Florida Bar Journal

Hanging on for Deer Life: How Chronic Wasting Disease Might Impact Florida and How Florida Law is Trying to Prevent its Spread into the State

Chronic Wasting Disease (CWD) is an infectious, degenerative disease that affects the Cervidae or cervid family, which includes elk, deer, moose, and other similar animals.^[1] CWD belongs to the group of diseases known as transmissible spongiform encephalopathies (TSEs).^[2] Other TSEs include bovine spongiform encephalopathy (BSE, commonly known as mad cow disease), which is found in bovine, and Cretuzfeldt-Jakob disease (CJD) found in humans.^[3] Although CWD has not been detected in Florida,^[4] many are concerned about the potential negative effects of a CWD outbreak in Florida. In an effort to prevent the introduction and spread of CWD in Florida, the Florida Fish and Wildlife Conservation Commission (FWC) has implemented a new CWD prevention regulation.^[5] This article addresses CWD, the Florida deer market, and the Florida CWD regulations.

About CWD

CWD was first discovered in captive deer at a Colorado research facility in the 1960s and was first detected in wild deer populations in 1981.^[6] As of January 2020, 24 U.S. states have reported CWD in their free-range deer, elk, or moose herds.^[7] In both free-range and captive herds, the number of states with CWD has grown to 26.^[8] Similar to other TSEs, CWD is not spread via a virus or bacteria, but rather by misfolded proteins called prions.^[9] Prion proteins cause healthy proteins to misfold, which damages the central nervous system of the infected animal.^[10] As more healthy proteins convert to the misfolded form, neurons die, leading to body dysfunction and ultimately death.^[11] Infected animals shed the misfolded prions in their feces, urine, and saliva, resulting in the exposure of other cervids to infection.^[12] It is unclear whether humans can contract CWD.^[13] According to the Centers for Disease Control and Prevention (CDC), while “there is no strong evidence for the occurrence of CWD in people, and it is not known if people can get infected with CWD prions,…experimental studies raise the concern that CWD may pose a risk to people and suggest that it is important to prevent human exposures to CWD.”^[14] Although there is little, if any, evidence that CWD poses a risk to human health or is infective to humans (unlike BSE), the CDC recommends not eating CWD-infected animals.^[15] In other words, the CDC is taking a precautionary approach.

Deer in Florida

Most of Florida’s deer population comprises three native sub-species of white-tailed deer: Florida coastal white-tailed deer (Odocoileus virginianus), Florida white-tailed deer (Odocoileus virginianus seminolus), and Florida Key deer (Odocoileus virginiaus clavium). Unlike the other white-tailed deer in Florida, which are managed by the FWC, the endangered Key deer, found only in the lower Florida Keys, are managed by the U.S. Fish and Wildlife Service, and are exempt from hunting in the state.^[16] Another deer species in Florida is the non-native sambar deer (Rusa unicolor or Cervus unicolor), found on St. Vincent Island in Franklin County (introduced in 1908) and managed by the FWC.^[17] As all deer species belong to the cervid family, all are susceptible to CWD.

Reports of large native Florida white-tailed deer populations date back to the late 1600s.^[18] Due to unregulated hide trade in the 1700s and rural/urban development in the 1800s and early 1900s, Florida’s native white-tailed deer population plummeted,^[19] reaching its lowest numbers in the 1930s.^[20] In 1941, the Florida Legislature voted to participate in the Federal-Aid-to-Wildlife program, which helped guarantee funds for wildlife management and established the Game and Fresh Water Fish Commission, the predecessor to the FWC.^[21] Within its first decade, the commission purchased 2.5 million acres in an effort to restore white-tailed deer habitat.^[22] By the 1960s, the commission’s efforts were noticeable as deer numbers increased tenfold, with over 40,000 animals harvested annually.^[23] In 1985, the Florida deer population hit 100,000, and in 2020, there was an estimated stable population of 700,000.^[24] Today, FWC holds 5.8 million acres in wildlife management areas, which serve as state-managed habitat for deer and other Florida wildlife species.^[25] Apart from the wildlife management area lands, early successional, forested, and agricultural lands also serve an important habitat for Florida deer.

