A Comprehensive Solution to the Biofouling Problem for the Endangered Florida Manatee and Other Species

53 Pages Posted: 30 Jun 2012

See all articles by Kathleen Berkey, Esq., AICP

Kathleen Berkey, Esq., AICP

Pavese Law Firm

Todd BenDor

University of North Carolina (UNC) at Chapel Hill

Date Written: 2012


Biofouling is the undesirable accumulation of microorganisms, plants, algae, arthropods, or mollusks on a surface, such as a ship’s hull, when it is in contact with water for a period of time. Biofouling and its traditional remedies pose serious environmental consequences, including 1) the transportation of nonindigenous aquatic species that can outcompete native species for space and resources, thereby reducing biodiversity and threatening the viability of fisheries or aquaculture, 2) the harmful accumulation of zinc- or copper-based toxins, and 3) the increase in weight, decrease in flexibility and mobility, and topical damage of marine mammals hosting biofouling organisms. There are a number of existing legal mechanisms that address biofouling under international law. However, due to the complexity of biofouling, this Article posits that existing mechanisms are inadequate for comprehensively regulating the problem, leaving aquatic species susceptible to numerous negative effects from biofouling. To address these inadequacies, we recommend biofouling also be mitigated under the federal Endangered Species Act (ESA). First, we consider the Florida manatee (Trichechus manatus latirostris) as a case study species, and suggest that Florida’s Resource Conservation and Development (RC&D) areas develop a Safe Harbor umbrella agreement under section 10 of the ESA to create a new generation of ecological harbors that are safe from the dangers of biofouling. The agreement would include a Habitat Conservation Plan (HCP) 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 of existing, proposed, and expanding marina developments be encouraged to voluntarily sign Safe Harbor Agreements under the RC&D areas’ umbrella agreement to avoid owners having to navigate the long and strenuous process of obtaining individual HCPs. The comprehensive biofouling management strategy proposed as a model here would require RC&D areas to carry out a range of biofouling best management practices that would protect species and the habitats on which they depend from the adverse effects of biofouling.

Keywords: biofouling, marina, planning, environmental law, international law

Suggested Citation

Berkey, Kathleen and BenDor, Todd, A Comprehensive Solution to the Biofouling Problem for the Endangered Florida Manatee and Other Species (2012). Environmental Law, Vol. 42, No. 2, 2012, Available at SSRN: https://ssrn.com/abstract=2096213

Kathleen Berkey (Contact Author)

Pavese Law Firm

PO Drawer 1507
1833 Hendry Street
Fort Myers, FL 33902-1507
United States

Todd BenDor

University of North Carolina (UNC) at Chapel Hill ( email )

CB #3140
Chapel Hill, NC NC 27599
United States
919-962-4760 (Phone)

HOME PAGE: http://todd.bendor.org/

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