
Antillean Manatee (T
richechus manatus manatus) as
a Distinct
Population
Segment
(“DPS”)
and as “endangered” under the U.S. Endangered Species Act (“ESA”) (16 U.S.C. §§
1531-1544), separate from the listing of the
species
as
a whole.
Petitioner
requests
that
the
ServicedesignatecriticalhabitatfortheDPSconcurrentwithlisting.
The West Indian manatee is a large aquatic mammal native to the coasts
along
the
Gulf of Mexico and Caribbean Sea. The species is divided into two subspecies based on
genetic and morphological studies, the Florida manatee (T
. m. latirostris), and the Antillian
manatee (T
. m. manatus). Worldwide, the Antillean manatee is listed as “endangered” and
“decreasing”
as
a subspecies
by
the
International
Union
for
Conservation
of
Nature
(“IUCN”).
It is currently listed as
a single
species
together
with
the
Florida
manatee
under
the
ESA
as
“threatened” throughout its range. It has a small range throughout Puerto Rico, where it is
considered to be endangered by the Puerto Rico Department of
Natural
and
Environmental
Resources
(“DRNA”
according
to
its
Spanish
initials).
Departamento
de
Recursos
Naturales
y
Ambientales,E
lmanatíenPuertoRico,WWW.DRNA.PR.GOV,h
ttps://www.drna.pr.gov/
noticias/el-manati-en-puerto-rico/
(September
6,
2021);
Departamento
de
Recursos
Naturales
y
Ambientales,
PUERTO
RICO
STATE
WILDLIFE
ACTION
PLAN:
TEN
YEAR
REVIEW
at
p.
23(2015),h
ttps://www.drna.pr.gov/wp-content/uploads/2015/10/PRSWAP-2015.pdf.
The Puerto Rico population qualifies as a DPS because it is both discrete and
significant. It is
discreet
because
it
is
geographically
separated
from
the
Greater
Antilles
and
continental
populations
by
the
prolonged
stretches
of
ocean.
It
is
significant
because
it
is
the
westernmost
population
of
the
Antillian
manatee,
and
its
loss
would
leave
a significant
gap
in
the taxonomic group. In addition, “[p]eripheral populations… are an important genetic
resource in that they may be beneficial to the protection of evolutionary processes and the
environmental systems that are likely to generate future
evolutionary
diversity”.
Endangered
and Threatened Wildlife and Plants; Designation of
Critical
Habitat
for
Jaguar, 79
Fed.
Reg.
12,572, at 12,574 (03/05/2014). Furthermore, it is the only population of Antillean manatee
which USFWS can directly affect under the ESA. Rathbun, Galen B. and Earl Possardt,
RECOVERY PLAN: PUERTO RICO POPULATION OF THE WEST INDIAN (ANTILLEAN)
2
MANATEE, U.S. Fish and Wildlife Service at 2 (December
24,
1986),
U.S.
Fish
and
Wildlife
Service,h
ttps://ecos.fws.gov/docs/recovery_plan/861224.pdf.
Threats include a fragmented population from agriculture and mining, habitat
degradation,
tourism,
pollution,
watercraft,
fishing
nets,
poaching.
Natural
threats
include
loss
of manatees due to hurricanes and temperature extremes caused by climate change.
Researchers estimate that only approximately 2500 Antillean manatees still survive in the
wild,
and
say
that
said
population
is
expected
to
decline
“20%
over
the
next
two
generations
(estimated
at
~40
years
for
an
unexploited
population,
based
on
T.
m.
latirostris
data)
without
effective conservation actions.” Deutsch et al., THE IUCN RED LIST OF THREATENED
SPECIES: Tʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ (2008), https://www.iucnredlist.org/species/22103/9356917.
The IUCN has cited
a population
as
low
as
128
members
of
West
Indian
manatee
in
Puerto
Rico, and no country has reported an increase in the population, except for the Bahamas,
which estimates to have less than 10 manatees. IUCN, THE IUCN RED LIST: Tʀɪᴄʜᴇᴄʜᴜꜱ
ᴍᴀɴᴀᴛᴜꜱ( SUPPLEMENTARYINFORMATION),WWW.IUCNREDLIST.ORG,h
ttps://www.
iucnredlist.org/species/pdf/9356917/attachment).
II. ENDANGEREDSPECIESACTANDIMPLEMENTINGREGULATIONS
The ESA was enacted “to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved, [and] to provide a
program
for
the
conservation
of
such
endangered
species
and
threatened
species.”
16
U.S.C.
§ 1531(b). ESA protections apply to species that have been listed as endangered or
threatened
according
to
the
provisions
of
the
statute.
Under
the
ESA,
the
Secretary
of
Interior
(“Secretary”)
has
authority
to
determine
whether
a species
should
be
listed
as
endangered
or
threatened, and the Secretary of Interior has delegated this authority to the Director of the
U.S.
Fish
& Wildlife
Service.
According
to
the
ESA,
an
“endangered”
species
is
one
that
is
“in
danger
of
extinction
throughout
all
or
a significant
portion
of
its
range.”
16
U.S.C.
§ 1532(6).
A
“threatened species” is one that “is likely to become an endangered species within the
foreseeable future throughout all or a significant
portion
of
its
range.”
16
U.S.C.
§ 1532(20).
USFWS must evaluate whether a species
is
threatened
or
endangered
as
a result
of
any
of
thefivelistingfactorssetforthin16U.S.C.§1533(a)(1):
1. The present or threatened destruction, modification, or
curtailment
of
its
habitat
orrange;
3
2. Overutilizationforcommercial,recreational,scientific,oreducationalpurposes;
3. Diseaseorpredation;
4. Theinadequacyofexistingregulatorymechanisms;or
5. Othernaturalormanmadefactorsaffectingitscontinuedexistence.
A taxon need only meet one of the listing criteria outlined in the ESA to qualify for federal
listing.50C.F.R.§424.11(c).
USFWS is required to make these listing determinations “solely on the basis of the
best scientific and commercial
data
available
to
[it]
after
conducting
a review
of
the
status
of
the species and after
taking
into
account”
existing
efforts
to
protect
the
species.
16
U.S.C.
§
1533(b)(1)(A);
50
C.F.R.
§ 424.11(b).
“The
obvious
purpose
of
[this
requirement]
is
to
ensure
that the ESA not be implemented haphazardly, on the basis of speculation or surmise.”
Bennett
v.
Spear, 520
U.S.
154,
175
(1997).
“Reliance
upon
the
best
available
scientific
data,
as opposed to requiring absolute scientific certainty, ‘is
in
keeping
with
congressional
intent’
that an agency ‘take preventive measures’ before a species is ‘conclusively’ headed for
extinction.” Ctr. for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1236 (W.D. Wash.
2003) (c iting Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 679-80 (D.D.C.1997)
(emphasisinoriginal)).
In making a listing determination, the Secretary has to give
consideration
to
species
which are “identified
as
in
danger
of
extinction,
or
likely
to
become
so
within
the
foreseeable
future, by any State agency or by any agency of a foreign
nation
that
is
responsible
for
the
conservation of fish or wildlife or plants.” 16
U.S.C.
§ 1533(b)(1)(B)(ii);
see
also
50
C.F.R.
§
424.11(f)
(stating
that
the
fact
that
a species
has
been
identified
by
any
State
agency
as
being
in
danger
of
extinction
may
constitute
evidence
that
the
species
is
endangered
or
threatened).
Listing
may
be
done
at
the
initiative
of
the
Secretary
or
in
response
to
a petition.
16
U.S.C.
§
1533(b)(3)(A).
Upon
receiving
a petition
to
list
a species,
the
Secretary
must
determine
“whether
the
petition
presents
substantial
scientific
or
commercial
information
indicating
that
the
petitioned
action
may
be
warranted.”
16
U.S.C.
§ 1533(b)(3)(A).
This
finding
is
termed
a “90-day
finding.”
A “positive” 90-day
finding
leads
to
a status
review
and
a determination
whether
the
species
will be listed, to be completed within twelve months.
16
U.S.C.
§1533(b)(3)(B).
A “negative”
4
initial
finding
ends
the
listing
process,
and
the
ESA
authorizes
judicial
review
of
such
a finding.
