The Florida Bar

Florida Bar Journal

The Fading Color of Coral: Anthropogenic Threats to Our Native Reefs

Animal Law
The Fading Color of Coral: Anthropogenic Threats to Our Native Reefs

The authors of this article are native Floridians who grew up in South Florida and have witnessed personally the splendor and decline of Florida’s living coral reefs over the years. At one time, the Florida Keys Reef Tract was bursting with color and teeming with marine life. As a result of human activities over the decades, this has changed dramatically. The fading of coral and the decline of fish populations is palpable. Even without an understanding of the legal and scientific causes of this decline, which this article addresses, there is a sense of dread among those who have even casually observed up close the adverse impacts of man-made threats to Florida’s coral reefs. For example, instead of reliving a boat trip to observe a coral reef bursting with color and teeming with marine life, as was experienced a few years ago, a recent trip to the Florida Keys revealed only bits and pieces of colorless brain coral, a handful of spiny lobsters, and a few fish that still remain hopeful for abundant life to return to their marine home. This phenomenon is not unique to Florida. The authors also have traveled to other countries throughout the Caribbean and the world and have witnessed the same unfortunate effects on formerly colorful and lively coral reefs.

On a more fundamental level, Florida boat captains now urge passengers to protect their livelihoods by using mineral instead of dangerous chemical sunscreens. Well-meaning state lawmakers pass laws designed to study and protect coral reefs that are later vetoed. Local officials struggle to establish their priorities and find the financial resources to act on protecting this essential natural resource. As demonstrated in this article, the micromovements of such sustainable choices are imperative to keeping the corals alive.

Notwithstanding these efforts, the health and condition of coral reefs continues to worsen in Florida and throughout the waters of the world. However, those who appreciate the beauty, the biological diversity, and the vital functioning of coral reefs in the marine ecosystem, have succeeded in recent years in drawing attention to this ecological crisis and have passed laws and established programs to attempt to reverse the damage. This article explores the legal and scientific issues associated with the decline of coral reefs in Florida and globally, and the measures that have been and need further to be taken to rescue them.

Background

Florida is the only state in the continental United States with extensive shallow coral reef formations near its coasts. The Florida Keys Reef Tract is the third longest in the world.[1] Corals are living, breathing, sessile animals that are currently facing mass extinction.[2] Human activity endangers biodiversity in the Florida Keys Reef Tract in at least four main ways: overfishing, pollution, sedimentation, and climate change.[3] This article sets forth each threat and outlines legal protections already in place for coral reefs and discusses what additional practical protections should be implemented.

Applicable Laws

The State of Florida regulates the Florida Keys and surrounding waters including the coral reefs through statute and administrative rules of the Florida Department of Environmental Protection (FDEP). The Florida Keys are an “Outstanding Florida Water” (OFW).[4] The FDEP OFW rule states “[t]hat the level of protection afforded by the designation as Outstanding National Resource Waters is clearly necessary to preserve the exceptional ecological or recreational significance of the waters.”[5] This OFW designation is the highest protection in Florida for waters, as further stated: “The waters are of such exceptional recreational or ecological significance that water quality should and can be maintained and protected under all circumstances other than temporary degradation and the lowering allowed by §316 of the Federal Clean Water Act (CWA)….”[6]

The State of Florida also designated the Florida Keys an “area of critical state concern.”[7] This also affords the Florida Keys the highest level of environmental protection. A key stated purpose of this designation is to protect and improve the Florida Keys nearshore water quality through construction and operation of wastewater facilities that meet the requirements of F.S. §403.086(10) (2019). Additionally, the State of Florida has enacted §403.086(10), which addresses the discharge of domestic wastewater in the Florida Keys. The statute addresses the discharge of inadequately treated and managed domestic wastewater from small wastewater facilities and septic tanks and other onsite systems in the Florida Keys, recognizes that this discharge compromises the coastal environment, and provides that it must be regulated.

