Aug. 16, 2016
Each spring, Atlantic sturgeon, an ancient fish 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. Historically, they surged up the river in the hundreds of thousands, but after they became sought after 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 akin to 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. Reports of dead sturgeon began to increase significantly. (A few of the dead fish were shortnose 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 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 “is likely to adversely affect, but not likely to jeopardize the continued existence” of endangered populations of Atlantic and shortnose 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 shortnose 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 New York 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 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 shortnose 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 her 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 shortnose or Atlantic sturgeon.”
(Crocker also noted that NMFS is in the process of proposing critical habitat for Atlantic sturgeon, with the public comment period on the proposed rule open until September 1. Under the Endangered Species Act, NMFS is required to do this, as well as devise a recovery plan. For fiscal year 2016, $235,000 in federal funds became available for grant recipients addressing sturgeon management needs, “including vessel strikes,” wrote Crocker in her email.)
Lipscomb said a study of the sturgeon population by Northeast Area Monitoring & Assessment Program (NEAMAP), which is cited in the BiOp, grossly overestimates the numbers. The survey, which estimated the total adult population of Atlantic sturgeon off the East Coast between 2007 and 2012 as between 33,888 and 338,88 fish, has been discredited by scientists, he said. “It is a stock assessment in which gigantic assumptions are made and it’s not peer reviewed.”
A better gauge of the total population of adult sturgeon spawning in the Hudson, according to Lipscomb, which is also quoted in the BiOp, is a study conducted by the DEC from 1985 to 1995, which pegged the total number of adult fish to 863. Dwayne Fox, an associate professor at Delaware State who has been doing sonar counts of sturgeon near Hyde Park, one of three known spawning areas, as well as keeping track of 400 fish that have been caught and implanted with transmitters off the Delaware coast, agreed the DEC count is fairly accurate. “On an average year, such as in 2015, we might have 10 or 11 fish go up the Delaware and maybe 55 tagged animals going up the Hudson,” he said. “They’re coming up the river in the order of hundreds, not thousands.
“The problem with ship strikes is that there hasn’t been any standardized monitoring program,” Fox added. “People have become more aware of the Atlantic sturgeon,” which he agreed with NMFS could account for the increased numbers of dead fish. “We don’t know the true magnitude of the problem, only what’s reported.”
Fox agreed with Lipscomb that the amount and speed of boat traffic associated with the bridge construction was “an intractable problem.” On his numerous trips up and down the river to and from Hyde Park to do his sturgeon research, he’s observed “guys in the workboats….ripping right through the no-wake zone,” which has a top speed limit of five knots. “Those guys going through there are not going the speed limit.”
Lipscomb said the findings of the new BiOp by NMFS has made the Riverkeeper lawsuit, filed by the Pace Environmental Litigation Clinic, more difficult to win. “The burden of proof is difficult because both NMFS and the bridge contractor allege that even a fish found freshly sliced by a propeller within half a mile of the project, where all vessels except ones from the project are barred, cannot be definitely attributed to the construction of the project. The new BiOp protects the project, not the fish.”
Calls to DEC personnel weren’t returned by press time. A DEC press release issued in February noted that the numbers of juvenile Atlantic sturgeon in the Hudson, which the DEC has been surveying since 2006, reported in 2015 were the highest in the ten years of the survey. “Encouragingly, biologists are now seeing a steady increase in the number of Atlantic sturgeon in the Hudson River as the first protected fish are coming into their prime breeding years,” reads the release. The sturgeon’s hoped-for recovery is expected to take years, since female sturgeon spawn starting at age 7 to 30 years old and then only every two to five years. Responded Lipscomb: “There’s no basis for saying more juvenile fish means there are more adult sturgeon spawning. This is not science.”
The DEC notes that “threats remain,” including by-catch by commercial fisheries, power plant impingement and entrainment from the plant’s water withdrawals (the 2016 BiOp notes that Indian Point has a permit to kill hundreds of sturgeon related to the water withdrawals for its three units through 2033), and mortality from vessel strikes. The release explicitly states “there is no evidence that the construction for the replacement for the Tappan Zee Bridge is the cause of the increased number of reported sturgeon mortality.”
Such reasoning, echoed in NMFS’s 2016 BiOp, sets a bad precedent, Lipscomb said. “NMFS will deal with this next time around by raising the take. They’ve used science to protect the construction project instead of the sturgeon. The boat traffic remains extremely hazardous for fish transiting the construction zone.”