Riverkeeper Inc. has informed the state Thruway Authority and the group of contractors designing and building the new Tappan Zee Bridge of its intent to sue them for violating federal laws, according to two letters penned by the environmental organization Dec. 16.
The separate citizen lawsuit threats ”“ both directed at the Thruway Authority and the consortium building the bridge, Tappan Zee Constructors LLC ”“ are related to Riverkeeper”™s allegations that the construction of the new bridge has contributed to the increase of sturgeon mortality and sediment pollutant that has surfaced from the bottom of the Hudson River, violations of the Endangered Species Act and Clean Water Act, respectively.
In a prepared statement, the Thruway Authority responded that it has taken “unprecedented measures” to protect all aquatic life and reduce resuspension of sediments in the Hudson River where the construction for the bridge connecting Westchester and Rockland counties is taking place.
With the letter, the Pace Environmental Litigation Clinic, an attorney group with Pace University School of Law that represents Ossining-based Riverkeeper, gives the bridge builders a 60-day notice to either come to the table and discuss potential remedies as part of a settlement, or be sued.
If settlements are not reached, Riverkeeper will seek court orders to prevent future violations of the laws, civil penalties and compensation for Riverkeeper”™s litigation costs and attorney”™s fees.
Riverkeeper notified the National Marine Fisheries Service in a letter sent in July that sturgeon deaths had increased dramatically since the bridge”™s construction started in 2012.
The environmental nonprofit highlighted findings from the state Department of Environmental Conservation that during the years 2007 and 2012 a combined 21 sturgeon were reported dead within 15 miles of the Tappan Zee. The next year, from 2013 to 2014, 68 of the endangered fish species were found dead in the same area.
As a result of numerous reports regarding observations about increased sturgeon mortality, the federal agency began a new analysis earlier this year to analyze the potential effects of propeller-driven vessels working on the bridge project and their threat to sturgeon life.
Because the species of sturgeon in the Hudson are endangered, the agreement for the bridge builders to obtain a permit said no more than four sturgeon ”“ two of the shortnose sturgeon species and two of the Atlantic sturgeon species ”“ could die as a result of pile driving and dredging.
Vessel strikes were not cited by the National Marine Fisheries Service as a significant threat to sturgeon life by assuming that the project”™s boats would be operating at no more than 6 knots. Riverkeeper has said that vessels routinely move faster than 6 knots.
The agency could change the rules and assumptions regarding the relationship between vessels and sturgeon in a new biological opinion expected to be released this winter as a result of the ongoing analysis started earlier this year.
According to a statement from the Thruway Authority, “There is no credible scientific evidence that the project activities have negatively impacted the sturgeon populations.” In addition, the state agency cites mitigation investments it has made to protect the fish, such as bubble curtains that help reduce noise during pile driving.
The sediment issue, separate from the problem of sturgeon mortality, has to do with the potentially hazardous dust and clay that settles on the bottom of the river and if disturbed surfaces into a cloudy haze.
The language in the agreement for the water permit, which is needed by the bridge builders to begin the project, said that any “increase [of turbidity] that will cause a substantial visible contrast to natural conditions” is prohibited.
Between September 2013 and October 2015, Riverkeeper provided in its letter photo documentation of eight instances that appears to show surfaced river sediment that could contain water pollutants such as mercury, PCBs, naphthalene, benzo(a)pyrene, nickel, copper, lead or zinc.
The Thruway Authority has said that it has helped to reduce the resuspension of sediments due to vessel movements by constructing and armoring the dredge access channel as well as doing consistent water monitoring.
Riverkeeper said in its letter about the sediment issue that the photographs are evidence that the natural condition of the Hudson have become “highly turbid” on numerous occasions, which violates the standards for the water permit and therefore the federal Water Quality Act.
In a statement, Riverkeeper President Paul Gallay said, “The state promised the most environmentally friendly bridge construction project ever, and we intend to hold them to that promise.”
