Delaware Dept. of Natural Resources and Environmental Control v. U.S. Army Corps of Engineers
Delaware and New Jersey brought action pursuant to the APA to challenge a decision made by the US Army Corp of Engineers to proceed with a dredging project to deepen the main navigation channel of the Delaware River without obtaining requisite approval pursuant to the CWA, CAA, CZMA, and Delaware code. The court found that the project to deepen the main navigation channel of the Delaware River from 40 feet to 56 feet, in order to be consistent with other American ports, was properly viewed as dredging designated to “maintain” current level of “navigation” into an area’s ports, and that therefore the “navigation exception” under the CWA exempted the Army Corp of Engineers from regulation under the CWA and affiliated state programs. The Court also refused to stay the Army Corp’s dredging project based on a proposal of the National Marine Fisheries Service (NMFS) to list Atlantic surgeon, which is native to the Delaware River channel, as endangered under the Endangered Species Act (ESA). Since the proposal was just made, and the Corps were conferring with NMFS as to what their obligations might be under the ESA, the court found that a stay was not appropriate.
The Third Circuit affirmed the District Court’s decision, holding that the Corps had provided the necessary “hard look” at the costs and benefits of the project, and that the Corps was relieved of the federal permitting requirement for deepening the main channel of the Delaware river as well as from the water certification requirement under the CWA by virtue of the “congressionally authorized” exception.
Citation: Delaware Dept. of Natural Resources and Environmental Control v. U.S. Army Corps of Engineers 751 F.Supp.2d (D. Del. 2010); aff’d 685 F.3d 259 (3d 2012).
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