A comprehensive solution to the biofouling problem for the endangered Florida manatee and other species.

• Author: Oppenheimer, Kathleen D.

1. INTRODUCTION II. CAUSES, CONDITIONS, AND GLOBAL CONSEQUENCES OF BIOFOULING III. BIOFOULING IMPACTS ON THE FLORIDA MANATEE A. Effects of Nonindigenous Aquatic Species IV. EXISTING INTERNATIONAL LEGAL MECHANISMS A. International Mechanisms Governing Shipping 1. The AFS Convention 2. The Ballast Water Convention B. International Mechanism Governing Nonindigenous Aquatic Species C. Inadequacy of Existing Mechanisms V. THE FLORIDA MANATEE AND THE ENDANGERED SPECIES ACT VI. STRATEGIES: MITIGATION TECHNIQUES AND IMPLEMENTATION A. Proposed Source Population Control Mitigation Techniques 1. Marina and Harbor Design and the Use of Antifouling Materials 2. Urban Planning and Site Selection for New Marinas 3. Vessel Design 4. Border Control Measures and Inspection 5. Marina Management Guidelines and Education B. Proposed Direct Vector Mitigation Techniques--Standards for Biofouling Removal C. Implementing Recommended Mitigation Techniques VII. ANALOGOUS IMPLEMENTATION AND MITIGATION TECHNIQUES UNDER SECTION 10 OF THE ENDANGERED SPECIES ACT VIII. CONCLUSIONS I. INTRODUCTION

   The purpose of the federal Endangered Species Act of 1973 (ESA) (1) is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes" of a number of international conservation treaties and conventions. (2) This language highlights the interconnection between ecosystems and species; in order to conserve a listed species, we must protect the critical bionetwork on which it depends. (3) Therefore, the ESA incidentally protects endangered ecosystems through its focus on listed species that, if destroyed, will result in a disastrous loss of biodiversity. (4) In essence, listed species have become indicators for the health of entire endangered ecosystems. (5) For instance, given the purposes of the ESA, endangered species like the Florida manatee (Trichechus manatus latirostris) (6) are a barometer for the degrading health of estuary, freshwater, and saltwater ecosystems. (7)

   Specifically, this Article contends that the Florida manatee and other bellwether aquatic species have become "canaries in a coal mine," (8) providing early warning of the dangers biofouling has imposed, and will continue to impose without further intervention, on these ecosystems. Due to the complexity of biofouling, we argue that existing mechanisms are inadequate for comprehensively regulating the problem, thereby leaving Florida manatees and other species susceptible to numerous negative effects from biofouling. A significant gap remains between the existing mechanisms in the management of biofouling associated with barges and associated support vessels, fishing vessels, and recreational craft. In addition, the existing mechanisms fail to 1) recognize the optimal factors for biofouling development and adhesion, 2) make recommendations to manage biofouling through design standards for marinas and harbors, 3) provide standards for biofouling removal, or 4) detail measures to treat high-risk vessels.

   To address these inadequacies, we argue in this Article that biofouling should also be mitigated under the ESA, a statute which requires the government to protect listed endangered and threatened plant and animal species, as well as the habitats upon which they depend as necessary to prevent the taking of or harm to listed species. (9) First, considering the Florida manatee as a case study species, we suggest that Florida's Resource Conservation and Development (RC&D) areas (10) develop a Safe Harbor umbrella agreement under section 10 of the ESA to create a new generation of ecological harbors that are actually safe from the dangers of biofouling. (11) The agreement would include a Habitat Conservation Plan (HCP) (12) that incorporates a combination of behavioral and infrastructural biofouling mitigation techniques to be applied regionally across estuary, freshwater, and saltwater ecosystems.