In order to ensure a stable deer population, FWC regulates programs and policies to promote responsible deer management. As a keystone species, white-tailed deer are one of only a few wildlife species that will degrade their own habitat and the habitat of other species if not managed properly.^[26] Overbrowsing by deer populations can cause damage to the environment, agricultural crops, and household gardens.^[27] Additionally, the overabundance of deer and unnatural deer densities increases disease risk.^[28] As such, the FWC walks a fine line between regulating deer habitat management and deer population management.^[29]

The Deer Economy and CWD’s Potential Economic Impacts

The deer economy in the U.S. is a robust market centered on hunting and commercially raising live deer. Income generated through hunting often includes expenditures such as license sales, lodging, travel, and the purchase of sporting equipment. According to the U.S. Fish and Wildlife Service and the U.S. Census Bureau’s 2016 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation, there were 9.2 million hunters who pursued big game, such as deer and elk, in the U.S. that year.^[30] Their lodging, travel, and sporting equipment expenditures generated a total of $14.9 billion in 2016, or $1,619.57 per person.^[31] Additional income is generated through the purchase of hunting permits. The cost of a Florida hunting permit through the FWC ranges from $17 to $151, depending on permit type (annual/lifetime) and whether the permit holder is a Florida resident.^[32]

Another component of the deer economy is commercial deer farming. Income sources for deer farms include the sale of live animals, venison, velvet, antlers, urine, and semen.^[33] According to the 2017 Census of Agriculture, sales for Florida deer farms totaled $1,087,000 in 2012.^[34]

Because of the deer economy, CWD poses a threat to the wellbeing of wild and captive animals as well as the potential economic impact from loss of hunting revenue and commercial deer farms. For example, a study on the economic effects of CWD in Wisconsin found that the losses due to CWD, in the first year since the disease was detected in that state, was estimated between $58 million and $83 million.^[35] In the second year, losses were estimated between $30 million and $53 million.^[36] In yet another study, the potential economic impacts of CWD in Tennessee were estimated to be a $46.3 million decline in direct industry output and a $98 million decline in total economic losses.^[37] If CWD were introduced into Florida, estimated economic losses to Florida could be expected to mirror losses similar to those occurring in other states.

Florida CWD Regulations

The two primary regulatory agencies working to prevent the spread of CWD into Florida are the FWC and the Florida Department of Agriculture and Consumer Services (FDACS). Both regulate the importation of deer into the state and the commercial farming of cervids in Florida.

FWC Regulations

FWC’s CWD regulations mainly deal with importation. FWC regulates both the importation of carcasses and live cervids.

• F.A.C.R. 68A-4.0051 (2020) Bans the Importation of Live Cervids with a Few Exceptions — F.A.C. Rule 68A-4.0051 (2020) was adopted in 2002, and later amended in 2003 and 2013. As the rule currently reads, there is a ban on importing live deer, elk, moose, caribou, and other members of the deer family into Florida unless one is permitted to do so.^[38] The purpose of this ban is “to prevent the introduction of…(CWD) into the captive and wild deer of this state.” The rule lays out two exceptions. First, Florida zoos that are accredited by the Association of Zoos and Aquariums (AZA) may receive cervids (except for white-tailed deer) from out-of-state AZA accredited facilities. Second, any person in Florida can temporarily receive reindeer, but the reindeer may not remain in Florida for longer than 90 days, and the reindeer must not have spent any time in a county, or a county adjoining a county, where CWD has been documented. When in Florida, reindeer are not allowed in facilities with other cervid species.

• The Ban on the Importation of Carcasses Is Evolving — In addition to restricting the importation of live cervids into Florida, FWC also regulates the importation of cervid carcasses. FWC first adopted a regulation banning the importation of cervid carcasses on July 1, 2005, in F.A.C. Rule 68A-4.0053. Since 2005, the FWC has amended this rule. In November 2019, FWC issued an executive order that further restricted the importation of cervid carcasses. Most recently, the FWC added an amendment, which went into effect on July 1, 2021.

