State Dep't of Natural Res. v. United States Army Corps of Engineers (usacoe)

• Citation: 751 F.Supp.2d 715
• Decision Date: 16 November 2010
• Docket Number: Civ. No. 09–821–SLR.
• Parties: State of DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, Plaintiff,State of New Jersey, Plaintiff–Intervenor,Delaware Riverkeeper Network, the Delaware Riverkeeper, Delaware Nature Society, National Wildlife Federation, New Jersey Environmental Federation, Clean Water Action, Plaintiffs–Intervenors,v.UNITED STATES ARMY CORPS OF ENGINEERS (USACOE), the Honorable John McHugh, Secretary of the Army, in his official capacity, the Honorable Jo–Ellen Darcy, Assistant Secretary of the Army, in her official capacity, Lt. Gen. Robert L. Van Antwerp, Jr., Commander, USACOE, in his official capacity and Lt. Col. Thomas Tickner, Commander, USACOE, in his official capacity, Defendants,Philadelphia Regional Port Authority, Defendant–Intervenor.
• Court: United States District Courts. 3th Circuit. United States District Court (Delaware)

751 F.Supp.2d 715

State of DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, Plaintiff,State of New Jersey, Plaintiff–Intervenor,Delaware Riverkeeper Network, the Delaware Riverkeeper, Delaware Nature Society, National Wildlife Federation, New Jersey Environmental Federation, Clean Water Action, Plaintiffs–Intervenors,

v.UNITED STATES ARMY CORPS OF ENGINEERS (USACOE), the Honorable John McHugh, Secretary of the Army, in his official capacity, the Honorable Jo–Ellen Darcy, Assistant Secretary of the Army, in her official capacity, Lt. Gen. Robert L. Van Antwerp, Jr., Commander, USACOE, in his official capacity and Lt. Col. Thomas Tickner, Commander, USACOE, in his official capacity, Defendants,Philadelphia Regional Port Authority, Defendant–Intervenor.

Civ. No. 09–821–SLR.

United States District Court, D. Delaware.

Nov. 16, 2010.

Joseph R. Biden, III, Attorney General, Jennifer D. Oliva, Deputy Attorney General, Kevin P. Maloney, Deputy Attorney General and Devera Breeding Scott, Deputy Attorney General of the Delaware Department of Justice, Wilmington, DE, for Plaintiff.Allison E. Reardon, Deputy Attorney General and Patricia Davis Oliva, Deputy Attorney General of Delaware Department of Justice, Wilmington, DE, for Plaintiff-Intervenor. Of Counsel: Anne Milgram, Attorney General, Rachel J. Horowitz, Deputy Attorney General, Eileen P. Kelley, Deputy Attorney General, Kristen D. Heinzerling, Deputy Attorney General and Lauren J. Trasferini, Deputy Attorney General of the New Jersey Office of the Attorney General, Trenton, New Jersey.Mary A. Jacobson, Esquire of the Mid–Atlantic Environmental Law Center, Wilmington, DE, for Plaintiffs-Intervenors. Of Counsel: Elizabeth Koniers Brown, Esquire of the Delaware Riverkeeper Network, Bristol, Pennsylvania.Patricia C. Hannigan, Assistant United States Attorney of the Office of the United States Attorney, Wilmington, DE, for Defendants. Of Counsel: Ignacia S. Moreno, Assistant Attorney General, Kent E. Hanson, Attorney, and Kristofor R. Swanson, Attorney of the United States Department of Justice, Washington, District of Columbia.Beth Moskow–Schnoll, Esquire and Sean J. Bellow, Esquire of Ballard, Spahr, Andrews & Ingersoll, LLP, Wilmington, DE, of Counsel: Thomas W. Corbett, Jr., Attorney General for the Commonwealth of Pennsylvania; Barry N. Kramer, Deputy Attorney General of the Pennsylvania Office of the Attorney General; Glenn L. Unterberger, Esquire, Harry Weiss, Esquire and Marlene S. Gomez, Esquire of Ballard Spahr LLP, Philadelphia, Pennsylvania; and Barry P. Steinberg, Esquire of Kutak Rock LLP, Washington, D.C.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.I. INTRODUCTION

Plaintiff Delaware Department of Natural Resources and Environmental Control (“DNREC”) brought this action pursuant to Administrative Procedure Act (“APA”) section 706, 5 U.S.C. § 706, to challenge decisions made by the U.S. Army Corps of Engineers (“Corps”) pursuant to the Clean Water Act (“CWA”), the Clean Air Act (“CAA”), and the Coastal Zone Management Act (“CZMA”) in connection with a project to deepen the main navigation channel of the Delaware River from 40 feet to 45 feet (“the Deepening Project”). In its complaint, DNREC alleges that the Corps' decision to proceed without obtaining the requisite federal and state approval violates numerous provisions of the federal and state regulatory process governing such activities including, inter alia, the CWA, the CAA, the CZMA, as well as Title 7, Chapters 72 (Wetlands), 66 (Water Quality) and 60 (Subaqueous Lands) of the Delaware Code. (D.I. 1) The court has previously granted in part and denied in part DNREC's motion for a preliminary injunction. (D.I. 63) DNREC now moves for summary judgment seeking final resolution of its claims. (D.I. 85) The State of New Jersey Department of Environmental Protection (“NJDEP”), which has intervened as a plaintiff, joins in DNREC's motion. Also pending before the court is a motion for summary judgment filed by plaintiff-intervenors Clean Water Action, Delaware Nature Society, Delaware Riverkeeper Network, National Wildlife Federation, New Jersey Environmental Federation, and The Delaware Riverkeeper (hereinafter, “environmental plaintiffs”) (D.I. 89), as well as defendant-intervenor the Philadelphia Regional Port Authority's (“PRPA's”) cross-motion for summary judgment (D.I. 94). The court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1346 and 2201. Venue is proper pursuant to 28 U.S.C. § 1391. For the following reasons.

