Experts: ESA-MMPA permitting mismatch blocks projects; manatee cited as recurring example

At a House Natural Resources subcommittee hearing, practitioners warned that statutory and regulatory interactions between the Endangered Species Act and the Marine Mammal Protection Act can prevent ordinary projects from receiving necessary federal permits.

Parker Moore, an environmental attorney with Beveridge & Diamond, described a structural problem: when a species is protected under both statutes as a marine mammal and as an ESA-listed species, NMFS's MMPA permitting requirement typically must be satisfied before Fish and Wildlife can issue ESA incidental-take authorizations. "As a result, projects like marinas, boat ramps, and docks throughout the Southeast that may affect even a single manatee can never receive the necessary federal permits they require," Moore testified.

Moore told the committee that the Fish and Wildlife Service "has never taken the necessary regulatory steps" under the MMPA to allow issuance of certain incidental-take permits for manatees, creating a practical barrier to permitting. He recommended targeted statutory amendments to decouple or harmonize permitting pathways so that activities affecting marine mammals and ESA-listed species would not be trapped in sequential permitting deadlocks.

Members from coastal districts said the permitting mismatch slows infrastructure, energy, and navigation projects. Witnesses recommended narrow legislative fixes, including clarifying the sequence of authorizations and harmonizing regulatory definitions, rather than wholesale repeal of either law.

The problem, witnesses and members agreed, is not necessarily the statutory goals of conservation but structural and procedural friction between two overlapping statutes that were enacted and implemented on different timelines.