[Congressional Record Volume 145, Number 96 (Thursday, July 1, 1999)]
[Senate]
[Pages S8065-S8066]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE ALABAMA STURGEON
Mr. LOTT. Mr. President, the story of the efforts to protect the
Alabama Sturgeon has been a very long and very ugly one. For many years
Congress has been involved. Just three years ago, Congress thought they
had put an end to the listing battle when a partnership was formed
between the Fish and Wildlife Service (FWS) and the Alabama Department
of Natural Resources and Conservation. A five-year recovery plan was
established to repopulate the Tennessee-Tombigbee with Sturgeon. Now
this program has fallen to pieces, because the FWS pulled the plug by
taking the dedicated funds and proceeding directly to a formal listing
under the Endangered Species Act.
The FWS needs to do the right thing. For me, this means the FWS
should honor the partnership it set up with Alabama's Department of
Conservation and Natural Resources. This program is at year three of a
5-year program and there is no evidence that the state of Alabama was
performing poorly. However, it is clear the FWS wants to renege on the
deal. Renege on a program that provides more direct and dedicated
funding, and thus more resources, for the Alabama Sturgeon restoration
than any funds the Fish and Wildlife Service spent under its own
auspices. This simply does not make fiscal or scientific sense.
In both 1993 and 1994 Congress opposed the endangered species listing
of the Alabama Sturgeon because of the lack of sound science. Congress
also recognized the tremendous economic impact this listing would have
on our region. The listing would have caused billions of dollars in
river commerce to be disrupted. Nothing has changed in six years--no
new science--no difference in the economic impact.
The FWS promised that the habitat designation will not require the
stopping of dredging. However, someone forgot to tell the FWS office in
Daphne, Alabama, what their position is supposed to be. The FWS office
in Daphne, Alabama, has stated in writing that maintenance dredging
will harm the sturgeon, and thus must not occur. I ask unanimous
consent that the attached letter written to the Mobile, Alabama, office
of the Army Corps of Engineers on June 17, 1999, be printed in the
Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
[[Page S8066]]
U.S. Department of the Interior,
Fish and Wildlife Service,
Daphne, AL, June 17, 1999.
District Engineer,
U.S. Army Corps of Engineers,
Mobile, AL.
Dear Sir: This is the report of the U.S. Fish and Wildlife
Service (Service) concerning public notice AL99-01811-F, in
which the applicant, Boise Cascade Corporation, is proposing
to hydraulically maintenance dredge approximately 2,000 cubic
yards of silt, sand, and clay, per year, for five years from
the Tombigbee River, near mile 89, Washington County,
Alabama. All excavated material would be placed in the
applicant's upland disposal site. The proposed maintenance
dredging is currently authorized by Department of the Army
General Permit Number ALG98-02923-E. This report is prepared
in accordance with the requirements of the Fish and Wildlife
Coordination Act (16 U.S.C. 661-667e) and is to be used in
your determination of 404(b)(1) guidelines compliance (40 CFR
230) and in your public interest review (33 CFR 320.4) as
they relate to protection of fish and wildlife resources.
We do not believe that this project would have significant
impacts on non endangered fish and wildlife resources.
However, we have determined that the federally threatened
gulf sturgeon (Acipenser axyrhincus desotoi) occurs in the
project area. Our records indicate that this species has been
found in the Tombigbee River both upstream and downstream of
the proposed dredge site. The Gulf Sturgeon is an anadromous
fish that migrates from salt water into coastal rivers to
spawn and spend warm months. The majority of its life is
spent in fresh water. Major population limiting factors are
thought to include barriers (dams) to historical spawning
habitats, loss of habitat, poor water quality, and over
fishing. However, we have determined that the proposed
project will likely not affect this species if the following
recommendations are adopted and used:
(1) No dredging work shall be performed during the months
November through April.
(2) No work should be conducted across the entire river
channel at any one time. (All underwater activity shall be
limited to one general location within the river channel at
any time.)
(3) No work barges or vessels should be moored in shallow
waters along the shorelines from November through April.
If the applicant agrees to these conditions, formal
consultation under the Endangered Species Act, Section 7,
will not be necessary at this time. Implementation of these
measures should provide adequate protection to avoid any
impact on Gulf sturgeon inhabiting these waters during winter
months or migrating to/from the Gulf of Mexico. Therefore, if
they are followed, no further endangered species consultation
will be required for this portion of the project unless: (1)
the identified action is subsequently modified in a manner
that causes an effect on this listed species; (2) new
information reveals the identified action may affect another
Federally protected species or a critical habitat in a manner
or to an extent not previously considered; or (3) a new
species is listed or a critical habitat is designated under
the Endangered Species Act that may be affected by the
identified action. Our positions on the proposed maintenance
dredging project is based on the assumption that Best
Management Practices will be followed and the Alabama State
Section 401 CWA certification is not violated.
