Del. Dep't of Natural Res. & Envtl. Control v. U.S. Army Corps of Eng'rs

• Decision Date: 03 July 2012
• Docket Number: Nos. 11–1283,11–1421,11–1414,11–1424.,s. 11–1283
• Citation: 74 ERC 2025,685 F.3d 259
• Parties: State of DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL. Delaware Riverkeeper Network; The Delaware Riverkeeper; Delaware Nature Society; National Wildlife Federation; New Jersey Environmental Federation; Clean Water Action, Intervenor–Plaintiffs State of New Jersey Department of Environmental Protection, Intervenor–Plaintiff v. UNITED STATES ARMY CORPS OF ENGINEERS; Honorable John McHugh, Secretary of the Army, in his official capacity; Honorable Jo–Ellen Darcy, Assistant Secretary of the Army for Civil Works, in her official capacity; Lt. Gen. Robert L. Van Antwerp, Jr., Commander, USACOE, in his official capacity; Lt. Col. Thomas Tickner, Commander, USACOE, North Atlantic Division, Philadelphia District, in his official capacity Philadelphia Regional Port Authority, Intervenor–Defendant. Delaware Riverkeeper Network; The Delaware Riverkeeper; Delaware Nature Society; National Wildlife Federation; New Jersey Environmental Federation; Clean Water Action, Appellants at No. 11–1283. State of New Jersey Department of Environmental Protection, Appellant at No. 11–1421. State of New Jersey, Department of Environmental Protection; Bob Martin; Delaware Riverkeeper Network; The Delaware Riverkeeper; Delaware Nature Society; National Wildlife Federation; New Jersey Environmental Federation; Clean Water Action v. United States Army Corps of Engineers; Lieutenant Colonel Thomas Tickner, as District Commander of the Army Corps of Engineers Philadelphia District; Jo–Ellen Darcy, as Assistant Secretary for Civil Works, United States Army Corps of Engineers; John McHugh; Lieutenant General Robert L. Van Antwerp, Jr., Commander (in his official capacity); Colonel Peter A. DeLuca, Commander, North Atlantic Division in his official capacity Philadelphia Regional Port Authority, Intervenor–Defendant. State of New Jersey, Department of Environmental Protection; Bob Martin, Appellants at No. 11–1414. Delaware Riverkeeper Network; The Delaware Riverkeeper; Delaware Nature Society; National Wildlife Federation; New Jersey Environmental Federation; Clean Water Action, Appellants at No. 11–1424.
• Court: U.S. Court of Appeals — Third Circuit

685 F.3d 259

74 ERC 2025

State of DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL.

Delaware Riverkeeper Network; The Delaware Riverkeeper; Delaware Nature Society; National Wildlife Federation; New Jersey Environmental Federation; Clean Water Action, Intervenor–Plaintiffs

State of New Jersey Department of Environmental Protection, Intervenor–Plaintiff

v.UNITED STATES ARMY CORPS OF ENGINEERS; Honorable John McHugh, Secretary of the Army, in his official capacity; Honorable Jo–Ellen Darcy, Assistant Secretary of the Army for Civil Works, in her official capacity; Lt. Gen. Robert L. Van Antwerp, Jr., Commander, USACOE, in his official capacity; Lt. Col. Thomas Tickner, Commander, USACOE, North Atlantic Division, Philadelphia District, in his official capacity

Philadelphia Regional Port Authority, Intervenor–Defendant.

Delaware Riverkeeper Network; The Delaware Riverkeeper; Delaware Nature Society; National Wildlife Federation; New Jersey Environmental Federation; Clean Water Action, Appellants at No. 11–1283.

State of New Jersey Department of Environmental Protection, Appellant at No. 11–1421.

