Third Circuit: Corps can continue plans to deepen river

Jessica M. Karmasek Jul. 13, 2012, 11:35am


PHILADELPHIA (Legal Newsline) - A federal appeals court ruled last week that the U.S. Army Corps of Engineers can continue with plans to deepen the main channel of the Delaware River.

At issue is whether the defendant Corps can deepen the river by 5 feet. It is argued that doing so would enable river ports to be more economically competitive, while complying with environmental protection statutes.

The project, itself, goes back decades.

In 1992, Congress authorized the project and appropriated $195 million. It continued to support the effort with regular appropriations for the next 20 years.

Commencement was delayed for various reasons. Finally, in the fall of 2009, the Corps was ready to proceed.

Then, in October 2009, the New Jersey Department of Environmental Protection and Delaware Department of Natural Resources and Environmental Control filed suits in the district courts of New Jersey and Delaware to enjoin the Corps from dredging the deeper channel.

Both alleged violations of the National Environmental Policy Act, or NEPA; the Clean Water Act, or CWA; and the Coastal Zone Management Act, or CZMA.

Each district court granted summary judgment to the Corps, holding no environmental statutes would be breached.

In its July 3 ruling, the U.S. Court of Appeals for the Third Circuit affirmed.

"The Corps complied with the procedural requirements prescribed by NEPA and its corresponding regulations because it engaged in a transparent and inclusive process, soliciting the views of federal and state agencies as well as of members of the public, and published an exhaustive, 179-page Environmental Assessment that reviewed the project's risks, responded to concerns raised, and came to the reasonable conclusion the project should proceed," Circuit Judge Anthony Scirica wrote.

The court noted that neither Council on Environmental Quality nor Corps regulations detail the process an agency should follow when publishing an environmental assessment.

There are no notice requirements, pre-circulation requirements or instructions about the public comments process.

In fact, CEQ regulations only provide that agencies "shall involve... the public, to the extent practicable, in preparing (environmental) (assessments)."

The Third Circuit said this is different in the case of environmental impact statements, for which CEQ and Corps regulations are detailed.

"The report addressed the substance of the most important issues raised in the comments -- questions about sediment quality, water quality, air quality, biological resources and the impacts of the Athos oil spill," Scirica wrote.

"Each environmental risk, the report concluded, was minimal and could be mitigated through appropriate implementation measures.

"The Corps also responded in great detail to a comment filed by the New Jersey Department of Environmental Protection on Jan. 14, 2009, sending the agency a letter on April 24, 2009 that reiterated the findings of the EA and expounded on its conclusions."

Overall, the Third Circuit said the Corps' decision in 2009 to proceed with the project was "consistent" with the NEPA, the CWA and the CZMA.

"For over 20 years, the Corps has devoted substantial efforts to evaluating the proposed five foot deepening project for the Delaware River. It has published three comprehensive NEPA reports, received multiple rounds of public comments, and had immeasurable communications with the relevant state and federal agencies," Scirica concluded in the court's 65-page opinion.

New Jersey Attorney General Jeffrey Chiesa's office argued for the state Department of Environmental Protection in January.

Pennsylvania Attorney General Linda Kelly's office also got involved, arguing for defendant Philadelphia Regional Port Authority.

From Legal Newsline: Reach Jessica Karmasek by email at

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