A crane unloads shipping containers from a barge at the Richmond Marine Terminal on the James River. (Port of Virginia)
A national environmental nonprofit is threatening to sue the federal government over its failure to examine how a program that encourages the use of waterways for shipping affects endangered species, including Atlantic sturgeon in Virginia’s James River.
Increased vessel traffic on major U.S. rivers and coasts resulting from the America’s Marine Highway Program run by the U.S. Maritime Administration “certainly ‘may affect’ listed species that rely on those waterways,” asserts a July 27 letter from the Center for Biological Diversity to the administration.
Despite that potential, the letter says the Maritime Administration has not assessed how the Marine Highway Program as a whole or specific projects it supports could impact endangered species.
“It’s pretty clear that vessel traffic adversely affects the species,” said Jared Margolis, an attorney with the Center for Biological Diversity. “They should have to take that into consideration.”
The Maritime Administration did not respond to specific questions about what reviews it had done with regard to the program’s impact on endangered species. A spokesperson said in an email that “the letter has been received and a response will be provided to the Center for Biological Diversity.”
Established by Congress in 2007, the Marine Highway Program promotes the use of the U.S.’ 25,000 miles of navigable waters for shipping and transportation, including by issuing grants for projects that expand navigation.
Since the program began funding projects in 2010, Virginia has received more than $4.3 million, with over $4 million in grants going toward initiatives related to the Port of Virginia. In 2018, the port, which is run by the Virginia Port Authority, received $1.8 million from the Marine Highway Program to expand existing container shipping service on the James River.
Expansion of service may have led to an increase in ships striking and killing Atlantic sturgeon in the James, the Center for Biological Diversity says.
Scientists and fisheries experts have been struggling for decades to revive Atlantic sturgeon populations, which were abundant along the East Coast until the collapse of the fishery in the early 20th century. The James River, which once supported an estimated 10,000 sturgeon during the spawning season when the fish travel up their natal rivers to reproduce, was believed by many to no longer be home to any of the ancient species.
Virginia imposed a moratorium on sturgeon fishing in 1974, and the Atlantic States Marine Fisheries Commission shut down the fishery along the entire coast in 1998.
In 2012, the National Marine Fisheries Service listed four different populations of Atlantic sturgeon, including the Chesapeake Bay population, as endangered and subsequently required protections to be put in place in areas considered “critical habitat” for the fish, including the James River.
Among the primary threats federal fisheries officials identified as facing Atlantic sturgeon are vessel strikes, particularly in the Delaware and James Rivers.
“While it may be possible that some Atlantic sturgeon riverine populations are experiencing some increase in abundance, they remain at significantly reduced abundance levels compared to historical levels; and, factors such as bycatch mortality, vessel strikes, water quality and habitat destruction are keeping them at reduced levels despite the fishing moratorium and other protective efforts,” wrote the National Marine Fisheries Service in its listing.
Vessel strikes “are a challenging problem given the limited information of how, where, and when the strikes occur,” the agency wrote. “However,” it continued, the Endangered Species Act “provides tools for addressing threats to ESA-listed species,” including consultation among federal agencies.
Under the Endangered Species Act, every federal agency is required “to ensure that any action it authorizes, funds, or carries out, in the United States or upon the high seas, is not likely to jeopardize the continued existence of any listed species or results in the destruction or adverse modification of critical habitat.”
According to the Center for Biological Diversity, the U.S. Maritime Administration has failed to consult with federal fisheries officials on potential impacts the Marine Highway Program may be having on endangered species like Atlantic sturgeon.
In its July 27 letter, the nonprofit asks for not just project-specific reviews but a “programmatic” review that would allow the Maritime Administration to establish standards and guidelines that would minimize the program’s endangered species impacts “before it funds projects or takes other actions to increase vessel traffic where listed species would be affected.”
Margolis described the programmatic review as a “tool to take a step back.”
“We spend a lot of time suing over impacts to listed species,” he said. “Everything is done at such a piecemeal level.”
While the letter is not a formal lawsuit, a news release about the action and Margolis both cast it as a prelude to possible legal action if no steps toward review are taken.
“We’re trying explain why this is required and why this is helpful in order to show the new administration, the Biden administration, why they should be doing it,” said Margolis. Later, he added, “I’m a litigator. I’m ready to sue if needed, but I really want to talk about it.”
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