II. BACKGROUNDA. Timeline of Events

The court incorporates by reference its prior opinion discussing in detail the background of the present action, and will reiterate those facts most critical to the motions at bar herein.¹ As discussed by the court previously, the Corps consistently maintains the Delaware River channel at a depth of 40 feet. Due to the increasing size of modern vessels, which favors deeper drafts, Congress directed the Corps in 1983 to explore whether it was in the federal interest to deepen the Delaware River channel. After years of study, the Corps submitted a Final Interim Feasibility Report and Environmental Impact Study (“the EIS”) ² in 1992, which concluded that a depth of 45 feet was necessary to accommodate the current trend of vessel drafts. The Corps supported this conclusion with its findings that the Deepening Project was environmentally sound, economically justified and technically advisable. In 1992, pursuant to the recommendations made in the EIS, Congress authorized the Corps to deepen a 102–mile segment of the channel to 45 feet, and has appropriated significant funds towards the project's estimated total cost of $300 million.

In December 1996, for purposes of compliance with the CZMA,³ the Corps provided a consistency determination for the Deepening Project to both DNREC and the New Jersey Department of Environmental Protection (“NJDEP”). After identifying certain concerns, which the Corps agreed to address in the implementation of the Deepening Project, DNREC concurred with the Corps' consistency determination. NJDEP likewise concurred after it signed a memorandum of understanding with the Corps.

The Corps addressed certain residual concerns raised by the EIS and subsequent environmental investigations in its 1997 Supplemental Environmental Impact Statement (“the SEIS”). In 1998, the Corps issued its Limited Reevaluation Report, which reflected adjusted costs for, and benefits of, the Deepening Project. After vetting the SEIS through a notice and comment period, the Corps signed a Record of Decision (“the ROD”) in December 1998.

In January 2001, the Corps then submitted its application to DNREC for a subaqueous lands and wetlands permit pursuant to Delaware's Subaqueous Lands Act, 7 Del. C. Ch. 72, and Wetlands Act, 7 Del. C. Ch. 66. In October 2001, DNREC provided notice that the application was complete. DNREC subsequently hired Timothy Bureau, an independent environmental consultant (“the consultant”), to preside over a two-day public hearing regarding the application, which hearing was held on December 4 and 5, 2001. DNREC subsequently provided a comment period to generate discourse between the public and the Corps.

In 2002, NJDEP informed the Corps that it was “revoking” its concurrence due to alleged substantial changes that had occurred in the previous five years. In June 2002, the General Accounting Office of DNREC (“the GAO”) issued an audit of the Deepening Project. The Corps requested that DNREC suspend the permit review process so that the Corps could address the indicated errors; it submitted an economic reanalysis to DNREC on December 20, 2002. In December 2003, the consultant issued findings and recommendations to DNREC, wherein he recommended the denial of the Corps' 2001 application (“the 2003 Report”). The consultant cited both a lack of documentation tending to demonstrate that the “adverse effects [of the Deepening Project] have been minimized” and a failure to meet “the regulatory standards and requirements necessary to approve the project as proposed” by the Corps. The consultant concluded with a recommendation that DNREC provide the Corps with the opportunity to modify its application to address these concerns.

No action on the 2001 application was taken by DNREC subsequent to the 2003 Report. Five years later, in December 2008, the Corps publicly noticed an Environmental Assessment (“the EA”) containing a review of the information generated since the 1997 SEIS, and provided roughly one month for public comment.⁴ The then-DNREC Secretary John A. Hughes notified the Corps that, while the EA addressed certain of the concerns raised in the 2003 Report, DNREC would not provide technical commentary because of the short comment window. Rather, Secretary Hughes proposed that DNREC would consider the contents of the EA within the context of a new subaqueous lands and wetlands permit and a supplemental consistency certification. Secretary Hughes concluded by proffering a list of additional information that the Corps would need to submit to complete its submission.

The Corps took several significant steps in April 2009. During that month, the Corps issued its final EA (hereinafter, the “2009 EA”), concluding that any changes to the Deepening Project would have “no significant adverse effects” over those previously enumerated in the EIS, SEIS, and ROD. Additionally, the Corps sent the 1997 SEIS and 2009 EA to two members of Congress. On April 30, 2009, the Assistant Secretary of the Army for Civil Works, John Paul Wooley, Jr., issued a Memorandum of Record finding that “the State of Delaware's refusal to provide the subject State permit in a timely and responsible manner would interfere with navigation for the ‘upstream states,’ ” and “has impaired the Secretary of the Army's authority to maintain navigation as specifically directed by Congress in Public Law 102–580,...