State of New Jersey, Department of Environmental Protection; Bob Martin; Delaware Riverkeeper Network; The Delaware Riverkeeper; Delaware Nature Society; National Wildlife Federation; New Jersey Environmental Federation; Clean Water Action

v.United States Army Corps of Engineers; Lieutenant Colonel Thomas Tickner, as District Commander of the Army Corps of Engineers Philadelphia District; Jo–Ellen Darcy, as Assistant Secretary for Civil Works, United States Army Corps of Engineers; John McHugh; Lieutenant General Robert L. Van Antwerp, Jr., Commander (in his official capacity); Colonel Peter A. DeLuca, Commander, North Atlantic Division in his official capacity

Philadelphia Regional Port Authority, Intervenor–Defendant.

State of New Jersey, Department of Environmental Protection; Bob Martin, Appellants at No. 11–1414.

Delaware Riverkeeper Network; The Delaware Riverkeeper; Delaware Nature Society; National Wildlife Federation; New Jersey Environmental Federation; Clean Water Action, Appellants at No. 11–1424.

Nos. 11–1283, 11–1421, 11–1414, 11–1424.

United States Court of Appeals, Third Circuit.

Argued Jan. 18, 2012.

Filed: July 3, 2012.

Jane P. Davenport McClintock, Esquire (Argued), Delaware Riverkeeper Network, Bristol, PA, for Delaware Riverkeeper Network; The Delaware Riverkeeper; Delaware Nature Society; National Wildlife Federation; New Jersey Environmental Federation; Clean Water Action.

Kristen D. Heinzerling, Esquire (Argued), Eileen P. Kelly, Esquire, Jean Patrice Reilly, Esquire, Office of Attorney General of New Jersey, Trenton, NJ, for State of New Jersey Department of Environmental Protection; Bob Martin.

Mark R. Haag, Esquire (Argued), United States Department of Justice, Washington, D.C., for United States Army Corps of Engineers; John McHugh; Jo–Ellen Darcy; Robert L. Van Antwerp, Jr.; Thomas Tickner; Peter A. DeLuca.

Harry Weiss, Esquire (Argued), Michael C. Duffy, Esquire, Marlene S. Gomez, Esquire, Ballard Spahr, Claudia M. Tesoro, Esquire, Barry N. Kramer, Esquire, Office

of Attorney General of Pennsylvania, Philadelphia, PA, Beth E. Moskow–Schnoll, Esquire, Ballard Spahr, Wilmington, DE, Barry A. Steinberg, Esquire, Kutak Rock, Washington, D.C., for Philadelphia Regional Port Authority.

Before: SCIRICA, FUENTES and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

At issue is whether the U.S. Army Corps of Engineers can deepen the main channel of the Delaware River by five feet, enabling river ports to be economically competitive and at the same time, comply with statutes that protect the environment. The roots of the project trace back decades. In 1992, Congress authorized the project and appropriated $195 million. It continued to support the effort with regular appropriations for the next twenty years.¹ Commencement was delayed for several reasons, but in the fall of 2009, the Corps was ready to proceed. In October 2009, New Jersey and Delaware filed suits in the District Courts of New Jersey and Delaware to enjoin the Corps from dredging the deeper channel. They alleged violations of the National Environmental Policy Act (“NEPA”), the Clean Water Act (“CWA”), and the Coastal Zone Management Act (“CZMA”). Each District Court granted summary judgment to the Corps, holding no environmental statutes would be breached. We will affirm.

I.

A.

The federal government has maintained navigation in the Delaware River for over one hundred years. The initial project, “Philadelphia to the Sea,” was authorized by Congress in 1910 and ensures a navigation channel of 40–foot depth between Allegheny Avenue, Philadelphia, and a deep water point in the Delaware Bay, near Ship John Light. It requires the Corps to dredge 3.45 million cubic yards of material annually and to deposit the sediment at nearby locations, either owned or leased by the federal government. In 2009, the Corps used seven confined sites and one open-water site for disposal.