16 U.S.C. § 1533(b)(3)(C)(ii). The applicable regulations define
“substantial”
information,
for
purposes of consideration of petitions, as “credible scientific or commercial information in
support of the petition's claims such that a reasonable person conducting an impartial
scientific
review
would
conclude
that
the
action
proposed
in
the
petition
may
be
warranted.”
50
C.F.R.§424.14(h)(1)(i).
For petitions to add a listed species or change a listing status of a species, the
regulations
specify
five
types
information
that
guide
the
Service’s
consideration
on
whether
a
petitionprovides“substantial”information:
1. Information on current population status and trends and estimates of current
populationsizesanddistributions,bothincaptivityandthewild,ifavailable;
2. Identification of the factors under section 4(a)(1) of the Act that may affect the
speciesandwherethesefactorsareactinguponthespecies;
3. Whether and to what extent any or all of the factors alone or in combination
identified in section 4(a)(1) of the Act may cause the species to be an
endangered species or threatened species (i.e., the species is currently in
danger of
extinction or
is
likely
to
become so within the
foreseeable future),
and,
if
so,
how high
in
magnitude and how
imminent the threats to
the species and its
habitatare;
4. Information on adequacy of regulatory protections and effectiveness of
conservation activities
by
States
as
well
as
other
parties, that
have been
initiated
orthatareongoing,thatmayprotectthespeciesoritshabitat;and
5. A complete, balanced representation of the
relevant
facts,
including
information
thatmaycontradictclaimsinthepetition.50C.F.R.§§424.14(d).
The language of the regulation (by setting the “reasonable person” standard for substantial
information) and relevant case law underscore the point that the ESA does not require
“conclusive
evidence
of
a high
probability
of
species
extinction”
in
order
to
support
a positive
90- day finding. Ctr. for Biological Diversity v. Morgenweck, 351 F.
Supp.
2d
1137,
1140
(D.
Colo.
2004);
see
also
Moden
v.
U.S.
Fish
& Wildlife
Serv., 281
F.
Supp.
2d
1193,
1203
(D.
Or.
2003) (holding that the substantial information standard is defined in “non-stringent
terms”).
On
the
contrary,
the
courts
have
held
that
the
ESA
contemplates
a “lesser
standard
by
which
a
petitioner
must
simply
show
that
the
substantial
information
in
the
Petition
demonstrates
that
listing of the species may be warranted.”
Morgenweck, 351
F.
Supp.
2d
at
1141
(quoting
16
U.S.C.§1533(b)(3)(A)).
5
In 1996, the Service and the National Marine Fisheries Service jointly published
standards for defining a Distinct Population Segment. Policy Regarding the Recognition of
Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed.
Reg.
4,722
(February
7,
1996).
This
definition
provides
that
in
order
to
qualify
as
a DPS,
a species
must
be
a vertebrate
that
is
both
discrete
from
other
populations
of
the
species
and
significant
tothespeciesasawhole.Thesetermsaredefinedasfollows:
Discreteness: A population segment of
a vertebrate
species may
be
considered
discreteifitsatisfieseitheroneofthefollowingconditions:
1. It
is
markedly
separated
from other
populations of
the same taxon
as a consequence of physical, physiological, ecological, or behavioral
factors. Quantitative measures of genetic or morphological discontinuity
mayprovideevidenceofthisseparation.
2. It is delimited by international governmental boundaries within
which differences in control of exploitation, management of habitat,
conservation status,
or
regulatory mechanisms exist
that
are
significant
in
lightofsection4(a)(1)(D)oftheAct.
Significance: If a population segment is
considered discrete under one
or
more
of
the above conditions, its biological and ecological significance will then be
considered in light of
Congressional guidance [.
. .]
that
the
authority to
list
DPSs
be used ‘‘.
. . sparingly’’ while
encouraging the
conservation of
genetic diversity.
In carrying out this examination, the Services will consider available scientific
evidence of the discrete population
segment’s importance to
the taxon
to which
it
belongs.Thisconsiderationmayinclude,butisnotlimitedto,thefollowing:
3. Persistence of the discrete population segment in an ecological
settingunusualoruniqueforthetaxon,
4. Evidence that
loss of
the
discrete
population
segment
would
result
inasignificantgapintherangeofataxon,
5. Evidence that
the
discrete population segment represents the
only
surviving natural occurrence of a taxon that may be more abundant
elsewhereasanintroducedpopulationoutsideitshistoricrange,or
6. Evidence that the discrete population segment differs markedly
from other populations of the
species
in
its
genetic
characteristics.
Id.
at
4,725.
Although these criteria are “non-regulatory” and serve only as policy guidance for the
agencies, USFWS is committed to using these criteria
for
evaluating
DPSs
such
as
the
one
describedinthispetition(Id.at4,723).
6
III. CLASSIFICATIONANDNOMENCLATURE
Taxonomy:
The
petitioned
species
is
the
Puerto
Rico
Distinct
Population
Segment
of
Trichechus
manatus
manatus. The
IUCN
recognizes
two
subspecies
of
West
Indian
Manatee
— the Florida (T
. m. latirostris), which is found primarily along the southeastern and gulf
coasts of the US, and Antillean
(T
.
m.
manatus) subspecies,
which
includes
the
Puerto
Rico
subspecies and extends throughout the Greater Antilles and along the Caribbean coasts
of
Central and South America. Deutsch et al., THE IUCN RED LIST OF THREATENED
SPECIES: Tʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ; See Figure 1 for
distribution.
T.
m.
manatus
is
smaller
and
has different cranial measurements than latirostris. Deutsch
et
al.,
THE
IUCN
RED
LIST
OF
THREATENEDSPECIES:T
ʀɪᴄʜᴇᴄʜᴜꜱᴍᴀɴᴀᴛᴜꜱ.
Figure
1.
Distribution
of
species
and
subspecies
of
manatee.
Daniel
Gonzalez-Socoloske,
Gentle
Giants in Dark Waters: Using Side-Scan Sonar
for
Manatee
Research, 5 The
Open
Remote
Sensing
Journalat2(2012).
ThefullspeciestaxonomycanbefoundinTable1.
Table1.
7
Kingdom Animalia
Class Mammalia
Phylum Chordata
Order Sirenia
Family Trichechidae
Genus Trichechus
Species manatus
Subspecies manatus
DPS PuertoRicopopulation
IV. SPECIESDESCRIPTION
The Antillean manatee
is
a large,
slow-moving
aquatic
mammal
native
to
the
Greater
Antilles
and
Caribbean
coasts
of
Central
and
South
America.
A comprehensive
description
of
the
physical
description,
behavior,
life
cycle,
and
population
can
be
found
in
the
1986
recovery
plan for the Puerto Rico population of the Antillean Manatee. Rathbun, RECOVERY
PLAN:
PUERTORICOPOPULATIONOFTHEWESTINDIAN(ANTILLEAN)MANATEE,at1-3.
V. HABITATREQUIREMENTS
In Puerto Rico, the species occurs primarily around the eastern coast,
Vieques,
and
the
southern
coast.
Id.
at
3-5.
Few,
if
any,
sightings
occur
in
the
northwestern
coast.
Id.
at
4.
Manatees
generally
dwell
in
lagoons,
estuaries,
slow-moving
rivers,
bays,
and
shallow
coastal
areas.
Id
.
at
5-6.
Manatee
sightings
have
been
reported,
and
caracasses
have
been
retrieved
from areas such as the Lagoon of
Condado,
Lagoon
of
Carolina,
and
Boqueron.
In
general,
Puerto
Rico
manatees
require
calm
water
and
available
aquatic
vegetation.
Id.
at
6.
Protected,
quiet areas are required for manatees to mate, nurse their young, rest, and
serve
as
travel
corridors between feeding and drinking areas. Deutsch et al., THE IUCN RED LIST OF
THREATENED SPECIES: Tʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ. That stated, the Antillean manatee is
described as “mysterious” when compared to the Florida manatee. National Geographic,
PhotoArk:AntilleanManatee,WWW.NATIONALGEOGRAPHIC.COM,h
ttps://www.national
8
geographic.com/animals/mammals/facts/antillean-manatee/. And according to the IUCN,
“there has been no statistically derived population estimates [. . .] within its [the Antillean
manatee’s] range [. . .].”
Deutsch
et
al.,
THE
IUCN
RED
LIST
OF
THREATENED
SPECIES:
Tʀɪᴄʜᴇᴄʜᴜꜱᴍᴀɴᴀᴛᴜꜱ.
