[Congressional Record (Bound Edition), Volume 145 (1999), Part 11]
[Senate]
[Pages 15210-15211]
[From the U.S. 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:

                                  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.

[[Page 15211]]

       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.

                          ____________________