Litigation: Atlantic and Shortnose Sturgeon - notice of intent to sue Delaware and Refinery for take of species
In February 2016, the DRN put the Delaware City Refinery and the State of Delaware on notice that in 60 days they could be sued for their role in the take of Atlantic and shortnose sturgeon at the Refinery, which is a violation of the federal Endangered Species Act (“ESA”). The National Marine Fisheries Service (“NMFS”), the federal agency with responsibility for implementing the ESA with regard to the species at issue here, has held that the Delaware City Refinery’s cooling water intake structure is taking Atlantic and shortnose sturgeon in violation of the ESA. Delaware, through its permitting program authorizing the Refinery to operate, is also causing the take of these species, and is separately and independently liable under for the ESA for its actions.
The current Atlantic sturgeon population in the Delaware River is alarmingly small. Historically, there were about 180,000 spawning Atlantic sturgeon in the Delaware River, now there are less than 300 adult Atlantic sturgeon spawning annually. The shortnose sturgeon are severely imperiled as well.