The Antillean manatee’s population is described as discontinuous and prone to
fragmentation. See Castelblanco-Martínez1, Delma Nataly et
al.,
Potential
Effects
of
Human
Pressure and Habitat Fragmentation on Population Viability of the Antillean Manatee
Trichechus Manatus Manatus: A Predictive Model, 18 Endangered Species Research 129,
130 (2012) (The
distribution
of
the
Antillean
manatee
is
discontinuous,
mostly
due
to
coastal
border fragmentation and marine currents [. . .]”;
also
see
Hunter,
Margaret
E.
et
al.,
Puerto
Rico
and
Florida
Manatees
Represent
Genetically
Distinct
Groups, 13
Conservation
Genetics
1623 (2012) (“Natural manatee gene flow may also be restricted by coastal anthropogenic
colonization and habitat destruction (Lefebvre et al. 2001). Within Puerto Rico, this could
result
in
a smaller,
fragmented,
less
diverse
or
less
sustainable
population.”).
The
Puerto
Rico
population’s
dependency
on
shoalweed
(H
alodule
wrightii),
turtegrass
(T halassia
testudinum),
and manatee grass (S
yringodium filiformis) continues to contribute even more to its
disintegration owing to loss of these food resources due to boating, construction, pollution,
and algae bloom (U
.S. Fish and Wildlife Service & Sea Grant Puerto Rico, ANTILLEAN
MANATEE (T
ʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ ᴍᴀɴᴀᴛᴜꜱ), WWW.FWS.GOV,
https://www.fws.gov/southeast/pdf/fact-sheet/manatee-english.pdf) (a
lso see Qiuying Han &
Dongyan Liu, Macroalgae
Blooms
and
Their
Effects
on
Seagrass
Ecosystems, 13
Journal
of
Ocean University of China 791, 791 (2014) (Macroalgae blooms directly and indirectly
constrictseagrassgrowthandrecruitment).
A manatee eats roughly ten to fifteen percent of its body weight in seagrass daily,
mothers nurse their young for one to two years. Save the Manatee, FLORIDA MANATEE
FASTFACTS,WWW.SAVETHEMANATEE.ORG(2021),h
ttps://www.savethemanatee.org/wp-
content/uploads/2016/08/fact_sheet.pdf. As such, dense areas of seagrass are required to
support
even
a small
population
of
healthy
adults.
U.S.
Fish
and
Wildlife
Service
& Sea
Grant
Puerto Rico, ANTILLEAN MANATEE (T
ʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ ᴍᴀɴᴀᴛᴜꜱ) at 1. The gestation
period for a manatee is about one year, and calves remain with their mothers one to two
years.
Id.; Save
the
Manatee
Club,
Reproduction, WWW.SAVETHEMANATEE.ORG.
Because
of
this
long
period
of
gestation
and
calf-rearing,
manatee
populations
are
slow
to
recover
from
9
threats
such
as
habit
fragmentation,
pollution,
hurricanes,
and
watercraft-related
deaths.
See
generally Mignucci-Giannoni, Antonio et al., Manatee Mortality in Puerto Rico. 25
Environmental Management 189 (2000) (regarding causes of death of Puerto Rico’s
manatees). The Puerto Rico population does not migrate, and any loss to the number of
reproducing
adults
will
not
be
replaced
from
other
manatee
populations,
even
from
the
larger
Florida population. U.S. Geological Survey, Isolation of Puerto Rico's Manatees Affects
SurvivalOdds,WWW.SCIENCEDAILY.COM(October252012),h
ttps://www.sciencedaily.
com/releases/2012/10/121025145233.htm (“New evidence shows there
is
no
cross-breeding
between endangered manatees
in
Puerto
Rico
and
those
in
Florida,
resulting
in
less
genetic
diversity
in
Puerto
Rico's
small
manatee
population
and
impacting
its
odds
of
survival.”);
also
see
generally
Hunter
et
al.,
Puerto
Rico
and
Florida
Manatees
Represent
Genetically
Distinct
Groups.
Antillean manatees use rivers, bays, lagoons, estuaries and calm coastal waters as
travel corridors between foraging areas and necessary fresh water sources. Deutsch et al.,
THE IUCN RED LIST OF THREATENED SPECIES: Tʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ. As such, the
conservation of Antillean manatees requires the conservation of seagrass and clean, quiet,
low-traffic waterways. Id. The recovery of the Antillean manatee in
Puerto
Rico
depends
on
the protection of seagrass prairies, the regulation of watercraft speed limits, the zoning of
docking and coastal construction (near river and sea), raising awareness and regulating
fishing
net
use,
and
vigilance
against
pollution
and
dumping.
U.S.
Fish
and
Wildlife
Service
&
SeaGrantPuertoRico,A
NTILLEANMANATEE(T
ʀɪᴄʜᴇᴄʜᴜꜱᴍᴀɴᴀᴛᴜꜱᴍᴀɴᴀᴛᴜꜱ)at2-3.
VI. GEOGRAPHICDISTRIBUTION
In
the
earliest
aerial
surveys
since
the
original
listing
of
the
West
Indian
manatee
under
the
ESA,
manatees
were
sighted
in
all
11
zones
of
the
main
island
of
the
archipelago
except
for zone 11. Rathbun, RECOVERY PLAN: PUERTO RICO POPULATION OF THE WEST
INDIAN (ANTILLEAN) MANATEE, at
5A.
In
the
island
of
Vieques,
manatees
were
sighted
in
all zones except for 4c and 4d. Id. at 5B. These aerial sightings, conducted in 1986, led
researcherstoestimateagrandtotalof836totalmanateeswith66ofthembeingcalves.Id.
10
Figure 2. Distribution of manatees around Puerto Rico. Rathbun, RECOVERY PLAN:
PUERTORICOPOPULATIONOFTHEWESTINDIAN(ANTILLEAN)MANATEE,at5A.
Figure 3. Distribution of manatees around Puerto Rico. Rathbun, RECOVERY PLAN:
PUERTORICOPOPULATIONOFTHEWESTINDIAN(ANTILLEAN)MANATEE,at5B.
According to the Puerto Rico Department
of
Natural
and
Environmental
Resources
(“DRNA”
according to the official
Spanish
initials),
the
species
remains
in
danger
of
extinction,
and
its
11
most significant habitat is Bahia de Jobos (Jobos Bay) in the south of the main island.
DepartamentodeRecursosNaturalesyAmbientales,E
lmanatíenPuertoRico.
Figure
4.
Map
of
Jobos
Bay
National
Estuarine
Research
Reserve
(JBNERR)
in
southeastern
Puerto
Rico.
Whitall,
David
R.,
Bryan
M.
Costa,
Laurie
J.
Bauer,
Angel
Dieppa,
and
Sarah
D.
Hile (eds.), A BASELINE ASSESSMENT
OF
THE
ECOLOGICAL
RESOURCES
OF
JOBOS
BAY, PUERTO RICO, NOAA Technical Memorandum NOS NCCOS 133 at 11 (2011),
https://repository.library.noaa.gov/view/noaa/669.
USFWS has never
designated
critical
habitat
for
the
Antillean
manatee.
The
only
two
places where the Antillean manatee has received significant protection has
been
Roosevelt
Roads Naval Station and Jobos Bay National Estuarine Research Reserve, “due to Navy
restrictions and Commonwealth protection, respectively.” Rathbun, RECOVERY PLAN:
PUERTO RICO POPULATION OF THE WEST INDIAN (ANTILLEAN) MANATEE, at 11.
However, Roosevelt Roads Naval Station closed in 2004, and a significant amount of that
property went for sale at public auction. Navy Base Realignment and Closure Program
Management Office, Former Naval Station Roosevelt Roads, WWW.BRACPMO.NAVY.MIL
(2021),h
ttps://www.bracpmo.navy.mil/brac_bases/southeast/former_ns_roosevelt_roads.html
#chart.
.
12
VII. POPULATIONSTATUS
Since these original aerial surveys, manatee populations are estimated to have
dwindled to a total of 128. IUCN, THE IUCN RED LIST: Tʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ
(SUPPLEMENTARY INFORMATION). According to the Puerto Rico Department of Natural
and Environmental Resources, the species remains in danger of extinction, and its most
significant habitat is Bahia de Jobos (Jobos Bay) in the south of the main island.