If you have any questions, please contact Mr. Dean
Heckathorn at 334/441-5181.
Sincerely,
E.R. Roach,
Acting Field Supervisor.
Mr. LOTT. This letter clearly states that dredging can only occur
during six months of the year, and at no time can work be conducted
across the entire river channel. It is clear to me, and it is clear to
all my colleagues in the chamber today that dredging will be stopped.
Also, on May 10, 1999, the FWS office in Daphne, Alabama, again wrote
the Mobile Corp about another maintenance dredging project in Mobile. I
ask unanimous consent that this letter to the Mobile Corp of Engineers
be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
U.S. Department of the Interior,
Fish and Wildlife Service,
Daphne, AL, May 10, 1999.
District Engineer,
U.S. Army Corps of Engineers,
Mobile, AL.
Dear Sir: This is the report of the U.S. Fish and Wildlife
Service (Service) concerning public notice AL99-01328-S in
which the applicant, Kimberly-Clark Corporation, is proposing
to maintenance dredge within an existing dry dock slip on
David Lake, near Mobile River, Mobile County, Alabama. A 200-
foot-long by 52-foot-wide area would be dredged to a depth of
minus 24 mean low water (MLW). All material would be placed
within an existing upland disposals area. This report is
prepared in accordance with the requirements of the Fish and
Wildlife Coordination Act (16 U.S.C. 661-667e) and is to be
used in your determination of 404(b)(1) guidelines compliance
(40 CFR 230) and in your public interest review (33 CFR
320.4) as they relate to protection of fish and wildlife
resources.
The Service does not object to this proposed project.
However, the federally listed Gulf sturgeon (Acipenser
oxyrinchus desotoi--Threatened) and the proposed for listing,
Alabama sturgeon (Scaphirhyncus suttkusl) are found in these
waters. The Gulf sturgeon is an anadromous fish which
migrates from salt water into large coastal river to spawn
and spend the warm months. According to our records the Gulf
sturgeon seasonally occurs and the Alabama sturgeon is a
permanent resident within the Mobile River. Throughout their
ranges these species have had their forage and spawning
habitats adversely affected from dams. In addition, dredging,
desnagging, and spoil deposition carried out in connection
with channel improvement and maintenance represent an ongoing
threat to these sturgeon species.
In order to avoid adverse impacts to these species covered
by the Endangered Species Act of 1973, as amended, (16 U.S.C.
1531 et seq.) (ESA), we recommend that the applicant
implement appropriate Best Management Practices (BMPs)
including the use of turbidity screens, as necessary to
minimize turbidity downstream of the project site. Dredging
activities should not exceed ambient water clarity of more
than 50 Nephelometric turbidity units (NTU's). The Service
believes that your project will not have an adverse effect on
these sturgeon species, if these BMPs are followed. If these
conditions are not acceptable then further consultation with
this office is recommended in accordance with Section 7 of
the ESA.
Should you have any questions or require additional
information, please contact Mr. Dean Heckathorn at (334) 441-
5181.
Sincerely,
E.R. Roach,
Acting Field Supervisor.
Mr. LOTT. This letter stated ``dredging, desnagging, and spoil
disposition carried out in connection with channel improvement and
maintenance represent an ongoing threat to these sturgeon species.''
Again this proves dredging will be stopped, and the FWS will not hold
true to its oral promises here in Washington.
During this time frame a lawsuit has also been pending in the United
States District Court for the Middle District of Alabama, styled
Alabama Sturgeon. et al. v. Bruce Babbitt, as Secretary of the
Interior, et al. Two months ago, on April 26, 1999, the court issued an
Order noting the parties were engaged in ``settlement negotiations''
which were likely to lead to dismissal of the lawsuit. Four days later,
on April 30, 1999, for some unknown reason the court issued the Order
proposing to dismiss the lawsuit upon the payment of $20,000 in
attorneys' fees and costs to the plaintiffs by the government. Neither
the Court Order nor the Joint Stipulation of Dismissal and Notice of a
Compromise Settlement of Attorney's fees and Costs makes any attempt to
justify the rationale for this result. For some reason the Justice
Department apparently decided to simply make a gift of $20,000 to the
lawyers in this case.
This Administration has not only given away $20,000 to these lawyers
to sweep this lawsuit under the rug, it also stole more than $400,000
designated for sturgeon restoration. I am disappointed by these
actions.
It is my firm belief that Alabama's Federal partner is not motivated
by a desire to restore the sturgeon. Clearly, making a decision to list
the Alabama Sturgeon as an endangered species, while having no new
scientific information must be based in politics--not science. Why an
adversarial approach? The solution to this politically driven problem
is simple. Let Alabama finish its 5-year program. The Fish and Wildlife
Service action is wrong for Alabama . . . wrong for Mississippi . . .
wrong for America. We all must continue to press forward in this fight
to do the right thing for the Alabama Sturgeon in spite of these
actions by FWS.
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