Additionally, statutory protection is in place to regulate boating incidents that contribute to the degradation of Florida’s coral reefs. The Florida Coral Reef Protection Act declares that “it is in the best interest of the state to clarify the department’s powers and authority to protect coral reefs through timely and efficient recovery of monetary damages resulting from vessel groundings and anchoring-related injuries.”[8] The statute was originally enacted in 2009 to make it illegal to anchor on or otherwise damage coral reefs in Florida. Remarkably, 500 ship groundings a year occur in the Florida Keys National Marine Sanctuary, which causes damage to the reefs.[9]

There also are several federal laws that purport to provide protection for Florida’s coral reefs. The Endangered Species Act of 1973 (ESA) includes some limited protection for a few Florida coral species.[10] Of the 45 species of stony coral species found along the Florida Keys Reef Tract, two are currently listed as “threatened” under the ESA: staghorn coral and elkhorn coral. This listing means that the National Oceanic and Atmospheric Administration’s (NOAA) National Marine Fisheries Service must issue critical habitat protection.[11] Several more species are currently the subject of petitions requesting a listing by NOAA. Endangered and threatened species that have critical habitat protection are twice as likely to be recovering as those without it.[12] The State of Florida also has listed five additional coral species as threatened and protects all stony corals within state waters.[13]

The CWA also sets out, in part, to prohibit the “discharge of toxic pollutants in toxic amounts.”[14] Section 404 of the CWA regulates “the effect of disposal of pollutants on human health or welfare, including…shorelines, and beaches….”[15] Section 404 guidelines establish the environmental standards to be used by the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) in the review of permit applications “to discharge dredged or fill material in the nation’s waters, including marine waters that are home to coral reefs.”[16] Because of the limited reach of the CWA, waste and other harmful pollutants “are only minimally regulated near coastal waters of the United States and can be discharged untreated offshore.”[17] Environmental advocates have pointed out that these pollutants “contaminate our coastal waters resulting…[in] risk to public health for people swimming in our oceans and damage to coral reefs….”[18]

One additional federal protection is the Marine Protection, Research, and Sanctuaries Act (MPRSA). Also known as the Ocean Dumping Act, the MPRSA prohibits “the dumping of material into the ocean that would unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities.”[19] Section 102 of MPRSA requires the EPA, in consultation with the Corps, to develop environmental criteria that must be met before any proposed ocean disposal activity is allowed to proceed to avoid adverse impacts on coral reefs.[20]

While the above federal laws are vital to the protection of Florida’s coral reefs, the primary responsibility falls upon the State of Florida, and to a certain extent local governments, to ensure that these vital natural resources are protected from human activity and preserved for future generations. The specific impacts and how they are regulated will be discussed more fully below.

Agricultural and Human Waste

There are long-recognized, scientifically established adverse impacts to coral reefs. Chief among them are agricultural and human waste. The EPA has identified sedimentation from coastal development, urban stormwater runoff, forestry, and agriculture as a primary stressor for the existence and recovery of coral species and their habitats.[21] Sediment deposited onto reefs “can smother corals and interfere with their ability to feed, grow, and reproduce.”[22] Furthermore, “[p]esticides can affect coral reproduction, growth, and other physiological processes. Agricultural runoff from Florida’s mainland, and sewage dumping from 22,000 septic tanks, 5,000 cesspools, and 139 marinas all contribute to pollution in the Keys sanctuary.”[23] Agricultural fertilizer and herbicides applied to fields far from the reefs are creating total “dead zones” in the oceans and harming life on the reefs, which require clean, nutrient-free waters to thrive.[24] Rain causes agricultural fertilizers containing nitrogen and phosphorous to run off into the ocean, making coral death more common.[25] Those increased nutrients in the water cause algae blooms, “which in turn seemed to predict mass coral deaths.”[26] A great deal of the effect of these added nutrients could be mitigated by improved water-treatment plants.[27]

Florida’s coral reef systems also are “extremely susceptible to sewage…resulting from poor land management.”[28] Sewage is “likely to kill coral in the vicinity of the outlet because of reduction in light caused by the sediment.”[29] In Florida, as mentioned above, F.S. §380.0552 ensures discharge of domestic wastewater in the Florida Keys is properly treated via a permitting system. Partially treated wastewater also remains a concern for Florida’s coral reef system. Moreover, at least one nonprofit group was unsuccessful in challenging wastewater facility treatment sites along the protected area of the coral reef system in the Keys for allegedly violating state water quality standards.[30]