Departamento
de
Recursos
Naturales
y Ambientales,
El
manatí
en
Puerto
Rico. Officially,
the
USFWS estimated a minimum population of 342. Endangered and Threatened Wildlife and
Plants;
Reclassification
of
the
West
Indian
Manatee
From
Endangered
to
Threatened,
82
Fed.
Reg.16668,16670(April5,2017),h
ttps://www.fws.gov/northflorida/Manatee/2017%20
Reclass/WIM_Reclass_FR_2017-06657.pdf. The wide range of opinions was, according to
the Marine Mammal Commission, because they are not based on scientific data, but the
opinion of local experts. Lent, Rebecca J., LETTER TO FWS ON PROPOSED
RECLASSIFICATION OF THE WEST INDIAN MANATEE FROM ENDANGERED TO
THREATENED, Marine Mammal Commission at page 3 (April 8, 2016),
https://www.mmc.gov/wp-content/uploads/16-04-08-Herrington-West-Indian-Manatee-ESA-Re
classification.pdf. Conservationists continue to analyze data and revise estimates based on
more
reliable
methods
of
estimating
population
based
on
the
aerial
surveys.
See
for
example,
Collazo, Jaime A. et al., Population Estimates of Antillean Manatees in Puerto Rico: An
Analytical
Framework
for
Aerial
Surveys
Using
Multi-Pass
Removal
Sampling, 100
Journal
of
Mammalogy1340(July,272019),h
ttps://academic.oup.com/jmammal/article/100/4/
1340/5505441 (estimates based on summary of aerial surveys using multi-pass removal
sampling yields population estimate of 386 ± 89). However, the population of Puerto
Rico’s
Antilleanmanateesisconsideredtobedecliningbyallaccounts.
VIII. LISTINGHISTORY
The West Indian manatee was listed as endangered under the ESA on March 11,
1967. Florida Fish and Wildlife Commission, MANATEE TIMELINE: 1966-1975,
WWW.MYFWC.COM (2021), https://myfwc.com/education/wildlife/manatee/timeline/. Both
subspecies
were
listed
without
respect
to
any
DPS.
U.S.
Fish
and
Wildlife
Service
Southeast
Region, WEST INDIAN MANATEE (T
ʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ) 5-YEAR REVIEW: SUMMARY
13
AND EVALUATION, WWW.FWS.GOV at page 36 (2007),
https://www.fws.gov/northflorida/Manatee/2007%205-yr%20Review/2007-Manatee-5-Year-Re
view-Final-color-signed.pdf (“New research on population genetics in Florida and in Puerto
Rico
is
underway,
and
we
will
investigate
whether
manatees
in
each
of
these
areas
could
be
considered as distinct populations when that information becomes available.”). The West
Indian manatee was designated a marine mammal protected under the Federal Marine
Mammal
Protection
Act
in
1972.
Florida
Fish
and
Wildlife
Commission,
MANATEE
TIMELINE:
1966-1975. Critical habitat for the West Indian manatee was described in 1976 in 50 CFR
17.95; these areas only included
areas
within
Florida.
U.S.
Fish
and
Wildlife
Service,
WEST
INDIANMANATEET
ʀɪᴄʜᴇᴄʜᴜꜱᴍᴀɴᴀᴛᴜꜱ,WWW.FWS.GOV(2021),h
ttps://www.fws.gov/
southeast/wildlife/mammals/manatee/#recovery-plans-section.
In 1986, USFWS published the Recovery Plan for the Puerto
Rico
Population
of
the
West
Indian
(Antillean)
Manatee
(T
richechus
manatus
manatus), which
recommended
among
other
measures,
“Long
term
habitat
protection
[.
. .].”
Rathbun,
RECOVERY
PLAN:
PUERTO
RICO POPULATION OF THE WEST INDIAN (ANTILLEAN) MANATEE, at “EXECUTIVE
SUMMARY”.
Though,
to
date
no
critical
habitat
for
the
Antillean
manatee
subspecies
has
ever
been designated in Puerto Rico or elsewhere. USFWS revised the Manatee Recovery Plan
Objectives in 1996 to include assessing and minimizing causes of
manatee
mortality
and
injury,
protecting
essential
habitat,
determining
and
monitoring
the
status
of
the
manatee
population
and
essential habitat, and coordinating and overing cooperative work for recovery. U.S. Fish and
Wildlife Service Southeast Region, FLORIDA MANATEE RECOVERY PLAN,
WWW.FWS.GOV(January29,1996),h
ttps://www.fws.gov/northflorida/Manatee/Recovery%
20Plan/1996_FWS_Florida_Manatee_Recovery_Plan.pdf. On October 30, 2001, USFWS
released the 3rd Revision to Florida Manatee Recovery Plan which presented “criteria for
potential future reclassification of the Florida manatee to threatened status as well as for
removal
from
the
list
of
threatened
and
endangered
species.”
U.S.
Fish
and
WIldlife
Service,
3rd Revision to Florida Manatee Recovery Plan Completed, WWW.FWS.GOV (October 30,
2001), https://www.fws.gov/northflorida/Releases-01/014-01-Manatee-Recov-Plan-done.htm)
(3rdrevisionavailableath
ttps://www.fws.gov/northflorida/Manatee/Recovery%20Plan/
manatee-recovery-plan.htm).
Between 2002 and 2010, USFWS revised manatee protections and broadened
protections
several
times,
though
these
actions
only
affected
the
Florida
subspecies.
(S ee
for
14
example, U.S. Fish and WIldlife Service, U.S. Fish and
Wildlife
Service
finalizes
13
Federal
manatee protection areas in eight Florida counties, WWW.FWS.GOV (November 1, 2002),
https://www.fws.gov/northflorida/Releases-02/011-02-Final-MPA-design-110102.htm).
On March 18, 2003,
USFWS
reached
a settlement
with
Save
the
Manatee
Club,
and
the Federal DIstrict
Court
issued
an
order
formalizing
an
agreement
whereby
USFWS
would
submit
a proposed
rule
for
designation
of
protection
areas
for
public
comments,
place
signage
in existing manatee refuges (in Florida
only),
and
to
consult
with
Save
the
Manatee
Club
on
various issues. Save the Manatee
Club
v.
Ballard, Civil
No.
1:00CV00076
EGS/JMF
(D.D.C.
Mar.18,2003),h
ttps://casetext.com/case/save-the-manatee-club-v-ballard-2.
On April 5, 2017, USFWS reclassified the species as threatened under the ESA.
Endangered
and
Threatened
Wildlife
and
Plants;
Reclassification
of
the
West
Indian
Manatee
From Endangered to Threatened, 82 Fed. Reg. at
16668.
Though
the
public
emphasized
in
various comments that the Antillean manatee merited separate consideration as a DPS,
USFWS did not consider whether to list the Puerto Rico population as a DPS, seemingly
because
that
was
not
a point
at
issue
— the
petition
under
review
being
only
to
reclassify
the
species as a whole. See id. at pages 16680 (“The Marine Mammal Commission (MMC)
commented that, because Florida and Antillean manatees constitute genetically and
morphologically distinct subspecies, they merit independent consideration for purposes of
listing
decisions
under
the
Act.
[.
. . USFWS
states
in
response
that
t]he
12-month
finding
and
proposed
rule
addressed
the
petition
we
received
requesting
that
the
West
Indian
manatee
be
reclassified from endangered to threatened under the Act.”); 16681 (“The Service was
petitioned to evaluate the status of
the
West
Indian
manatee
across
its
entire
range
and
not
only the Antillean
subspecies
or
the
Puerto
Rico
population.”);
and
16686
(“The
Service
was
petitioned to evaluate the status of the West Indian manatee across its entire range.
It,
not
onlytheAntilleansubspecies,isthelistedentity.”).
IX. QUALIFICATIONASADISTINCTPOPULATIONSEGMENT
A. Discreteness
The
Antillean
manatee
is
recognized
as
a subspecies
apart
from
the
Florida
manatee.
The Puerto Rico population of Antillean manatee does
not
travel
outside
of
the
archipelago.
