Mobile Baykeeper intends to sue Army Corps of Engineers over $366 million channel deepening project

This story was updated at 4:41 p.m. on July 23, 2024, to include comments from the U.S. Army Corps of Engineers and the Mobile Chamber.

Mobile Baykeeper and the Center for Biological Diversity announced Tuesday it has filed a notice of intent to sue the U.S. Army Corps of Engineers for its alleged failure to protect endangered Gulf Sturgeon during its $366 million project to deepen and widen the shipping channel in Mobile Bay.

“This isn’t just about protecting sturgeon and their ecosystem – it’s about protecting the bay and the hard-working people who make a living on the water,” Cade Kistler, head of Mobile Baykeeper, one of the largest environmental advocacy groups in the region, said in a news release. “Improving water quality and habitat conditions by limiting dredge sediment dumping will enhance fishing and protect important habitats such as seagrass and oysters in Mobile Bay.”

“Learning that Gulf sturgeon spend so much of their lives in Mobile Bay is an exciting discovery, and it means they need help there,” Lindsay Reeves, a senior attorney at the Center for Biological Diversity, said in the news release. “We have to make sure the Corps is doing right by these ancient creatures and protecting this important habitat from dangerous dredging.”

“The Mobile Harbor project complies with all applicable federal and state regulations,” Dustin Gautney, a spokesperson for the corps of engineers, said in an email. “The U.S. Army Corps of Engineers is actively monitoring dredging to ensure compliance and continues to work with jurisdictional agencies to protect resources in Mobile Bay.”

Gulf Sturgeon, which can grow to be up to nine feet long and weigh more than 300 pounds, spend their winters in Mobile Bay before migrating upriver to spawn, according to a press release from Mobile Baykeeper. The species has been protected under the Endangered Species Act since 1991.

As part of the deepening and widening project, the corps of engineers and its contractors will dredge 90 million cubic yards of sediment and deposit it back into the bay at certain locations. This dredging, Mobile Baykeeper alleges, harms bottom-feeding sturgeon by sucking up their food sources (like crustaceans, worms and mollusks) and burying it in sediment in another location.

Gulf Sturgeon are prehistoric animals that lived in the time of dinosaurs, according to the Florida Department of Fish and Wildlife Conservation.

The fish can be found from Louisiana all the way to Florida, and their spawning rivers, including the Bogue Chitto River in Louisiana and the Suwannee River in Florida, were designated as “critical habitat” for the species in 2003. Mobile Bay was not included, since the presence of Gulf Sturgeon was not known then, the release from Baykeeper says.

In 2023, the University of Southern Mississippi published a study that found more than 200 gulf sturgeon in the Mobile Bay Estuary from 2016-2021.

“In light of the new study, the Corps has a legal duty to consult with scientists at the U.S. Fish and Wildlife Service and NOAA National Marine Fisheries Service to make sure its dredging project does not drive Gulf Sturgeon extinct or destroy the places they need to survive,” Mobile Baykeeper’s press release states.

The corps of engineers says it completed a consultation on endangered species—like the Gulf Sturgeon—in 2019 and 2023 for the deepening and widening project.

“This is an unfortunate development, particularly considering that the Port has offered to facilitate additional conversations between Baykeeper and the Army Corps of Engineers to address Baykeeper’s concerns,” Maggie Oliver, vice president of communications and federal affairs with the Alabama Port Authority, said in a statement. “Disappointingly, Baykeeper is now threatening litigation instead of working collaboratively to continue protecting the Bay we all love...It is our hope that Baykeeper will begin to work collaboratively with federal and state agencies - who are willing and able to discuss their concerns - instead of resorting to costly and time-consuming litigation to achieve the same ends.”

Mobile Baykeeper wants the Corps to make some mitigation efforts to curb the impacts of the deepening and widening project. Those demands include halting depositing the dredged spoil in the bay that is not “beneficial use” and Baykeeper’s involvement and approval of future “beneficial use” projects.

One “beneficial use” of the dredged material is the Dauphin Island Causeway Restoration Project: a plan to create habitat along the road to protect it from storms. Dredged material from the deepening and widening project is being used as part of that project.

“Despite finding no adverse impacts, the Port, in partnership with [the Corps], has committed to prioritize all eligible material from the project for beneficial uses throughout the community, including shoreline restoration at Dauphin Island, wetlands restoration at Deer River, and oyster restoration in Mobile Bay,” Oliver said in a statement.

Mobile Baykeeper has criticized the deepening and widening project in the past. In 2018, the Corps produced an environmental impact statement on the project and determined that there would be “no substantial impacts in aquatic resources within the study area.”

Marine scholars and fisherman criticized the study; Mobile Baykeeper filed a detailed response with the Corps.

“The channel deepening and widening project was approved through a rigorous environmental process with multiple state and federal agencies that found no adverse effects on the Bay’s plant life and wildlife,” Oliver said. “This process included federal approval under the 20 applicable environmental and endangered species protection laws, thorough reviews by all federal and state regulatory agencies, and wide-ranging local input from Baykeeper and other environmental advocates.”

Dredging to deepen the shipping channel has impacts beyond Gulf Sturgeon, Baykeeper argues. Depositing the dredged spoil back into the bay increases turbidity, or cloudiness, in the water. This blocks seagrass from getting sunlight it needs to grow and can disrupt the oyster reproduction cycle.

Richard Rutland, a charter fishing captain that operates in the Mobile Bay area, says he’s seen the impact the increased turbidity has had. Seagrass provides a refuge and food for fish, he says; protecting the ecosystem is crucial to maintaining high numbers of fish.

“If you talk to the old-timers, you’ll hear them talk about being able to see 10 to 15 feet down into the bay,” Rutland said. “That’s just unheard of today.”

Baykeeper highlights the Port of Savannah in Georgia as a model for mitigating the impacts of dredging. The Corps of Engineers places millions of cubic yards of dredged sediment in “dredged material containment areas” as part of its regular maintenance of the Savannah River.

A 2013 settlement between the Corps, the Georgia Ports Authority and environmental groups provides for mitigation efforts around the Port of Savannah; Georgia port officials had to spend an additional $25 million on conservation efforts, according to news reports at the time.

After filing the notice of intent to sue, Mobile Baykeeper and the Center for Biological Diversity will have 60 days to file litigation.

Bradley Byrne, head of the Mobile Chamber, highlighted the economic importance of the deepening and widening project in a statement on the lawsuit.

“While lawsuits like this one are adept at generating headlines, they’re not exactly known for building bridges (or in this case, shipping channels) towards a better future,” Byrne said in an email. “The deepening and widening of the ship channel, which was approved through a rigorous environmental process, will make Mobile Bay the deepest harbor on the Gulf Coast. This is a huge competitive advantage as it allows access to larger cargo ships, attracts new businesses and trade opportunities, and in turn, translates into more jobs and economic growth for our region. This lawsuit does just the opposite and threatens future job growth. We believe economic prosperity and environmental protection can go hand in hand.”