On the local level, the Florida Keys implemented a Reasonable Assurance Plan (RAP) to set forth and accelerate the actions to reduce nutrient loadings to near shore waters throughout the Florida Keys so that the water quality standards are met and beneficial uses are restored.[31] The 2018 status report indicates that canal nutrient pollution levels are decreasing with the measures put in place, and FDEP will continue to monitor the RAP progress until water bodies are no longer listed as critically impaired.[32]

Sanctuary status, however, has not prevented the steep decline in the Florida coral reef system. The Keys sanctuary program would benefit from coordination with state and local efforts to eliminate these sources of pollution. Currently, only 1% of the total sanctuary area in Florida is designated as “no-take marine reserves.”[33] Those areas show signs of recovery, indicating that there should be more no-take designations.[34] No-take marine reserves are a specific type of Marine Protected Area (MPA). According to NOAA, “no-take MPAs totally prohibit the extraction or significant destruction of natural or cultural resources.”[35] These measures, and a commitment to continue funding the efforts of the sanctuary programs, are essential to preserving other U.S. coral reefs that have not yet borne the sustained assault that Florida reefs have experienced.

Sunscreen and Coral Bleaching

More recently, attention has been given to the adverse effects of popular sunscreens on coral reefs. Chemicals found in most sunscreens are toxic to coral reefs, adding to the stressors coral already faces for survival in the Florida Keys.[36] The Center for Biological Diversity, which found that in particular oxybenzone and octinoxate contribute to coral bleaching and death, petitioned the U.S. Food and Drug Administration (FDA) to prohibit the use of these two chemicals found in many personal health products, including sunscreen lotion.[37] Bleaching results when the coral expels the algae living in their tissues, causing the coral to turn white. Bleaching puts corals under extreme stress and often results in die-off of the coral reefs. High concentrations of oxybenzone can be found in many areas popular with tourists, including the Florida Keys. NOAA estimates that “90% of snorkeling/diving tourists are concentrated on 10% of the world’s reefs. This means that our most popular reefs, such as those in our national parks, are exposed to the majority of sunscreens.”[38] A measure prohibiting the use of these two chemicals passed in Hawaii and will go into effect in 2021.[39] The Hawaiian law explains that the chemicals “have also been shown to degrade corals’ resiliency and ability to adjust to climate change factors and inhibit recruitment of new corals.”[40]

On the local level in Florida, several communities attempted to ban the sale of sunscreen products that contain oxybenzone and octinoxate, because of their well-known adverse impacts on the health of corals. However, Florida’s governor recently signed S.B. 172 into law in June 2020, striking down and preempting to the state any local bans on the sale of these products.[41] Notwithstanding state law, NOAA and the National Park Service urge consumers to avoid these chemicals, and, as mentioned, bans are already in place in Hawaii and the U.S. Virgin Islands.[42]

Another interesting recent phenomenon affecting the health of marine life and coral reefs concerns the impact of the COVID-19 pandemic on coastal water quality. As a result of the shutdown of cruise ships, and the subsequent closing of captive dolphin operations, which passengers frequent when in port, environmentalists have observed an improvement in coastal water quality in some locations. For example, in Discovery Bay, Jamaica, residents reported an immediate improvement in water quality after dolphin removal from dolphin pens. Surrounding seagrass beds near the dolphin cages were found free of weedy algae that indicate high nutrient levels. The result was an observable improvement in seagrasses, coral reefs, and beaches. The closing of captive dolphin operations as a result of the shutdown of the cruise ship industry due to COVID-19 has resulted in an improvement in the coastal environment, including coral reefs.[43]

A further recent development concerns the Florida Aquarium’s Center for Conservation in Apollo Beach, which sought $1.5 million in 2020-21 state appropriations with a portion dedicated to enhance its coral laboratory. This, too, was vetoed by Florida’s governor in June 2020.[44] This conservation program, deemed “Project Coral,” represents an effort to help save corals in the Florida Keys Reef Tract from extinction.[45] The aquarium reported a “historic breakthrough” in 2019 — for the first time ever, an endangered species of Atlantic coral spawned through lab-induced techniques.[46] The aquarium said this breakthrough was a “world first” in coral reef restoration and research advancement.[47] The sought-after but rejected appropriation would have helped the aquarium continue to spawn and reproduce Florida and Caribbean coral, which are in dire need of saving.

