Each spring, Atlantic sturgeon, a species dating back more than 120 million years to the era of the dinosaurs, swim up the Hudson River to spawn. These ocean-dwelling behemoths, which measure six feet or more at maturity, vacuum up mollusks, crustaceans, plants and small fish from the river bottom with their snout-like mouths and lay their eggs on the rocky bottom of freshwater stretches above the salt wedge.
In days past, they surged up the river in the hundreds of thousands, but after demand surged for their caviar and meat in the late 1800s, their numbers plummeted. Overfishing, along with dam construction, water pollution, dredging, power plant impingements and boat collisions subsequently wiped out sturgeon on all but five of the 15 rivers on the east coast where they were historically found.
In 2012, the Atlantic sturgeon was officially listed as an endangered species, which means that killing, capturing, or transporting one is as serious an offense as messing with a bald eagle, carrying fines of up to $50,000. Unfortunately, the same year, a new threat emerged in the Hudson River: the new Tappan Zee bridge construction. As work got going on the Rockland-to-Westchester span, reports of dead sturgeon began to increase significantly. (A few of the dead fish were short nose sturgeon, a smaller species, also endangered, that resides exclusively in the river.)
Riverkeeper, the nonprofit organization that serves as the river’s clean-water advocate, claimed there was a definite cause and effect between the deaths and the bridge construction. Every adult sturgeon must swim past the bridge site to get upriver to its spawning grounds — and swim back through the area a second time on its way back to the ocean. Juvenile sturgeon also inhabit the area.
Under the Endangered Species Act, the National Marine Fisheries Services (NMFS), a division of the National Oceanic and Atmospheric Administration, is required to work with federal agencies to ensure any project they authorize or fund does not jeopardize an endangered species. In the Biological Opinion (BiOp) it submitted to the Federal Highway Authority, U.S. Coast Guard, and Army Corps of Engineers in 2013 for the new Tappan Zee bridge construction, NMFS stated the work is “is likely to adversely affect, but not likely to jeopardize the continued existence” of endangered populations of Atlantic and short nose sturgeon — a line of reasoning that allowed for a certain “take” of fish. NMFS concluded that dredging or pile driving would likely cause the deaths of two short nose sturgeon and two Atlantic sturgeon over the course of the entire five-year project.
But the reports of dead sturgeon far exceeded that number, so in July 2015, Riverkeeper, whose patrol boat serves as the Hudson’s environmental watchdog, petitioned the NMFS to investigate and take immediate action. Riverkeeper noted in its petition that in the three-year period before the bridge construction began — 2009 to 2011 — only six sturgeon fatalities were reported to the state Department of Environmental Conservation (DEC), which had begun recording sturgeon deaths in 2007.
Between 2012 to 2014 there were 78 deaths. Many fish were found cut in half, gashed along the back or belly and with the head and/or tail severed, clear indications of vessel strikes. Dozens more deaths have been reported since — a total of 139 sturgeon deaths as of January 2016, with at least 18 more reported since then, according to Riverkeeper. The project’s pile driving, dredging and dozens of vessels — a total of 152, including 72 propeller-powered crew boats — seemed to correlate with the uptick in fatalities.
Given that the NMFS BiOp didn’t allow for one sturgeon death from vessel strikes, Riverkeeper noted in its petition that even if one fish were found to have been killed from a collision with a boat connected to the project, it would have exceeded NMFS’s allowable take. In response to Riverkeeper’s concerns, NMFS released a new, updated Biological Opinion in June, which Riverboat patrol boat captain John Lipscomb hoped would include new requirements to protect to the fish.
But it does nothing of the sort. NMFS “clearly acknowledge the allowable take of four fish has been exceeded, but what they did is increase the take, to six short nose sturgeon and six Atlantic sturgeon,” Lipscomb said. The report “doesn’t require any reduction in the number of vessel trips, nor put restrictions on vessels transiting outside the dredge areas,” he said.
In the report, the increased fish mortality “is being disputed in a dozen different ways by assumptions and models and expectations and estimates,” he continued. “The public pays every one of these people with tax dollars, and it’s a shameful manipulation.”
The NMFS BiOp acknowledges that at least 59 of the 139 sturgeon killed since 2013 were from vessel strikes. Of these, it identifies 24 as being from the bridge site. But it stops short of stating the obvious, instead claiming that blaming the bridge-related boat traffic is impossible since the monitoring at the site was “opportunistic.”
Furthermore, because there was no such monitoring done before the bridge construction, NMFS asserts the high mortality numbers doesn’t necessarily mean that more fish are dying, but reflects better reporting from the public. “It’s an assumption bordering on a lie,” said Lipscomb. “I’ve been running the patrol boat for Riverkeeper since 2000, and in the spring of 2002 when we started finding dead white perch and other species we were inundated with calls from the public. That’s evidence that when the river is ailing, the public is extremely concerned and robust in its reporting.” In fact, it was notifications from the public — shad fishermen who weren’t finding any sturgeon in their nets — that first alerted the DEC to the alarming collapse of the species, he said.
In its 2013 BiOp, NMFS assumed the boats would be traveling at a speed of six knots or less. In its updated BiOp, NMFS notes that 40 boats with propellers had actually been traveling at speeds between 15 and 35 knots, information that would seem to indicate the project vessels were much more of a threat to the sturgeon than assumed. But NMFS does not advise slower speeds, seeming to contradict the cause-and-effect assumption of its earlier report.
It acknowledges the significant number of sturgeon being killed by boat strikes — more than 10 times its allowable take of four fish in its 2013 BiOp — but doesn’t suggest any preventable action, other than relaxing the requirements for the sturgeon survey monitoring by the bridge construction personnel from 24 hours to 48 hours. Julie Crocker, a spokesperson for NOAA Federal, which administers NMFS, wrote in an email that “any sturgeon killed in the vessel impact area is expected to remain in the monitoring area for 48 hours.” But Lipscomb claimed that type of reasoning is “a methodology that guarantees the majority of fish will potentially be missed, because the river is two miles wide.
“They state the contractor must tell the captain and crew to look for a sturgeon that may have been struck, but anyone who runs a boat in the Hudson knows how ridiculous that is, since the water is far too turbid to see more than one or two feet and sturgeon do not come to the surface and swim around,” he said.
Lipscomb also claims the NMFS BiOp cites faulty data. For example, in determining the farthest distance a fish hit by a boat in the bridge project would travel, the BiOp relies on a drift study that doesn’t take into account wind as a factor.
“It’s useless science,” said Lipscomb. “We are heartbroken by the new BiOp. I was hopeful the NMFS would do the right thing, but in fact they’re protecting the project” — a response to political pressure from Albany that is undermining protection for the fish in the interests of completing the project, he asserts.
In response, Crocker wrote in an email that the BiOp “is based on the best available scientific information, as required by the ESA [Endangered Species Act]. As explained throughout the Opinion, several assumptions had to be made.”
Crocker noted that the 2016 Opinion “does exempt a higher level of lethal take than previous Opinions, but it is still a very small amount and we concluded the loss of these individuals over a three-year period … was not likely to jeopardize the continued existence of short nose or Atlantic sturgeon.”
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