Appeals-court panel removes last challenge to deepening of the Delaware

The cutting blade of a dredge is lifted for maintenance of the motor system on the Delaware, 1.5 miles east of Delaware City, Del. DAVID M WARREN / Staff Photographer
The cutting blade of a dredge is lifted for maintenance of the motor system on the Delaware, 1.5 miles east of Delaware City, Del. DAVID M WARREN / Staff Photographer
Posted: July 05, 2012

A federal court Tuesday removed the last pending legal challenge to continued deepening of the Delaware River navigation channel between Philadelphia and Camden and the Atlantic Ocean.

The U.S. Court of Appeals for the Third Circuit upheld earlier rulings by federal judges in Trenton and Wilmington, who rejected arguments by the States of New Jersey and Delaware and some environmental groups to stop the deepening of the channel from 40 to 45 feet that began in March 2010.

Delaware now supports the project, to promote greater commerce and bigger ships, although a coalition of environmental groups and New Jersey remain staunchly opposed.

"For over 20 years, the [U.S. Army] Corps [of Engineers] has devoted substantial efforts to evaluating the proposed five-foot deepening project for the Delaware River," Circuit Judge Anthony J. Scirica wrote in a 67-page opinion. In the decades since Congress directed the Corps to investigate deepening the main Delaware channel, the Corps "has published three comprehensive" environmental policy reports, "received multiple rounds of public comments, and had immeasurable communications with the relevant state and federal agencies."

The Corps' decision in 2009 to proceed "was consistent" with national environmental policy and clean-water and coastal-zone management laws, the court ruled.

Proponents of the project say a deeper channel would accommodate the bigger ships expected to come to the East Coast from Asia once the Panama Canal is expanded in 2014, and would put ports on the Delaware in line with other major East Coast ports.

On Tuesday, environmental opponents and the Christie administration expressed disappointment in the Third Circuit's ruling.

"An injustice has been perpetrated on all of the communities that depend upon the Delaware River for clean water, healthy fish, and jobs," said Delaware Riverkeeper Maya van Rossum. "Sadly, the judges drew conclusions that were simply unsupported by the facts. … A travesty of justice of this magnitude cannot be allowed to stand, and so we will forge forth to protect the river for the benefit of all, not just a politically connected few."

Said Jeff Tittel, director of the Sierra Club of New Jersey: "We are deeply troubled by this court decision because instead of reining in a rogue agency like the Army Corps, it allows them to go forward with an environmentally damaging project that has bypassed state and federal regulations. We believe Congress and the president should stop this project by taking away its funding."

Circuit Judges Scirica, Julio M. Fuentes, and Thomas M. Hardiman upheld the earlier rulings of U.S. District Judges Joel A. Pisano in Trenton and Sue L. Robinson in Wilmington.

The deepening has stalled over the years for various reasons, including the fact that the original local sponsor, the Delaware River Port Authority, withdrew its support, leaving the Corps without a local partner until the Philadelphia Regional Port Authority — and the State of Pennsylvania — came forward in 2008, the court said.

In addition, Delaware "sat" on the Corps' permit application for eight years.

"After studying commerce patterns in the Delaware River for two decades and publishing three extensive reports in 1992, 1997, and 2009, the Corps concluded a five-foot deepening project was necessary to preserve the current flow of navigation in the Delaware River," Scirica wrote.

In a statement Tuesday, New Jersey said the deepening "will result in millions of tons of sediments" being dumped in confined disposal facilities along ecologically sensitive creeks and wetlands in Gloucester and Salem Counties.

"Gov. Christie and I have remained steadfast in our position that the Army Corps must be compelled to openly and thoroughly assess the impacts that deepening the shipping channel would have on the ecology of the river, including impacts to South Jersey's ecologically sensitive wetlands," said Department of Environmental Protection Commissioner Bob Martin. "The administration will review its options."

The port of New York and northern New Jersey is already at 45 feet — and being deepened to 50 feet — without opposition.

Thus far, 11 miles of the river south of the Delaware Memorial Bridge and five miles off northern Delaware have been deepened. Beginning in August or September, 10 more miles will be dredged south of the Walt Whitman Bridge to Tinicum Island, and after that 16 miles south of the Chesapeake & Delaware Canal, said Ed Voigt, the Corps' chief of public and legislative affairs.

Completion of the $300 million project hinges on securing federal funding. Pennsylvania has spent $40 million toward the deepening, and the Corps just under $50 million, said Lisa Magee, the Philadelphia Regional Port Authority's director of special projects.

President Obama's budget for the next fiscal year includes $31 million for the project.

"It's on track, but we still have to make sure it gets done," said Sen. Robert P. Casey, (D., Pa.). "The Energy and Water Appropriations subcommittee included the full $31 million. The overall appropriations committee approved the bill in late April.

“Now, all the appropriations bills in the Senate await further action, I'd say in the fall," Casey said. "There's work to do, but I think we will get there. Keep the pressure on, keep the momentum, until we are done."

Contact Linda Loyd at 215 854 2831 or lloyd@phillynews.com

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