   Second, we suggest that both public and private owners--for example, state governments, municipalities, and private marina developers--of existing, proposed, and expanding marina developments be encouraged to voluntarily sign Safe Harbor Agreements (SHAs) (13) under the RC&D areas' umbrella agreement to avoid owners having to navigate the long and strenuous process of obtaining individual HCPs. (14) This strategy would require RC&D areas to carry out a range of biofouling best management practices that would protect Florida manatees and their habitat from the adverse effects of biofouling. It would also encourage public and private landowners to follow suit, while maintaining efficiency and rewarding participating landowners for voluntarily implementing additional Florida manatee conservation practices. (15)

   This Article is organized in the following manner. First, Part II addresses the causes, conditions, and global consequences of biofouling. Part III then examines the local direct and tangential implications of biofouling on Florida manatees as a case study species, specifically how fouling organisms, pollutants from antifouling coatings, and nonindigenous aquatic species (NIAS) can affect Florida manatee health and habitat. Next, Part IV presents the international legal mechanisms (16) that currently aim to address the biofouling problem and explains why they are inadequate. Part V explains the obligations to protect Florida manatees and their habitat under the ESA. Part VI goes on to detail how Florida's RC&D areas, as well as public and private marina owners, can and should mitigate the effects of biofouling on Florida manatee health and habitat through improving marina design, marina site selection and marina infrastructure, as well as incorporating the use of vessel management techniques and educational and outreach programs under section 10 of the ESA. The strategy recommended here can also serve as a model for other states to better protect their own ecosystems, along with endangered mollusk and marine mammal populations, from the negative effects of biofouling.

   Part VII discusses mitigation techniques and implementation strategies that have been executed or proposed under section 10 of the ESA that are analogous to those proposed in this Article. Specifically, this Part discusses HCPs and SHAs that are proposed or enacted that likewise combine public-private efforts; employ behavioral and infrastructural mitigation techniques; are implemented regionally; or protect estuary, freshwater, and saltwater ecosystems. Finally, the Article concludes by discussing the substantial need, given the gaps in existing international regulations, for marina owners to implement a combination of behavioral and infrastructural changes under section 10 of the ESA. We argue that these changes will effectively address the impacts of biofouling on Florida manatees, as well as other endangered species, and the ecosystems on which they depend.

2. CAUSES, CONDITIONS, AND GLOBAL CONSEQUENCES OF BIOFOULING

   Biofouling is the undesirable accumulation of microorganisms, plants, algae, arthropods, or mollusks to a surface, like a ship's hull, when it is in contact with water for a period of timer Organisms do not stick directly to a substrate; (18) biofouling must begin with the production of biofilm to which the biofouling organisms then adhere. (19) Biofilm can consist of bacteria, such as Thiobacilli; diatoms; (20) seaweed; or phytoplankton productivity. (21) Biofilm formation depends on favorable conditions for growth and attachment, which may vary regionally. (22) Both biofilm growth and attachment are greatly impacted by relative productivity, (23) biofilm organism concentration, water temperature, pH, and water velocity past the substrate. (24)

   Biofilm and the subsequent adhesion of biofouling organisms most commonly occur on ship hulls and propellers, (25) negatively impacting ship maneuverability and lifespan with dramatic economic and environmental consequences. First, if biofouling is left untreated on a substrate like a hull or propeller, it will eventually corrode. (26) For this reason, the unrestricted accumulation of fouling organisms can cause a significant fiscal loss due to the mounting costs of replacing damaged parts. (27) Second, any accumulation of fouling organisms creates a rough surface area that significantly increases drag and deteriorates maneuverability. (28) This resulting drag from biofouling is noteworthy as it can reduce vessel speed by up to 10%, which can require up to a 40% increase in fuel consumption. (29)

   In the international context of commercial shipping, for example, fleets around the world have been estimated to consume approximately 300 million additional tons of fuel annually due to biofouling. (30) Even at a more conservative estimate of 120 million additional tons of fuel annually, (31) costs were estimated at $7.5 billion in 2000, (32) and, more recently, $30 billion. (33) Even just in the United States, colonized barnacles and biofilm settled on the hulls of Navy ships translates into roughly $500 million annually in extra fuel and maintenance costs. (34) The increased consumption of fuel not only is costly and wasteful, but also increases greenhouse gas emissions. (35) If the world's fleet was totally fouled, an extra 70.6 million tons of fuel would be burned per year, releasing more than 210 million additional tons of carbon dioxide and more than 5.6 million additional tons of sulfur dioxide. (36)

   Antifouling paint products are the most widely accepted method of controlling and preventing biofouling. (37) Many antifouling paint products are tin. (38) or copper-based, which are toxic not only to biofouling organisms but also to other nontarget organisms. (39) The chemicals slowly leach into the water, where they can affect living...