Global Warming and Coral Bleaching

Much has been written and debated about the impacts of climate change and global warming on the earth’s oceans and marine life. While the majority of credible scientists and world leaders accept the science of climate change and global warming and recognize the adverse consequences to coral reefs and other marine life, the U.S. in recent years has failed to exercise leadership on this issue. This is true despite the indisputable evidence that coral reefs also suffer from global warming. As found by NOAA, “elevated sea water temperatures and increased CO2 concentrations due to greenhouse gas emissions” have been linked to coral bleaching.[48] Warmer sea temperatures alone will account for coral reefs “declining by a further 70-90[%]…causing massive bleaching episodes with high coral mortality rates.”[49] The U.S. Geological Survey (USGS) Coral Reef Ecosystems Studies (CREST) project dataset provides underwater temperature data recorded every 15 minutes from 2009 to 2019 at six off-shore coral reefs in the Florida Keys.[50] The data helps the USGS assess the dynamic, underwater temperature environment experienced by coral reef organisms.[51] The current average water temperature in the Florida Keys during August, which is consistently the month when Florida’s ocean temperatures peak, is currently 87-88 degrees Fahrenheit.[52] The average water temperature continues to remain around 86 degrees in September.[53] USGS analysis from a 2014 temperature study indicated that “[w]hen corals are exposed to water temperatures above 84 F they grow more slowly and, during extended exposure periods, can stop growing altogether or die.”[54] The USGS further explained that “mortality usually ensues if corals remain bleached longer than a month or two.”[55]

“Non-Human” Threats: Coral Disease

In addition to the threats posed by human activities discussed above, coral reefs face further challenges from other sources. For example, scientists are reporting more incidences of coral disease, particularly in the Caribbean. FDEP reported the Florida Keys Reef Tract has been experiencing an outbreak of a coral disease termed stony coral tissue loss disease (SCTLD), which can wipe off a coral colony in a matter of months.[56] SCTLD has affected more than 20 of approximately 45 species of Florida’s reef-building corals. This includes two species listed pursuant to the ESA.[57] Scientists are replanting coral in the Florida Keys, but are unsure if the ecosystem will be able to stand up to climate change, making global climate action critical for the survival of the Florida Keys Reef Tract.[58]

Life Without Coral Reefs

The above demonstrates the challenges in protecting and preserving our unique coral reefs in Florida and around the world. Floridians should be concerned about the loss of coral reefs and the increasing challenges they face. Healthy and resilient coral reefs safeguard against extreme weather, shoreline erosion, and coastal flooding. Coral reef extinction would also threaten Florida’s $1.1 billion coral reef tourism economy, which is highly tied to the coral reefs and dependent on their health.[59] Additionally, coral reefs are estimated to annually support 71,000 jobs in South Florida.[60]

Later in 2020, the report on the status of coral reefs of the world will be released by the Global Coral Reef Monitoring Network, the first global report in 12 years. The report will provide further information about the state of coral reefs and may spur government officials and individuals to do more to try to reverse the decline of coral reefs globally.

Conclusion

The world’s third-largest barrier reef along the Florida Keys is struggling and on the verge of collapse, with less than a 10th of the reef system now covered in living coral. While there is little that communities living near coral reefs can do to stop global warming, there is a lot they can do to reduce nitrogen runoff. Addressing smaller-scale issues, like agricultural and toxic pollution, is critical to protecting the dying coral reef systems in the Florida Keys. From properly disposing of household waste and chemicals to choosing sustainable sunscreens — tourists and Florida residents alike can help reduce local threats to reef health. Implementing proper waste treatments and agricultural pollutant reduction programs also can slow coral death rates, especially with proper funding and oversight. Time is running short to protect and preserve our shared vital resource of Florida’s unique coral reefs, but it is not too late, if the well-informed among the people of Florida and the Earth act immediately, responsibly, and forcibly.