Lent, LETTER TO FWS ON PROPOSED RECLASSIFICATION OF THE WEST INDIAN
15
MANATEE FROM ENDANGERED TO THREATENED at 1 (“Florida
and
Antillean
manatees
constitute genetically and morphologically distinct subspecies of West
Indian
manatees
with
almost no movement of individuals between their ranges [. . .]”). Therefore, it is genetically
distinct in its own respect from the other populations of Antillean manatee
in
the
rest
of
the
Caribbean. Before the reclassification of the species as
a whole
to
threatened,
USFWS
has
always
considered
the
Puerto
Rico
population
as
a separate
management
unit
apart
from
the
Florida population. See U.S. Fish and Wildlife Service, Caribbean Ecological
Services
Field
Office, STOCK ASSESSMENT REPORT: WEST INDIAN MANATEE (T
ʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ)
PUERTO RICO STOCK (ANTILLEAN SUBSPECIES, Tʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ ᴍᴀɴᴀᴛᴜꜱ),
WWW.FWS.GOV(January2014),h
ttps://www.fws.gov/ecological-services/es-library/pdfs/
West-Indian-Manatee-PR-Final-SAR.pdf. In fact, USFWS concluded based
on
telemetry
and
genetic studies that the Puerto Rico manatee should be treated “as a separate stock of
Antillean
manatees”.
Lent,
LETTER
TO
FWS
ON
PROPOSED
RECLASSIFICATION
OF
THE
WEST
INDIAN
MANATEE
FROM
ENDANGERED
TO
THREATENED
at
page
5.
The
isolation
of various groups of the Antillean manatee suggest that the populations
in
Puerto
Rico,
the
Dominican
Republic,
and
Cuba
all
constitute
a separate
DPS,
and
evidence
suggests
that
the
lack of movement between the Nicaragua and Colombia populations may warrant
considerationofthosetwopopulationseachasaDPS.Id.atpage6.
It
is
also
important
to
note
that
these
possible
DPS
groups
are
all
under
separate
legal
jurisdictions and face different threats based on the weather, human-related threats, legal
protections, and scientific study. Severe weather from Hurricane Maria caused the
displacement
and
possible
deaths
of
an
unknown
number
of
manatees
in
Puerto
Rico
in
2017.
See
for
example
Metro
Puerto
Rico,Buscan
ayuda
para
traer
a P.
R.
dos
manatíes
de
Santa
Cruz,METRO(May10,2018),h
ttps://www.metro.pr/pr/noticias/2018/05/10/buscan-ayuda-
traer-p-r-dos-manaties-santa-cruz.html (regarding conservationists attempting to rescue two
manatees from Puerto Rico spotted around Saint Croix). Poaching remains a risk to the
Antillean manatee throughout its range. Deutsch et al., THE IUCN RED LIST OF
THREATENED SPECIES: Tʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ. Legal protection is insufficient in many
jurisdictions,
and
scientific
tracking
is
sparse,
in
fact
most
population
estimates
of
the
Antillean
manatee are considered anecdotal by the IUCN. See Id. (“In a few countries, localized
populations may be increasing; in most countries, reports indicate a significant
decline
over
the past 30-50 years, but this is based solely on anecdotal evidence and/or
interviews
with
local
people.”).
Perhaps
most
importantly,
the
Puerto
Rico
population
of
the
Antillean
manatee
16
is
the
only
segment
of
the
species
under
U.S.
jurisdiction,
and
while
the
IUCN
considered
the
subspecies as endangered and declining throughout its range, it is without the protections
meritedbyanendangeredspeciesundertheESA.
U.S. laws provide little authority to implement actions needed to protect species
outside
its
borders.
The
power
of
USFWS
to
prevent
the
killing
of
manatees
and
destruction
of
their habitat in foreign countries is limited 1)
to
prohibiting
unauthorized
importation
of
listed
species into the U.S.; 2) prohibiting persons subject to U.S. jurisdiction from engaging in
commercial transport or sale of listed species in foreign
commerce;
and
3)
assisting
foreign
entities with education, outreach, and other aspects of conservation through its authority in
section
8 of
the
ESA.
The
“take”
prohibitions
of
the
ESA
only
apply
within
the
U.S.,
within
the
territorial seas of the U.S., and on the high
seas,
but
not
in
the
various
countries
where
the
majority of Antillean manatees
live.
Section
7 of
the
ESA
provides
for
all
federal
agencies
to
use
their
authorities
to
carry-out
programs
for
the
conservation
of
the
species,
and
to
ensure
that any action authorized, funded, or implemented by the
agency
is
not
likely
to
jeopardize
the continued existence of listed species or adversely modify its critical habitat. However
useful
this
power
is
in
the
destruction
of
a protected
specie’s
habitat,
USFWS
is
powerless
to
employsection7outsidetheboundariesoftheU.S.
The U.S. is more capable of protecting the Antillean manatee inside of its legal
jurisdiction
than
within
foreign
jurisdictions.
As
described
elsewhere
in
this
petition,
the
Puerto
Rico population of Antillean manatee represents the only group of its subspecies which
USFWS
has
the
potential
to
directly
protect.
Therefore,
the
U.S.
should
ensure
that
it
is
doing
everything
in
its
power
to
protect
the
Puerto
Rico
population
of
Antillean
manatee
over
which
it
hasjurisdiction.
B. Significance
The Puerto Rico population is the easternmost breeding population of Antillean
manatee;
therefore,
it
is
present
in
a unique
ecological
setting
for
the
subspecies.
It
does
not
migrate towards Florida, nor throughout the rest of the Greater
Antilles
or
Caribbean,
and
it
has been present in Puerto Rico since pre-Columbian times and was a food
source
for
the
natives of Puerto Rico, the Taino. There is no debate between scientists that Florida and
Puerto Rico manatees are distinct populations, but research suggests
that
the
probability
of
intermingling
between
the
Puerto
Rico
population
and
other
Antillean
manatee
populations
is
17
equally low. See Hunter et al., Puerto Rico and Florida Manatees Represent Genetically
Distinct
Groups
at
page
1631
(“Immigration
to
Puerto
Ricofrom
outside
sources
is
most
likely
low, since the nearby islands are believed to have biologically insignificant manatee
populations (Jamaica and the Dominican Republic), or none at all [. . .]. Genetic
supplementation
from
the
western
Caribbean
populations
(e.g.
Cuba
and
Central
America)
is
not expected [.
. .],
especially
since
the
Florida
and
Belize
manatee
populations
were
shown
to
have
no
detectable
nDNA
admixture
[.
. .]
.”).
Thus,
its
loss
would
result
in
a significant
loss
in
the
genetic
diversity
of
the
taxon,
particularly
as
the
Puerto
Rico
population
represents
not
only a genetically distinct population, but also one so geographically separated. See
Endangered
and
Threatened
Wildlife
and
Plants;
Designation
of
Critical
Habitat
for
Jaguar, 79
Fed.
Reg.
12,574
(“[P]opulations
at
the
edge
of
a species’
range
play
a role
in
maintaining
the
total genetic diversity of a species; in some cases, these peripheral populations persist the
longestasfragmentationandhabitatlossimpactthetotalrange”).
The
Puerto
Rico
population
is
also
necessary
for
possible
reintroduction
efforts
in
other
parts
of
the
Caribbean.
Genetic
diversity
is
necessary
in
order
to
ensure
stable
populations
in
these areas, and because no successful repopulation program has concluded to date, the
Puerto Rico population remains significant. See generally UNEP Caribbean Environment
Programme, REGIONAL MANAGEMENT PLAN FOR THE WEST INDIAN MANATEE
(Tʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ), CEP Technical Report 48, pages 106-113 (2010),
https://www.fws.gov/caribbean/pdf/manateemanagementplan.pdf (section entitled “Possible
Reintroduction of Manatees: A Consideration for Enhanced Conservation and Research”).
Regarding
the
significance
of
the
Puerto
Rico
population
to
the
subspecies
as
a whole,
Puerto
Rico is the only population on which some
telemetry
data
has
been
collected,
but
it
has
not
been thoroughly
published,
and
global
conservationists
consider
this
information
to
be
highly
useful
to
the
species
as
a whole.
See
UNEP
Caribbean
Environment
Programme,
REGIONAL
MANAGEMENT PLAN FOR THE WEST INDIAN MANATEE (T
ʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ) at
page
123 (“Habitat use by individual manatees through the use of radio-telemetry [. . .] is
desperately needed and should be given a high priority. Telemetry data
have
also
not
been
thoroughly published
and
this
information
is
vital
to
further
understanding
of
the
species’
use
ofhabitat.”).
