Riverkeeper Gives Thruway Authority and Bridge Builder Notice of Pending Lawsuit

BY JANIE ROSMAN
PHOTOS CREDIT LEE ROSS

These aerial photos taken in 2013 and 2015 show how Tappan Zee Bridge project activities have caused the resuspension of bottom sediments, causing plumes of turbid water, in visible contrast to the natural conditions of the Hudson River estuary.

Watchdog group Riverkeeper, Inc. put the Thruway Authority and Tappan Zee Constructors, LLC on a 60-day notice of intent to sue (collectively “Project Owners”) as permittee and contractor, respectively, responsible for project activities.

The notice contends the “Projects Owners violated their Incidental Take Statement and the Environmental Species Act (ESA) by causing the illegal take of Atlantic and shortnose sturgeons in the Hudson River Estuary.”

Riverkeeper President Paul Gallay said the group intends to hold the state to its promise for “the most environmentally friendly bridge construction project ever” as it has on three previous occasions. “This project simply cannot be built on the backs of the endangered, iconic Hudson River sturgeon.”

“There is no credible scientific evidence that the project activities have negatively impacted the sturgeon populations,” Thruway Authority spokesperson Jennifer Givner said Saturday via statement.

Givner said since construction began (in January 2013) “the project team has taken unprecedented measures to protect endangered sturgeon and other aquatic life in the Hudson River and reduce resuspension of sediments due to vessel movements.”

These include using bubble curtains during pile driving to reduce underwater noise, extensively monitoring, tracking and studying sturgeon habitat, armoring the construction and dredge access channel, and substantially monitoring water quality.

Gallay disagreed. “There is no other credible explanation for the 20-fold increase in reported mortality of endangered sturgeon since construction began,” he said.

The original permission given the Thruway by National Marine Fisheries Service allowed killing two Atlantic and two shortnose sturgeon during the entire five-year project based upon the best available science on the critically-low sturgeon populations in coastal waters and the Hudson Estuary.

Riverkeeper maintained no progress can be made to further protect federally endangered sturgeon so long as the Authority denies evidence that let NMFS to reinitiate an ESA review of the project’s impact. Its notice “relates to clear and repeated violations of the NYS DEC permit which specifies that project related activity of any kind must not re-suspend contaminated river bottom sediments beyond a 500 foot permitted mixing zone.”

An aerial photographer documents numerous occasions when this zone “has been greatly exceeded. This issue is cut and dried. The photographs don’t lie.” In a necropsy report dated June 26, 2015, Cornell scientists said a dead sturgeon was discovered on June 4, 2015, by Tappan Zee constructors approximately one mile upstream of construction activities for the New NY Bridge at Tappan Zee.

In July Riverkeeper called upon the National Marine Fisheries Service to act immediately and protect the Hudson River fish while investigating an increase in sturgeon fatalities. It describes a massive injury to the Atlantic sturgeon and states: “What caused this trauma is unknown. One possibility, given the appearance of sharp force trauma, would be a watercraft propeller,” the scientists said.

Riverkeeper said in the four years prior to construction, six dead sturgeon were reported, and since construction started, 122 were reported.

It said necropsies on two sturgeon recovered by bridge construction crews close to the construction site in June 2015 (Atlantic sturgeon) and August 2015 (shortnose sturgeon), found that the deaths were likely caused by vessel strikes. A third sturgeon (shortnose) found by construction crews, in May 2014, was deemed possibly killed by a vessel strike.

In 2013, when construction began in earnest, 25 sturgeon deaths were reported. In 2014, 43 were reported. And so far in 2015, 46 have been reported.

The Authority maintained vessel strikes caused by propellers are more likely caused by the thousands of non-project related recreational and commercial vessels and not to the project’s 40 propeller driven vessels, and said reported sturgeon mortalities happen throughout the Hudson River, not specifically in the project area.

Pace Environmental Litigation Clinic, Inc., representing Riverkeeper in this matter, said it “would be willing to discuss effective remedies for the violations noted in this letter.” If the Thruway Authority and TZC want to settle, then they must initiate discussion within 10 days of receiving the letter to arrange a meeting and complete negotiations before the 60-day period ends.