Judge Issues Ruling In Delaware River Dredging Controversy

By David Murray
IDR Staff Writer

In the first week of the New Year attorneys for the Corps of Engineers asked Judge Sue Robinson of the United States District Court for Delaware to relax her December hold temporarily blocking any dredging of the Delaware River to 45 feet along a 100-mile stretch.

On January 27 Judge Robinson ruled against Delaware’s injunction clearing the way for the Corps to proceed with deepening the channel to 45 feet.

Regular maintenance dredging to 40 feet is already underway. The project to deepen the river to 45 feet now estimated to cost $300 million was originally authorized in 1992 and repeatedly funded by Congress. The Philadelphia Regional Port Authority wants the deeper channel so it can compete with other East Coast ports for larger ships.

Since Robinson issued her hold order the Corps has submitted its final report concluding that the project would comply with requirements of the Environmental Protection Agency under the Clean Air Act. The Corps completed an earlier environmental review in 1997 and an economic analysis in 2002 but Delaware argued that conditions have changed since those reports.

Robinson’s remarks during deliberations were critical of Delaware for delaying action on the Corps permit requests. At one point she remarked “I don’t think anyone can dispute as a matter of fact that the river is in danger of losing a substantial market if [the channel] isn’t deepened at some point.”

Controversy over the proposed Delaware River deepening has dragged on for years inspiring lawsuits by many parties along the way both for and against the project. The issue has pitted Pennsylvania which is pro-deepening against New Jersey and Delaware which oppose the project for different reasons.

In November Pennsylvania Sen. Arlen Specter asked for 15 minutes to testify orally before Judge Robinson on December 8 in favor of the deepening but she denied his request although she did allow him to submit written evidence.

Specter has supported the deepening project since the 1980s and helped secure tens of millions of dollars in federal funding for it. He has led recent efforts to argue that federal supremacy over navigable channels takes precedence over states’ rights.

Toxic Sediment?
Environmental groups say they are concerned about the project’s effect on horseshoe crabs and giant sturgeon and species that depend on them and their eggs for food. They oppose the dredging because they claim the dredging will stir up toxic heavy metals and other chemicals. On November 19 five environmental groups filed suit the same day in two venues: as an intervention in support of Delaware’s suit and separately in New Jersey Federal District Court.

The groups included the Delaware Riverkeeper Network the National Wildlife Federation the New Jersey Environmental Federation Clean Water Action and the Delaware Nature Society.

Proponents of the channel deepening refute claims of environmental damage. Pennsylvania Gov. Ed Rendell went so far as to call the anti-dredging lawsuits a “hoax.” On December 7 he told the Caesar Rodney Institute a free-market blog in Delaware “What makes these suits a hoax is that we do dredging every year. We do maintenance dredging. When we’re allowed a 40-foot depth silt accumulates and you have to dredge.”

In a January 5 editorial in NJ.com John Estey chairman of the Philadelphia Regional Port Authority also noted that regular maintenance dredging takes place every year. He said opponents “offer no scientific evidence” of lurking toxins in deeper mud instead attempting to “sow confusion with unsubstantiated allegations while failing to raise similar objections to other deepening projects.”

Storing Dredged Materials
New Jersey’s objections are based on where the dredged materials would be stored. Jeff Tittel director of the New Jersey Sierra Club told NJ.com that 80 percent of the sediment would be dumped on New Jersey’s side of the river albeit on property already owned by the Corps. In November New Jersey Gov. Jon Corzine asked the state’s attorney general to file its own lawsuit seeking to enjoin the deepening. That suit is pending in federal district court along with another one filed by five environmental groups.
Deepening the channel would generate about 33 million cubic yards of dredged material in the first four years and about six million cubic yards per year in maintenance dredging. Ten million cubic yards will go to fill an abandoned mine in Hazleton Pennsylvania. Other material will be sent to Fort Mifflin near Philadelphia. Gov. Rendell has said the material is safe and that if New Jersey and Delaware refuse it Pennsylvania would take it all.

According to Delaware Riverkeepers the Delaware sites where the Corps plans to use dredged material for beach restoration include Broadkill Beach Port Mahon Rehoboth and Dewey beaches and Kelly Island. Port Mahon is home to a nature conservancy.

Many local municipalities have issued resolutions of support for the deepening though they have no legal standing or force. On December 20 for example New Castle County in Delaware issued a resolution supporting the project and noting that the deepening could bring it up to 6000 jobs and $500 million a year.

Economic Benefits
Business groups strongly champion the project as keeping the port competitive and providing needed jobs. The channel’s existing 40-foot depth cannot accommodate larger ocean-going ships. All the other major East Coast ports with which Philadelphia competes for cargoes have depths of greater than 40 feet.

The ports want to have the channel deepened in time for the opening of the expanded Panama Canal in 2014 which will accommodate a larger class of ship. Ports along the East Coast and Gulf Coast have been building improvements in hopes of attracting these larger vessels.

“I am a strong advocate of dredging. It’s essential for us in the Port of Philadelphia southern New Jersey and the Port of Wilmington to remain competitive” Rendell said. “We need to dredge to at least 45 feet. If we do so we could add 10000 to 40000 good-paying longshoreman jobs.”
In 2002 the Corps released a federally required analysis concluding that the project is economically justified yielding a net benefit of $1.18 for every dollar spent.

Major General Robert Griffin told the Environment News Service “The reanalysis has been thoroughly reviewed by an eternal independent panel. That panel determined the reanalysis to be based on sound economics. I would also add that this reanalysis has been subjected to a level of scrutiny and independent review that is unprecedented on a Corps project.”

But a 2002 Government Accountability Office (GAO) review said that the Corps overstated benefits and understated costs. Another GAO review of the project’s costs and benefits is due in March 2010.

Delaware Delayed Permits
The Corps’ original permit request was filed in 2001 and Delaware officials recommended against it in 2003. The permit is required only for a 29-mile stretch of the 100-mile project for part of the river entirely inside Delaware. But it wasn’t until July 2009 that the state finally denied a permit to the Corps. The state claimed that the Corps had not provided requested information and had made significant changes since its original application in 2001.

In October the Corps notified Delaware officials that it would begin dredging without state permits. During testimony a Justice Department attorney invoked a federal law that she said allows the Corps to trump state permit requirements to maintain federal channels if a state is being uncooperative.

In remarks during deliberations Robinson said Delaware had deliberately dragged its feet for five years on permit requests from the Corps. She questioned whether the delays thwarted the clear intent of Congress which has repeatedly funded the deepening.

Delaware admitted in its final filing that it “should have more timely denied” the Corps’ permit request according to the CourierPost- Online and said its decision on any new permit applications would be speeded up. Delaware Department of Natural Resources and Environmental Control Secretary Collin O’Mara told The Delaware News Journal that he would stick to a review schedule that would result in a permit in 8.5 months.

Timing Could Be Critical
That may not be enough for the Corps which was hoping to begin work in early 2010. That announcement provoked environmentalists anew. David Conrad a water specialist with the National Wildlife Federation told the News Journal that the environmental impact statement alone would take at lest nine months to prepare.

But Dennis Rochford director of the Maritime Exchange for the Delaware River and Bay told delawareonline.com “The sense of urgency is you’ve got to get the dredging started as soon as possible in this marketplace. The economy is tough and these carriers are making decisions about whether or not they want to stay at this port or go to another port in the short term as well as the long term.”
(See related article on page 22.)