[1] See Mary Gray Davidson, Protecting Coral Reefs: The Principal National and International Legal Instruments, 26 Harv. Envtl. L. Rev. 499, 504 (2002).

[2] Id. at 532.

[3] Id. at 505.

[4] See Fla. Stat. §403.061(27) (2018); see also F.A.C.R. 62-302.700(9).

[5] F.A.C.R. 62-302.700(6)(b).

[6] F.A.C.R. 62-302.700(6)(a).

[7] See Fla. Stat. §380.0552 (2016).

[8] Fla. Stat. §403.93345 (2015).

[9] See Mark Spalding, et al., World Atlas of Coral Reefs 97-98 (2001).

[10] See 16 U.S.C §1531.

[11] Id.

[12] See Martin F. J. Taylor, Kieran F. Suckling & Jeffrey J. Rachlinski, The Effectiveness of the Endangered Species Act: A Quantitative Analysis, BioScience (Apr. 5, 2005), available at https://www.biologicaldiversity.org/publications/papers/bioscience2005.pdf.

[13] See U.S. Fish and Wildlife Service, Environmental Conservation Online System, Species Search Results, https://ecos.fws.gov/ecp0/pub/SpeciesReport.do.

[14] 33 U.S.C. §1251(a)(1)-(3) (1972).

[15] 33 U.S.C. §1251(c)(1)(A).

[16] 33 U.S.C. §1251(b)(1).

[17] See Constantine G. Papavizas & Lawrence I. Kiern, 2013-2014 U.S. Maritime Legislative Developments, 46 J. Mar. L. & Com. 261, 266-67 (2015).

[18] Id.

[19] 33 U.S.C. §1401.

[20] Id.

[21] See U.S. EPA, Threats to Coral Reefs (May 4, 2018), https://www.epa.gov/coral-reefs/threats-coral-reefs.

[22] Id.

[23] See Spalding, et al., World Atlas of Coral Reefs at 97-98.

[24] See Colin Woodard, Ocean’s End 104-06 (2000); see also Reef Relief, What is the Biggest Threat to the Health of Florida’s Coral Reef?, http:// www.reefrelief.org/coral_reef_florida.html.

[25] See David A. Ring, Sustainability Dynamics: Land-Based Marine Pollution and Development Priorities in the Island States of the Commonwealth Caribbean, 22 Colum. J. Envtl. L. 65, 73 (1997).

[26] Id.

[27] Id.

[28] See Peter C. Underwood, The Marine Environment and Ocean Development in the Eastern Caribbean, A New Law of the Sea for the Caribbean: An Examination of Marine Law and Policy Issues in the Lesser Antilles 126 (1988) (lecture notes on Coastal and Estuarine Studies no. 27).

[29] See David L. McKee & Clem Tisdell, Developmental Issues in Small Island Economies 134 (1990).

[30] See Last Stand (Protect Key West and The Florida Keys, D/B/A Last Stand), and George Halloran, Petitioners v. Kw Resort Utilities Corp. and State of Florida Department of Environmental Protection, Respondents (2016).

[31] Florida Department of Environmental Protection Division of Environmental Assessment and Restoration Water Quality Assessment Program, 2018 Update to the Florida Keys Reasonable Assurance Document (June 2018).

[32] Id.

[33] See Spalding, et al., World Atlas of Coral Reefs at 97-98.

[34] Id.

[35] See National Ocean Service, What Is a Marine Protected Area? (June 25, 2018), https://oceanservice.noaa.gov/facts/mpa.html.

[36] See Clyde McGrady, CBD Urges FDA to Ban Two Chemicals Found in Sunscreen to Protect Coral, Washington Energy Briefing (2018).

[37] See id.

[38] See NOAA, Coral Disease and Health Consortium, National Park Service U.S. Dept. of the Interior, Protect Yourself, Protect the Reef, available at https://cdhc.noaa.gov/_docs/Site%20Bulletin_Sunscreen_final.pdf.

[39] See S.B. 2571, 29th Leg. (Haw. 2020).

[40] See id.