The deepening project dates to 1954, when the Senate Committee on Public Works, by resolution, requested the Corps to study “the Delaware River between Philadelphia and the sea, for the purpose of identifying the need for any modification to the existing channel dimensions and anchorage areas.” In 1970, the House Committee on Public Works also instructed the Corps to analyze commerce along the Delaware River and to identify projects that would promote development of its ports. Pursuant to these directives, the Corps made extensive studies during the 1970s and 1980s. In 1992, it published a Feasibility Report and Environmental Impact Statement (“EIS”), recommending a deepening of five feet along the “main stem” of the Delaware River, the 102–mile stretch between the mouth of the Delaware Bay and the Philadelphia and Camden harbors.

The Environmental Impact Statement predicted the deepening project would yield substantial economic benefits in the form of reduced costs to shippers. The main stem of the river hosts a concentration of heavy industry, as well as the second largest complex of oil refineries and petrochemical plants in the nation. But, as the EIS observed, “current authorized channel dimensions ... present a constraint to efficient vessel movement.” The report determined that deepening the main navigation channel by five feet would benefit oil tankers, dry bulk shippers, and other large vessels, because it would enable them to service Delaware River ports without needing to “lighter” (transfer a portion of their cargo in the lower Delaware Bay) or “light load” (travel at under-capacity). While the EIS identified potential adverse impacts to water quality, benthic organisms, and fishery resources, it concluded these would be minimal and were outweighed by the project's benefits. Altogether, it forecast that construction and maintenance of a 5–foot deeper channel for five years would require the Corps to dredge 375 million cubic yards of material above the dredging associated with the Philadelphia to the Sea project.

In June 1992, the Corps submitted the Environmental Impact Statement to Congress. That October, Congress passed the Water Resources Development Act, authorizing the deepening project to go forward. See Water Resources Development Act of 1992, Pub. L. No. 102–580, § 101(6), 106 Stat. 4797 (“WRDA”). Congress estimated the project would cost a total of approximately $295 million, with $195 million to be borne by the federal government. Id. In December 1992, the Corps issued a Record of Decision stating the deepening project was “economically justified, in accordance with environmental statutes, and in the public interest.” Not only would “transportation cost savings ... outweigh any adverse effects,” but the project was preferable to all other alternative plans, including a “no action” alternative.

After issuing the Record of Decision, the Corps initiated the Preconstruction, Engineering and Design (“PED”) phase of the project. It consulted federal and state agencies and outside experts, and conducted new environmental analyses. In 1997, the Corps published a Supplemental Environmental Impact Statement (“SEIS”). Its goals were first, to “provide additional information and environmental analysis to address environmental concerns raised during review of the 1992 [EIS]”; and second, to evaluate modifications to the deepening project that had been made since the EIS was published.² Like the EIS, the SEIS recommended the project proceed. At the same time, it reduced its estimate of the amount of material to be dredged over 50 years—for initial project construction and future maintenance—from 375 to 321 million cubic yards. Like the EIS, the SEIS concluded the project would yield considerable economic benefits at a minimal environmental cost. On December 18, 1998, the Corps issued a second Record of Decision stating it had “reviewed and evaluated documents concerning the proposed action, including additional PED phase studies,” and it concluded “[t]he public interest will best be served by implementing the improvements identified and described in the Feasibility Report and the Supplemental Environmental Impact Statement.” The Record of Decision reiterated that “[a]ll practical means to avoid or minimize adverse environmental effects have been incorporated into the recommended plan.”

For the next eleven years, progress on the deepening project stalled. One reason for the delay was that in the mid–2000s, the Delaware River Port Authority (“DRPA”) withdrew the support it had tendered in 1999, leaving the Corps without a local partner.³ In June 2008, the Philadelphia River Port Authority (“PRPA”) came forward and signed a partnership agreement with the Corps. The agencies agreed to share costs: 75% for the Corps, 25% for PRPA.

By late 2008, the Corps was ready to commence dredging the deeper channel. But over a decade had passed...