On a small oyster boat at the mouth of Fowl River, as Troy Cornelius added handfuls of dead oysters to three nearly-full boxes, he said the low numbers of healthy oysters he’s seen in recent harvests cost him more than just potential revenue.

“That’s a lot of time and effort. That’s a lot of coming out in the cold and getting eat up by greenheads and jellyfish,” he said, pointing to the roughly 1,200 dead oysters he’d set aside that morning. “I should be getting 40 to 50 cents a piece for these, but instead, I’m about to go dump them in my yard.”

Cornelius, owner of Portersville Bay Oyster Company in Coden, estimated he’s lost close to a half a million oysters since May. While any oyster operation can see a 3 to 5 percent mortality rate, Cornelius claims his has been closer to 60 percent since a state-sponsored restoration project on Marsh Island began this summer.

The project, priced at approximately $11.2 million, is an early restoration effort funded by BP to address damage caused by the Deepwater Horizon oil spill. The Natural Resource Damage Assessment (NRDA) effort is being overseen by the Alabama Department of Conservation and Natural Resources (ADCNR).

As a part of Alabama’s roughly $100 million in NRDA projects, the restoration of Marsh Island should ultimately preserve the existing 24 acres while adding another 50 acres by strategically placing sediment and planting native marsh vegetation to extend the island’s perimeter.

However, the restoration requires dredging up and moving millions of cubic yards of sediment and silt Cornelius says is creeping back into Fowl River and into the area where he and others maintain aquaculture easements in state-owned waters.

“Whenever that tide comes in, it’s like a funnel going up into Fowl River, and when you’ve got any kind of Southwind, that sediment runs right up through there,” Cornelius said. “This bay is only 5-foot deep in most places, so it doesn’t have much place to settle. Even one or two centimeters can kill [oysters] because they can’t filter through the excess sediment.”

Last week, Cornelius and his company filed a lawsuit against ADCNR Commissioner Gunter Guy and 4H Construction — the company awarded the project in January by bid.

According to the complaint, 4H has failed to follow certain contractual requirements including “the prevention of sediment release, creating proper containment berms to prevent the movement of any sediment, and ensuring turbidity levels” do not exceed a certain within 200 feet of the project.”

Turbidity, defined as a “cloudiness or haziness” and often compared to smog in the air, can be a sign of dissolved materials negatively affecting water quality. In the same area of Portersville Bay, water quality has already been an issue in recent years because of stormwater runoff and Bayou La Batre’s sewer treatment plant outfall line.

In 2012, the Alabama Department of Public Health shut down harvesting in Portersville Bay three times, then five times in 2013. The problem persisted in 2015, and according to Cornelius, his operation was only able to run for seven of the last 12 months because ADPH ordered farmers to cease harvesting oysters in the bay.

Cornelius said he continued to produce healthy oysters but was unable to harvest or sell them. Now, not long after finally seeing the waters consistently open, his operation is being sidelined once again and he’s pointing the finger southward to the Marsh Island restoration project.

“… Being as I’m taking up the water column, I’ve got to pay the state a fee every year to keep [people] out of it more of or less,” he said. “If feels like the same state I’m paying to grow my oysters has, in turn, let this happen.”

Though ADCNR isn’t listed independently as a defendant, Guy is named in his official capacity. Lagniappe reached out to Guy through ADCNR contacts in the State Lands and Marine Resources divisions but did not immediately receive a response.

On a Sept. 26 visit to the job site on Marsh Island, there was no visible barrier or silt fencing surrounding the project and cloudy water could be seen drifting away from its berm. Aerial photographs taken by pilot and photographer Sam St. John also appear to show dredged sediment drifting in the area.

While Cornelius’ operation is more than a mile from the site, he said it would be easy for a southwest wind to carry the sediment — and whatever has dissolved in it — closer to the shore, affecting his caged oysters, his bottom-grown oysters and others grown through Auburn University’s aquaculture program.

A map showing the area of an oyster reef restoration project planned in Mobile Bay.

A map showing the area of an oyster reef restoration project planned in Mobile Bay.

Not only that, if what Cornelius’ lawsuit alleges is true, the sediment from the Marsh Island restoration could also affect other BP-funded recovery efforts in the same area. In fact, a $3.2 million project has already been approved in NRDA’s third phase that aims to place 30,000 to 40,000 cubic yards of oyster shell clutch over 319 acres in the same area.

In the meantime, while his attorneys are preparing for a legal battle, Cornelius is continuing to check his oyster baskets daily — separating the dead from the living by hand as he goes.

Young oysters, or spat, grown in floating cages in Portersville Bay.

Young oysters, or spat, grown in floating cages in Portersville Bay.

With lifeless spat sticking to his glove, Cornelius said some of what he finds in his daily checks is “heartbreaking,” not just for his bottom line, but also for an oystering community that once thrived in the waters of Portersville Bay.

“I’ve been making my living off this for 30 years coming out here. You can’t tell me which way the tide runs. These folks sit behind a desk and … the decisions they make are just unbelievable sometimes,” he said. “It’s destroyed a whole way of life and put many a family out of work.”