[41] See S.B. 172, 2020 Leg., Reg. Sess. (Fla. 2020); see also C.A. Downs, E. Kramarsky-Winter, R. Segal, et al., Toxicopathological Effects of the Sunscreen UV Filter, Oxybenzone (Benzophenone-3), on Coral Planulae and Cultured Primary Cells and Its Environmental Contamination in Hawaii and the U.S. Virgin Islands, Arch. Environ. Contam. Toxicol. 70, 265-288 (2016).

[42] See National Ocean Service, Skincare Chemicals and Coral Reefs, https://oceanservice.noaa.gov/news/sunscreen-corals.html; see note 38.

[43] See Thomas J. F. Goreau, Ph.D., COVID Halts Dolphin Pollution in Discovery Bay, Jamaica, Global Coral Reef Alliance (May 14, 2020), available at http://www.globalcoral.org/covid-ends-dolphin-pollution-in-discovery-bay-jamaica/.

[44] See H.B. 5001 (line item 1906A), 26th Leg. (Fla. 2020).

[45] See Joe Guudry, The Florida Aquarium, Project Coral: A New Hope to Save an Endangered Species (Aug. 18, 2019), available at https://www.flaquarium.org/blog/posts/project-coral-a-new-hope-to-save-an-endangered-species.

[46] See The Florida Aquarium, The Florida Aquarium Becomes First Organization in History to Induce Spawning of Atlantic Coral; A New Hope to Save Florida’s Reefs (Aug. 21, 2019), available at https://www.flaquarium.org/pressroom/posts/the-florida-aquarium-becomes-first-organization-in-history-to-induce-spawning-of-atlantic-coral-a-ne.

[47] Id.

[48] See National Marine Fisheries Service, NOAA, Coral Reefs: Critical Biodiversity and Fisheries Resources (Mar. 12, 2002).

[49] E. S. Brondizio, J. Settele, S. Díaz & H. T. Ngo, IPBES: Global Assessment Report on Biodiversity and Ecosystem Services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, IPBES Secretariat, Bonn, Germany, 41 (2019).

[50] See I.B. Kuffner, Underwater Temperature on Off-Shore Coral Reefs of the Florida Keys, U.S.A., U.S. Geological Survey Data Release (Apr. 2020), available at https://doi.org/10.5066/F71C1TZK.

[51] Id.

[52] See id.; see also National Centers for Environmental Information, Water Temperature Table of All Coastal Regions, https://www.ncei.noaa.gov/access/data/coastal-water-temperature-guide/all_meanT.html.

[53] See id.

[54] U.S. Geological Survey, Ocean Warming Affecting Florida Reefs (Sept. 9, 2014), https://www.usgs.gov/news/ocean-warming-affecting-florida-reefs.

[55] Id.

[56] See FDEP, Stony Coral Tissue Loss Disease Response, https://floridadep.gov/rcp/coral/content/stony-coral-tissue-loss-disease-response.

[57] Id.

[58] See Erin Brown, Florida’s Dying Reefs Could Devastate Keys’ Economy, Environmental and Energy Study Institute (July 13, 2017), available at https://www.eesi.org/articles/view/floridas-dying-reefs-could-kill-the-florida-keys-economy.

[59] See FDEP, Coral Reef Conservation Program, https://floridadep.gov/rcp/coral.

[60] Id.

Catherine AwasthiCatherine Awasthi is a second-year law student at the Florida State University College of Law, who is pursuing a joint M.S. in aquatic environmental science and oceanography. She is the president of the Student Animal Legal Defense Fund, FSU Chapter. She graduated summa cum laude from the University of Florida with a B.A. in telecommunications.

 

 

Ralph A. DeMeoRalph A. DeMeo is a shareholder in the Tallahassee office of national law firm Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. He received his B.A., cum laude, and M.A., cum laude, in English from Stetson University, and his J.D., cum laude, from Florida State University College of Law. He is the past chair of the Environmental and Land Use Law Section, the Animal Law Section, and The Florida Bar Journal and News Editorial Board.

This column is submitted on behalf of the Animal Law Section, John Powell, chair; Ralph A. DeMeo, editor; and Gregg R. Morton, guest editor.


Animal Law