Because
such
a small
portion
of
the
Antillean
manatee’s
range
is
under
US
jurisdiction,
the
recovery
of
the
entire
subspecies
will
rely
primarily
on
actions
that
occur
outside
of
the
US.
18
The Puerto RIco population represents the easternmost extent of the Antillean manatee’s
current
range.
Peripheral
populations
such
as
these
are
an
important
genetic
resource
in
that
they may be beneficial to the protection of evolutionary processes and the environmental
systems that
are
likely
to
generate
future
evolutionary
diversity.
Endangered
and
Threatened
WildlifeandPlants;DesignationofCriticalHabitatforJaguar,79Fed.Reg.12,574.
X. IDENTIFIEDTHREATSTOTHEPETITIONEDSPECIES:CRITERIAFORLISTING
USFWS must
evaluate
whether
a species
is
“threatened”
or
“endangered”
as
a result
ofanyoneofthefivelistingfactorsfoundin16U.S.C.§1533(a)(1):
1. The present or threatened destruction, modification, or curtailment
of
its
habitatorrange;
2. Overutilization for commercial, recreational, scientific, or educational
purposes;
3. Diseaseorpredation;
4. Theinadequacyofexistingregulatorymechanisms;or
5. Othernaturalormanmadefactorsaffectingitscontinuedexistence.
A. (Factor A) The Present or Threatened Destruction, Modification, or
CurtailmentofHabitatorRange
Habitat loss. Puerto Rico supports few remaining areas of calm water with
plentiful
aquatic vegetation near freshwater sources, and the ongoing decline of seagrass beds has
been
documented
for
over
a decade.
See
Ariel
E.
Lugo
& Gary
L.
Miller
G.,
GUIDE
TO
THE
ECOLOGICAL SYSTEMS OF PUERTO RICO, USDA General Technical Report IITF-35 at
231-233(June2009)(punctuationandboldsadded):
[S]eagrass beds are in a state of decline or
disappearing in
many areas of
the
world where an estimated 100,000 hectares (247,000 acres) have been lost.
[.
.
.]
PuertoRico is no
exception. [.
. .]
The coastal zones throughout the
globe are
undergoing the greatest increases in human population, and this is where
seagrasses occur. Many anthropogenic activities will continue to degrade and
accelerate the loss of
seagrass beds. Following is
a list
of
some of
the
important
stressors that can cause
the
decline or
extirpation of
seagrass beds. Stressors
are known to both reduce species diversity and cause species shifts (Hemminga
and Duarte 2000). All of these are ongoing in the Caribbean, and most are
affectingPuertoRico’sseagrasspopulations.
Anthropogenic stressors: Dredge/fill operations; Industrial effluent (organic
and inorganic); Municipal effluent; Oil spills; Agricultural nutrient enrichment
19
(especially nitrates and phosphates); Sedimentation from construction and
agriculture; Motor boat props and wave scouring; Harbor and marine
development; Commercial fishing techniques that disrupt the benthic zone;
Treasure hunting (use of sucker dredges and drag lines); Extirpation of large
vertebrate grazers, such as sea turtles and manatees; Power plants
(temperature change); Effects associated with El Niño and global climate
change; Commercial cropping of seagrasses for aquaculture; Recreation
tramplingandanchorscarring;Introducedalienspecies.
Natural stressors: Storm scouring (especially hurricanes); Excessive grazing
by herbivorous predators; Algae blooms; Seasonal temperature changes;
Salinity change associated with storms; Diseases, such as the
slime-mold-induced wasting disease; Excessive sedimentation from terrestrial
erosion.
In
addition
to
manmade
factors
such
as
coastal
building
and
pollution
resulting
in
algal
growth,
“hurricanes
Irma
and
María
(September
2017)
caused
significant
damage
to
shallow
seagrass
communities
across
Puerto
Rico.”
E.
A.
Hernández-Delgado,
et
al,
Hurricane
Impacts
and
the
Resilience
of
the
Invasive
Sea
Vine,
Halophila
stipulacea:
a Case
Study
from
Puerto
Rico, 43
EstuariesandCoasts1263(2020).
Habitat
fragmentation.
A major
threat
cited
by
researchers
is
the
fragmentation
of
the
Antillean manatee’s population. IUCN cites “indiscriminate development of the coasts and
degradation of aquatic environments” as “major threats” to the survival of the Antillean
manatee. Deutsch et al., The IUCN Red List of Threatened Species: Trichechus manatus
(2008). Regarding coastal development, the National Oceanic and Atmospheric
Administration cites, “Of the total population of 3.6 million in
Puerto
Rico,
2.4
million
people
live in coastal portions of the territory.” Office for Coastal Management, Fast Facts: Puerto
Rico, NOAA,
https://coast.noaa.gov/states/puerto-rico.html. As
of
August
2021,
the
DRNA
has
had to intervene in various illegal coastal construction projects. See for example Quintero,
Laura M., Abogado del DRNA denuncia que la construcción en Sol y Playa continuó
ilegalmente
[Lawyer
of
DRNA
denounces
that
construction
at
Sol
y Playa
continues
illegally],
ELNUEVODÍA(July7,2021),h
ttps://www.elnuevodia.com/noticias/locales/notas/abogado-
del-drna-denuncia-que-la-construccion-en-sol-y-playa-continuo-ilegalmente/.
B. (Factor B) Overutilization for Commercial, Recreational, Scientific, or
EducationalPurposes
20
Manatees have not been a staple meat for humans in the Antilles since the
destruction of
the
Caribbean’s
indigenous
cultures.
That
stated,
the
amount
of
damage
done
to the manatee population as a direct result of what can be termed as “recreational” is
shocking. In the only scientific paper addressing manatee mortality in Puerto Rico,
researchers
note
that
between
1990
and
1995
(while
the
Antillean
manatee
was
still
listed
as
endangered under the ESA), 52.2% of
manatee
deaths
were
due
to
human
interaction,
with
over
half
of
those
deaths
due
to
human
capture
and
8.5%
of
them
due
to
animals
being
shot
or speared. Mignucci-Giannoni et al., Manatee Mortality in Puerto Rico. 25 Environmental
Management
189,
194 (2000);
Also
see
U.S.
Fish
and
Wildlife
Service,
Caribbean
Ecological
Services Field Office, STOCK ASSESSMENT REPORT: WEST INDIAN MANATEE
(Tʀɪᴄʜᴇᴄʜᴜꜱ ᴍᴀɴᴀᴛᴜꜱ) PUERTO RICO STOCK (ANTILLEAN SUBSPECIES, Tʀɪᴄʜᴇᴄʜᴜꜱ
ᴍᴀɴᴀᴛᴜꜱ ᴍᴀɴᴀᴛᴜꜱ) at
page
7 (“After
the
rescue
of
a baby
manatee
in
1991,
and
subsequent
media uproar because its mother was poached, capture by fisherman has been virtually
eliminated.”). From January 1, 2021 through July 1, 2021, the DRNA (the Puerto Rican
Department of Natural and Environmental Resources) discovered 9 manatee carcasses
throughout the island, 5 of those were deemed to have been caused by collisions with
watercraft, and the other 4 deaths remain under investigation. Telemundo, Recursos
Naturales investiga hallazgo de manatí muerto en
Humacao, TELEMUNDO
PUERTO
RICO
(July1,2021),h
ttps://www.telemundopr.com/noticias/puerto-rico/recursos-naturales-investiga-
hallazgo-de-manati-muerto-en-humacao/2231627/. Given that outside of Puerto Rico illegal
hunting by poachers is a major
problem,
it
is
not
unreasonable
to
conclude
that
recreational
killings of manatees continue to occur within Puerto
Rico
as
well.
See
Mignucci-Giannoni
et
al., Manatee Mortality in Puerto Rico at page 189 (“Illegal hunting
and
the
contamination
of
coastal habitats by industrial discharge also
constitute
a serious
problem.”).
Considering
the
low
birth
rate,
degradation
of
habitat,
and
small
size
of
the
Puerto
Rico
population
of
Antillean
manatee, the fact that any recreational hunting and/or capture occurs at all is frankly
abhorrent
and
all
the
more
reason
to
designate
the
Puerto
Rico
population
as
an
endangered
DPS.