Before the 2021 amendment, F.A.C. Rule 68A-4.0053 (2020) prohibited the importation of cervids “from any state or province where [CWD] has been documented on a list maintained by the United States Department of Agriculture, Animal and Plant Health Inspection Service.” Not included in this importation ban was boned-out meat or processed meat cuts; clean hides with no tissue or head attached; antlers with a clean skull plate, finished taxidermy products, and upper canines regardless if those products originated from a state with known CWD cases. If, however, a cervid carcass tested positive in Florida, whoever was in charge of the carcass was required to surrender it to FWC.

With an increasing threat of CWD infecting Florida’s herds, FWC implemented even stricter importation regulations. Signed on October 23, 2019, and effective November 1, 2019, Executive Order 19-41 built on language used in the original Rule 68A-4.0053. Instead of prohibiting importation of carcasses from areas with known CWD cases, the executive order banned importation from any place outside of Florida. The executive order also allowed for similar exceptions as the original Rule 68A-4.0053, but enhanced the language by specifying that hides, skull plates, skulls, and teeth must have no tissue attached.

Despite its broad ban on imports of carcasses from anywhere outside of Florida, the executive order allowed for the importation of carcasses from Georgia and Alabama in two cases. First, the executive order allows a person to import or possess carcasses or carcass parts originating and legally harvested from properties in Georgia or Alabama if such property where it was harvested is bisected by the Florida state line and under the same ownership. Second, the executive order carves out an exception for white-tailed deer carcasses “originating and legally harvested from the states of Georgia or Alabama” if the hunter obtains an FWC Georgia/Alabama Carcass Importation Permit; reports the importation to FWC online via the Georgia/Alabama Carcass Importation Reporting Form within 24 hours of importation; and all carcass parts not retained for consumption are 1) double bagged and disposed of in a waste receptacle for collection by a waste disposal provider; 2) taken directly to a Class I landfill; or 3) disposed of by commercial incineration. If, however, CWD is detected in either Georgia or Alabama, then these exceptions will no longer apply, and FWC will no longer allow the importation of cervids from that state. All CWD-contaminated carcasses must be surrendered to FWC.

FWC has the authority to issue executive orders under the Florida Constitution, but FWC nevertheless amended the Florida Administrative Code to reflect the regulations promulgated in the executive order. FWC states that the new rule, which went into effect on July 1, replaces Executive Order 19-41. The new rule effectively codifies the executive order; however, it will not include the exception for carcasses originating and legally harvested in Georgia and Alabama.^[39]

FDACS Regulations

Many of FDACS’s CWD regulations restate and cross-reference FWC’s regulations. Many of FDACS’s regulations, though, include additional requirements.

• F.A.C.R. 5C-3.011 (2019), Cervids (Farmed or Captive) — Originally adopted in 1994, this rule has gone through many rounds of amendments. Most recently amended in 2019, this rule now mirrors and cross-references F.A.C. Rule 68A-4.0051 (2020). Beyond banning the importation of live cervids into Florida with a few exceptions (importations of non-white-tailed deer cervids to zoos, and temporary reindeer stays), F.A.C. Rule 5C-3.011 (2020) adds to its FWC counterpart. For the live cervids that fall within the exceptions outlined in both rules, Rule 5C-3.011 states that all must originate from herds that perform CWD surveillance; originate from herds not located in a county, or a county adjoining a county, where CWD has been documented; and the animal health officials in the originating state must confirm the surveillance and the location of any positive CWD cases in the originating state.

Rule 5C-3.011 also requires that all cervids imported into Florida must be accompanied by an official certificate of veterinary inspection (OCVI) completed by the issuing accredited veterinarian. The rule lists 14 items that the OCVI must include, items such as the cervid’s point of origin, point of destination, and the date of examination. The rule also makes clear that OCVIs are void 30 days after issuance.

Rule 5C-3.011 additionally outlines a few other requirements. Per the rule, all cervids imported into Florida must have a prior permission number, which serves as an identification number and is used on OCVIs. The rule outlines different testing requirements for imported cervids — it is here that the rule admits that there is not currently a test developed for detecting CWD in live cervids. All current CWD testing is done postmortem. Finally, Rule 5C-3.011 requires recipient herds to register and comply with FDACS’s Cervidae Herd Health Plan outlined in F.A.C. Rule 5C-26.006.

