State of Delaware v. US Army Corps of Engineers, Civ. No. 09-821-SLR.

• Court: United States District Courts. 3th Circuit. United States District Court (Delaware)
• Writing for the Court: SUE L. ROBINSON
• Citation: 681 F. Supp.2d 546
• 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.
• Decision Date: 29 January 2010
• Docket Number: Civ. No. 09-821-SLR.

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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

[681 F. Supp.2d 547]

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.

January 27, 2010.

As Amended January 29, 2010.

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Joseph R. Biden, III, Attorney General, Jennifer D. Olivia, 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 Murphy, Deputy Attorney General of Delaware Department of Justice, Wilmington, DE, for Plaintiff-Intervenor. Of Counsel: Anne Milgram, Attorney General, Rachel 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, NJ.

Mary A. Jacobson, Esquire of the Mid-Atlantic Environmental Law Center, Wilmington, DE, for Plaintiffs-Intervenors. Of Counsel: Elizabeth K. Brown, Esquire of the Delaware Riverkeeper Network, Bristol, PA.

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,

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Attorney of the United States Department of Justice, Washington, DC

Beth Moskow-Schnoll, Esquire and Sean J. Bellow, Esquire of Ballard, Spahr, Andrews & Ingersoll, LLP, Wilmington, DE. Of Counsel: Barry N. Kramer, Deputy Attorney General of the Pennsylvania Office of the Attorney General.

Peter C. Hughes, Esquire of Dilworth Paxson LLP, Wilmington, DE, for Senator Arlen Specter, Amicus.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

This action follows the decision of the United States Army Corps of Engineers ("the Corps") to proceed with the deepening of the Delaware River pursuant to its Delaware River Main Stem and Channel Deepening Project ("the Deepening Project"). According to the Deepening Project, the Corps will dredge the Delaware River to deepen the channel from its established depth of forty feet to a depth of forty-five feet from the mouth of the Delaware Bay to the ports of Philadelphia and Camden. In its complaint, the Delaware Department of Natural Resources and Environmental Control ("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 Clean Water Act ("CWA"), the Clean Air Act ("CAA"), the Coastal Zone Management Act ("CZMA"), as well as Title 7, Chapters 72 (Wetlands), 66 (Water Quality) and 60 (Subaqueous Lands) of the Delaware Code. (D.I. 1) DNREC seeks to enjoin the Corps from proceeding with the Deepening Project until the Corps demonstrates its compliance with all applicable state and federal requirements. (Id.)

Currently pending before the court is DNREC's motion for a preliminary injunction, filed on November 2, 2009. (D.I. 3) A hearing addressing DNREC's motion was held on December 8, 2009 and the parties submitted post-hearing briefs.¹ 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, the court denies in part and grants in part DNREC's motion to enjoin the Deepening Project.

II. BACKGROUND

A. Project Feasibility and Congressional Authorization

The combined ports of the Delaware River currently support an estimated 75,000 jobs, generate billions in terms of economic revenue and payroll wages, and contribute more than $150 million in state and local taxes. (D.I. 34, ex. B at ¶ 8) In an effort to sustain these vital economic contributions, the Corps ensures that the ports remain active by maintaining the Delaware River's main navigation channel ("the channel") at a sufficient depth to allow vessel navigation. Without sufficient channel depth, larger vessels would divert to other ports on the east coast, thus threatening the market share of the Delaware River ports.² The Corps has consistently

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maintained the channel at a depth of forty feet since World War II.³ See U.S. ARMY CORPS OF ENGINEERS, PHILADELPHIA DISTRICT, DELAWARE RIVER MAIN STEM & CHANNEL DEEPENING PROJECT, available at http://www.nap.usace.army.mil/cenap-pl/ drmcdp/drmc.htm (last visited January 19, 2010)

Mindful of the continual evolution of ship design, which favors deeper drafts,⁴ Congress directed the Corps to explore whether it was in the federal interest to deepen the channel in 1983. Id. After years of study, the Corps submitted to Congress a Final Interim Feasibility Report and Environmental Impact Study ("the EIS").⁵ (D.I. 4, ex. A) The EIS concluded that a depth of forty-five feet was necessary to accommodate the current trend of vessel drafts. (Id.) The Corps supported this conclusion with its findings that the Deepening Project was environmentally sound, economically justified and technically advisable. (Id.) In 1992, pursuant to the recommendations made in the EIS, Congress authorized the Corps to deepen a 102-mile segment⁶ of the channel to forty-five feet. See Water Res. Dev. Act of 1992, Pub. L. No. 102-580, § 101(6), 106 Stat. 4797, 4802.⁷ To this end, Congress has appropriated significant funds towards the project's estimated total cost of $300 million.⁸

The Corps addressed certain residual concerns raised by the EIS and subsequent environmental investigations in its 1997 Supplemental Environmental Impact Statement ("the SEIS"). (D.I. 33, ex. 2) In 1998, the Corps issued its Limited Reevaluation Report, which reflected adjusted costs and benefits for the Deepening Project. After vetting the SEIS through a notice and comment period, the Corps signed a Record of Decision ("the ROD")

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in December 1998. See U.S. Army Corps of Engineers, Philadelphia District, Delaware River Main Channel Deepening Project, available at http://www.nap.usace. army.mil/cenap-pl/drmcdp/overview.html (last visited January 19, 2010).⁹

B. Delaware Subaqueous Land and Wetlands Permits

In addition to this federal oversight, the Deepening Project was subject to various state regulatory regimes, including Delaware's Subaqueous Lands Act, 7 Del. C. Ch. 72, and Wetlands Act, 7 Del. C. Ch. 66.¹⁰ Consistent with these obligations, the Corps submitted an application to DNREC for a subaqueous lands and wetlands permit in January 2001. (D.I. 33, Decl. of Pasquale at ¶ 8) In October 2001, DNREC provided notice that the application was complete. (Id.) DNREC subsequently hired Timothy Bureau ("Bureau"), an independent environmental consultant, to preside over a two-day public hearing regarding the application on December 4 and 5, 2001. (Id.) At the conclusion of the public hearing, DNREC provided a notice and comment period to generate discourse between the public and the Corps, (Id.)

In June 2002, the General Accounting Office ("GAO") issued an audit of the Deepening Project, noting that a number of "material errors" plagued the Corps' economic analysis. U.S. GEN. ACCOUNTING OFFICE, DELAWARE RIVER DEEPENING PROJECT: COMPREHENSIVE REANALYSIS NEEDED, available at http://www.gao.gov/products/ GAO-02-604 (last accessed January 19, 2010). The GAO concluded by recommending that the Corps comprehensively reanalyze the Deepening Project. (Id.) The Corps immediately requested that DNREC suspend the permit review process so that the Corps could address the indicated errors; it submitted an economic reanalysis¹¹ to DNREC on December 20, 2002. (D.I. 33, Decl. of Pasquale at ¶ 8)

After consideration of the information generated by the notice and comment period, Bureau reported his findings and recommendations to DNREC in December 2003. (D.I. 4, ex. G) Bureau recommended the denial of the Corps' application, citing both to 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." (Id. at 125) Bureau concluded with a recommendation that DNREC provide the Corps with the opportunity to modify its application to address these concerns, (Id. at 127)

With no final decision from DNREC, on December 17, 2008, the Corps publically 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. (D.I. 4, ex. I) The then-DNREC Secretary John A. Hughes notified the Corps that, while the EA addressed certain of the concerns raised in Bureau's report, DNREC would not provide technical commentary because of the short comment window. (Id., ex. J) 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. (Id.) Secretary Hughes concluded by proffering

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a list of additional information that the Corps...