C. (FactorC)Diseaseorpredation
While sharks, crocodiles, and orcas have been known to occasionally
kill
manatees,
these occurrences are rare because manatees inhabit relatively shallow water, and
thus
do
not encounter orcas and
sharks
living
in
the
waters
surrounding
Puerto
Rico,
though
attacks
21
do occur. See for example UNEP Caribbean Environment Programme, REGIONAL
MANAGEMENT
PLAN
FOR
THE
WEST
INDIAN
MANATEE
(T ʀɪᴄʜᴇᴄʜᴜꜱ
ᴍᴀɴᴀᴛᴜꜱ) (“In
2001,
an
adult
manatee
was
recovered
in
northeastern
Puerto
Rico
with
signs
of
a shark
attack,
the
first confirmed report of shark predation on a West Indian manatee [. . .]”).
Though,
habitat
degradation
and
corridor
disruption
could
cause
the
Puerto
Rico
population
to
venture
further
into sea in order to find suitable foraging grounds. Disease, on the other hand, is a larger
factor
in
manatee
mortality
than
predation.
The
scientific
study
on
manatee
mortality
in
Puerto
Rico
cited
above
notes
that
10.0%
of
the
deaths
were
due
to
illness.
Mignucci-Giannoni
et
al.,
Manatee Mortality in Puerto Rico at page 189. In the past, various manatee deaths were
attributed to toxoplasmosis, a parasitic illness
that
normally
spreads
from
cats.
See
Agencia
EFE, Investigarán la salud de los manatíes, WWW.INDICEPR.COM,
https://www.indicepr.com/noticias/2014/08/11/action/25792/investigaran-la-salud-de-los-manat
ies/ (August 11, 2014) (four manatees died of
toxoplasmosis
in
2011);
and
Endangered
and
Threatened Wildlife and Plants; Reclassification of the West Indian Manatee From
Endangered to Threatened, 82 Fed. Reg. at 16694 (“However, disease-related deaths are
known to occur in West Indian manatees. Recent cases of toxoplasmosis are a concern in
PuertoRico[...]”).
D. (FactorD)TheInadequacyofExistingRegulatoryMechanisms
Federal.
The
Antillean
manatee
was
listed
as
an
endangered
species
under
the
ESA
March 11, 1967. Florida Fish and Wildlife Commission, MANATEE TIMELINE: 1966-1975.
However,
on
March
30,
2017,
USFWS
reclassified
the
West
Indian
manatee
— including
the
Antillean subspecies — as threatened. Endangered and Threatened Wildlife and Plants;
Reclassification
of
the
West
Indian
Manatee
From
Endangered
to
Threatened, 82
Fed.
Reg.
at
16668.
In
the
process
leading
up
to
that
decision,
various
public
comments
cited
reasons
why
the
Puerto
Rico
population
of
the
Antillean
manatee
should
be
classified
as
a DPS
and
remain
listed
as
endangered
even
if
Florida
subspecies
were
to
be
reclassified.
See
for
example
Lent,
LETTER
TO
FWS
ON
PROPOSED
RECLASSIFICATION
OF
THE
WEST
INDIAN
MANATEE
FROMENDANGEREDTOTHREATENEDatpage1:
Florida and Antillean
manatees constitute
genetically and morphologically distinct
subspecies of West Indian manatees with almost no movement of individuals
between their ranges (Domning and Hayek 1986). As such, these two
subspecies merit independent consideration for purposes of listing decisions
under
the ESA.
In
particular,
improvement in
the
status of
the
Florida
subspecies
22
and reduction in
the
threats
it
faces,
should have no
bearing
on
a listing
decision
for the Antillean subspecies unless it too is showing similar increases in
abundanceandreductioninthreats.
Also
see
Endangered
and
Threatened
Wildlife
and
Plants;
Reclassification
of
the
West
Indian
ManateeFromEndangeredtoThreatened,82Fed.Reg.at16685:
The downlisting of the West Indian manatee is based on the successful
population growth
and stability
seen
in
Florida,
but largely
ignores
the remaining
threats in Central and South America, for
which the Service
admits
that
it
lacks
quantitativeinformation.
Petitioner
concurs
with
the
substance
of
those
comments,
and
assert
that
the
reasoning
behind those comments have only increased with the increase in global warming, the
massivecatastrophesofhurricane’sIrmaandMaria,andloosenedlegalprotections.
Thus, as
a threatened
species,
the
Puerto
Rico
population
of
Antillean
manatee
is subject to scaled back protections, despite the scientific community having never
recorded a recovery comparable to that of its Florida cousin. That stated, the current
protections extended to
the
Florida
manatee
are
currently
being
called
into
question
by
conservation
groups,
and
in
August
2021
Florida
representatives
submitted
legislation
to
classify
the
West
Indian
manatee
as
endangered
under
the
ESA.
A Bill
to
Designate
the
West
Indian
Manatee
as
an
Endangered
Species
Under
the
Endangered
Species
Act
of
1973, H.R. 4946, 117th Congr. (2021); also see Congressman Vern Buchanan,
Buchanan, Soto Introduce Bill to Upgrade Manatees to “Endangered”,
WWW.BUCHANAN.HOUSE.GOV(August9,2021),h
ttps://buchanan.house.gov/media-
center/press-releases/buchanan-soto-introduce-bill-upgrade-manatees-endangered
(“Save the Manatee Club supports the bold decisive actions of Congressmen Vern
Buchanan
and
Darren
Soto.
The
tragic
loss
of
nearly
20%
of
the
Florida
manatees’
East
Coast population in just 6 months alone, confirms what a tragic mistake it was for
manateestobeprematurelytakenoffthelistofEndangeredSpecies”).
The Antillean manatee is still protected by the Marine Mammal Protection Act.
However,
the
prohibitions
in
that
act
in
regard
to
takings
and
incidental
taking
do
not
provide
significant protection for the Antillean manatee which
primarily
lives
in
a shallow
water,
near
shorehabitat.
23
Puerto
Rico.
The
DRNA
is
empowered
by
The
New
Wildlife
Law
of
Puerto
Rico
(Law
No. 241 of August 15, 1999) to protect Puerto Rico’s wildlife. Departamento de Recursos
Naturales y Ambientales, PUERTO RICO STATE WILDLIFE ACTION PLAN: TEN YEAR
REVIEW
at
page
19.
The
DRNA
classifies
priority
species
according
to
the
International
Union
for
the
Conservation
of
Nature
(IUCN)
Red
List,
and
hence,
it
considers
the
Antillean
manatee
to be an endangered species in greatest need of conservation. Id. 19-23. Among its
conservation efforts, the DRNA operates the “Programa de
Rescate
de
Mamíferos
Marinos”
(Marine
Mammal
Rescue
Program),
which
seeks
to
assist
marine
mammals
along
the
coast
of
Puerto Rico. In July 2021, the Marine Mammal Rescue Program was able to successfully
transfer
a manatee
stranded
on
a beach
in
the
city
of
Humacao
to
the
Manatee
Conservation
Center in Bayamon, Puerto Rico, though that individual
later
succumbed
to
its
injuries.
EFE
News, Muere el manatí rescatado en Humacao, WWW.EFE.COM (July 18, 2021),
https://www.efe.com/efe/usa/puerto-rico/muere-el-manati-rescatado-en-humacao/50000110-4
589406.
Manatee
populations
in
both
Florida
and
Puerto
Rico
experienced
an
alarming
decline
in
2021.
Given
that
biologists
never
suspected
a recovery
in
the
Puerto
Rico
population
of
the
Antillean
manatee
even
in
2017
when
the
species
as
a whole
was
reclassified,
it
is
reasonable
to conclude that current federal and
Puerto
Rico
regulations
are
inadequate,
and
the
Puerto
RicopopulationofAntilleanmanateeshouldbelistedasanendangeredDPSundertheESA.
E. (Factor E) Other Natural or Man-made Factors Affecting its Continued
Existence
Boat Collisions. Boat collisions are considered the number cause of death for
the
West Indian manatee in regard to both its Florida and Antillean subpopulations. Out of the
nine
manatee
carcasses
found
as
of
July
this
year
in
Puerto
Rico,
the
DRNA
determined
five
of them to be watercraft related. Telemundo PR, Recursos Naturales investiga hallazgo de
manatí muerto en Humacao, WWW.TELEMUNDOPR.COM (July 1, 2021),
https://www.telemundopr.com/noticias/puerto-rico/recursos-naturales-investiga-hallazgo-de-m
anati-muerto-en-humacao/2231627/.
Building
Activities.