• Chapter 5C-26, Cervidae Movement — Chapter 5C-26 is the only chapter in Florida’s Administrative Code dedicated solely to cervids. This chapter was adopted in 2002 and has not since been amended. As such, there are other parts of the Florida Administrative Code discussed above that reflect more current versions of these regulations.

The first two parts of Ch. 5C-26 discuss certain key terms used in the chapter and their definitions, and establishes that Florida adopts Title 9, §54.7, Code of Federal Regulations (2002), which outlines the procedures for destructing diseased animals. F.A.C. Rule 5C-26.003 (2020) outlines additional requirements for cervids that can be imported into Florida. According to this rule, imported cervids must originate from herds that participate in surveillance/prevention programs established by the USDA or the animal’s originating state’s veterinarian, chief animal health officer, or equivalent. Before a cervid is imported into Florida, the cervid’s originating herd must be CWD-free for 60 months (five years). This section also reiterates the OCVI requirement laid out in F.A.C. Rule 5C-3.011 (2020), but lists three less requirements. The requirements under F.A.C. Rule 5C-3.011 (2020) supersede those laid out in Rule 5C-26.003. Note that Rule 5C-26.003 includes an exception to the OCVI requirement. It states that “cervidae consigned directly to a recognized slaughtering establishment” are not required to have an OCVI. Considering that other regulations limit cervids that can be imported into Florida to non-white-tailed deer going to AZA accredited zoos, and to reindeer, this exception likely is no longer applicable.

Rule 5C-26.004 addresses the movement of cervids within Florida. This rule states that animals being transported wholly within Florida must be accompanied by documents that disclose the name, physical address, and phone number of the consignor; the name, physical address, and phone number of the consignee; the point of origin; the animal’s destination; and an FDACS-approved identification number for each animal. Rule 5C-26.004 also requires that the state veterinarian approves the transport of each animal and that this approval is with the animal during transport. Additionally, this rule requires that both the consignee and consigner possess the appropriate permits for possessing wildlife, and that both of their herds are registered and comply with the FDACS Cervidae Herd Health Plan.

Rule 5C-26.005 includes the same language included in Rule 5C-3.011 in regard to cervid testing requirements and exceptions. Rule 5C-26.005 reiterates that there currently is no test to detect CWD in live animals. This rule, like Rule 5C-3.011, lays out the requirements for tuberculosis and brucellosis tests. Currently, studies are underway to evaluate the effectiveness of antemortem tonsil biopsies to detect CWD.^[40]

Rule 5C-26.006 discusses the FDACS Cervidae Herd Health Plan. This rule requires each Florida herd owner to create a written herd health plan, which is an agreement between the herd owner and FDACS. Herd health plans are based on epidemiological investigations and risk assessments of the herd and any facilities the herd owner utilizes for herd management. Herd health plans should lay out “specific actions to be followed to monitor or survey the herd for specific disease(s) or eradicate specific disease(s) from the herd.”

Rule 5C-26.007 is a proactive rule, which lays out a quarantine procedure if CWD is ever detected in Florida. This rule requires all herds diagnosed positive, exposed to, or suspected to have CWD to quarantine and cull animals suspected to have CWD. Whether the herd is deemed CWD positive, exposed, or suspect determines what quarantine and disposal procedures the herd must have in place.

Rule 5C-26.008 allows those cervids FDACS has deemed low-risk for CWD to receive a waiver to the cervid movement requirements laid out in Ch. 5C-26. Rule 5C-26.009 declares CWD as a dangerous, transmissible animal disease and states that CWD constitutes a public nuisance.

Conclusion

While there are no reports of CWD in Florida, if it were detected in the state, CWD could have potentially devastating impacts on Florida’s white-tailed deer population and the deer economy. Fortunately, there are regulations in place to prevent and limit the spread of CWD in Florida. Two state agencies, FWC and FDACS, regulate the importation of live cervids and cervid carcasses. FDACS also regulates the intrastate movement of live cervids.

This article is submitted on behalf of the Solo and Small Firm Section, Jacina J. Parson, chair, and Michelle Garcia Gilbert, editor.