According
to
the
USDA,
coastal
building
is
a major
threat
for
sea
grass
prairies
in
Puerto
Rico.
Lugo,
GUIDE
TO
THE
ECOLOGICAL
SYSTEMS
OF
PUERTO
24
RICO, USDA General Technical Report IITF-35 at 231-233 (pointing to harbor and marine
development
as
anthropogenic
activity
harming
seagrass
beds).
The
DRNA
has
demonstrated
weakness in its own enforcement as well. See article
mentioned
above
Quintero, Abogado
del DRNA
denuncia
que
la
construcción
en
Sol
y Playa
continuó
ilegalmente. More
than
two
thirds
of
the
population
of
Puerto
Rico
lives
in
coastal
areas.
Office
for
Coastal
Management,
Fast Facts: Puerto
Rico, NOAA.
Anthropogenic
activities
along
the
coasts
are
a major
threat
for the manatee because, as discussed above, manatees depend on seagrass prairies for
survival.
Climate change. The IUCN and other conservationist organizations cite climate
change
as
a threat
to
various
habitats
inhabited
by
the
Antillian
manatee.
Deutsch
et
al.,
THE
IUCNREDLISTOFTHREATENEDSPECIES:T
ʀɪᴄʜᴇᴄʜᴜꜱᴍᴀɴᴀᴛᴜꜱ.
Genetics. The Antillean manatee as a whole is characterized by its fragmented
population. The Puerto Rico population does not intermix with either Florida manatees, or
Antillean
manatees
from
elsewhere
in
the
Caribbean.
Therefore,
the
shrinking
genepool
poses
a threat to the overall health of the population, as well as the potential recovery of the
subspecies as a whole. See Hunter et al., Puerto Rico and Florida Manatees Represent
Genetically
Distinct
Groups
at
1632
(“Since
diversity
is
considered
necessary
for
adaptation
to
diseases and environmental changes, the low diversity may increase the extinction risk for
Puerto Rico manatees [. . .]”); and U.S. Geological Survey, Isolation of Puerto Rico's
Manatees Affects Survival Odds (“[T]he population's genetic diversity is low, a fact which
decreases a wildlife population's capacity to
adapt
to
changing
conditions
and
rebound
after
criticaleventsthatcancausedeaths,suchashurricanes,boatstrikes,ordisease.”).
Extreme Weather (Hurricanes).
Hurricanes
are
cited
as
a catalyst
in
the
destruction
of seagrass. E. A. Hernández-Delgado, et al, Hurricane Impacts and the Resilience of the
Invasive
Sea
Vine,
Halophila
stipulacea:
a Case
Study
from
Puerto
Rico. In
2017,
Puerto
Rico
experienced two category five hurricanes which resulted in significant impact on seagrass
beds. Edwin A. Hernández-Delgado et al., SEAGRASS RAPID ASSESSMENT OF
HURRICANE MARÍA IMPACTS – NORTHEAST RESERVES SYSTEM HABITAT FOCUS
AREA (NER-HFA), CULEBRA ISLAND, PUERTO RICO – FINAL REPORT, Sociedad
AmbienteMarino(May10,2018),h
ttps://www.drna.pr.gov/wp-content/uploads/2018/06/
25
Culebras-seagrass-assessment-after-hurricane-Maria-SAM-compressed.pdf. That stated, the
aftermath
of
those
hurricanes
directly
impacted
the
manatee
population
of
Puerto
Rico,
either
displacing
or
killing
members
of
the
local
subpopulation.
See
article
cited
above, Metro
Puerto
Rico,B
uscanayudaparatraeraP.R.dosmanatíesdeSantaCruz.
Algae and Pollution. Red tide, the phenomenon of red algae caused by pollutants
and in turn producing toxins, has ravaged manatee
populations
in
Florida.
Gabe
Stern,
Red
Tide Suspected as Manatees Deaths Pile Up in Tampa Bay, TAMPA BAY TIMES (July 24,
2021),h
ttps://www.tampabay.com/news/environment/2021/07/24/red-tide-suspected-as-
manatees-deaths-pile-up-in-tampa-bay/
(brevetoxins
released
by
red
tide
suspected
cause
of
deaths of eight manatees found over a seven-day span starting July 15); and article cited
above, Congressman
Vern
Buchanan,
Buchanan,
Soto
Introduce
Bill
to
Upgrade
Manatees
to
“Endangered” (spike in manatee deaths to 890 in first half of 2021 attributable to loss of
seagrass and red tide). Although red tide blooms have not caused significant damage in
Puerto Rico, massive buildups of
Pelagic
Sargassum, a type
of
seaweed,
have
increased
in
recent
years,
and
these
increases
are
shown
to
deleteriously
affect
seagrass
populations
that
manatees
depend
on.
Valeria
Chávez
et
al.,
Massive
Influx
of
Pelagic
Sargassum
spp.
on
the
Coasts of
the
Mexican
Caribbean
2014–2020:
Challenges
and
Opportunities, 12
Water
2908
(2020),h
ttps://www.mdpi.com/2073-4441/12/10/2908/htm:
[T]he most adverse consequences occur when the sargasso reaches the
coast
(Figure 1). The beached decaying algal masses produce leachates and
particulate organic matter,
causing
sargasso-brown-tides, which deplete oxygen,
reduce light and deteriorate water quality [14]. This leads to the death of the
nearshorebenthiccommunities(includingseagrasses)andfauna[7,14].
Also see Rafy Rivera, El sargazo pelágico invade
la
bahía
de
Las
Croabas
en
Puerto
Rico,
WWW.CNNESPANOL.CNN.COM(June18,2021),h
ttps://cnnespanol.cnn.com/2021/06/18/
sargazo-pelagico-invade-bahia-las-croabas-puerto-rico-orix/ (Spanish-language article
accompaniedbyvideoofrecentextremesargassumbloomsinPuertoRico).
XI. CONCLUSIONANDREQUESTEDDESIGNATION
In
close,
Petitioner
highlights
that
a separate
listing
as
a DPS
is
justified
because
of
its
discreteness and significance, and the ongoing and future threats to the Puerto Rico
population specifically. Conservationists continue to
record
threats
to
Puerto
Rico
population
of Antillean manatee which constitute at least three, and arguably five, of the five listing
26
factors
under
the
ESA,
the
most
dire
being
the
present
or
threatened
destruction,
modification,
or
curtailment
of
its
habitat
or
range;
inadequate
regulatory
mechanisms;
and
other
natural
or
manmadefactorsaffectingitscontinuedexistence.
Furthermore, according to 16 U.S.C. § 1533(b)(1)(B)(ii) and 50 C.F.R. § 424.11(f),
when considering a petition USFWS must give weigh as evidence the designation by state
agencies or foreign nations of a species as endangered, and as mentioned above, the
government
agency
responsible
for
the
conservation
of
wildlife
in
Puerto
Rico,
the
DRNA,
has
identified the Antillean manatee as in danger of extinction. Finally, USFWS has already
outlined in Policy Regarding the Recognition of Distinct Vertebrate Population Segments
Under the Endangered Species Act, 61 Fed. Reg. 4,722 (February 7, 1996) that in
designating
a population
as
a DPS
it
will
consider
with
regard
to
the
population’s
significance
to the species as a whole “[e]vidence that the discrete population
segment
differs
markedly
from other populations of the species in its genetic
characteristics.”
As
cited
throughout
this
petition, there is scientific agreement not only that the Puerto Rico population of Antillean
manatee
constitutes
a genetically
distinct
group
from
that
of
the
Florida
manatee,
but
also
that
there is no evidence for intermingling between the Puerto Rico population and other
populationsofAntilleanmanatees.
For these reasons, Petitioner requests the U.S. Fish and Wildlife Service under the
Department
of
Interior
to
classify
the
Puerto
Rico
population
of
Antillean
manatee
(T richechus
manatus
manatus) as
a Distinct
Population
Segment
and
to
list
it
as
“endangered”
under
the
EndangeredSpeciesAct.
Petitioner
requests
that
critical
habitat
be
designated
for
the
Puerto
Rico
population
of
Antillean manatee in occupied and unoccupied suitable habitat concurrent with final ESA
listing. Designating critical habitat for this DPS will support its recovery and protect areas
crucialtoitslong-termsurvival.
Respectfullysubmitted,
JulioC.Colón,Esq.
Petitioner
27
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34
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