Delaware Deepening
Editor’s note: This issue is currently dormant but expected to return when the Army Corps of Engineers intends to dig to 50 ft. We will continue monitoring the situation and may take up the issue in the future.
Overview
For over 20 years the Delaware Riverkeeper Network battled against the U.S. Army Corps of Engineers proposal to deepen the Delaware River’s main navigation channel from 40 to 45 feet. After grassroots organizing, advocacy and litigation the Army Corps finally got all of the approvals and funding it needed to start the project in 2010. In 2019 the deepening work is still ongoing, with blasting taking place in the River in areas critical for our federal endangered sturgeon.
The deepening will have long term and enduring environmental and economic impacts on our River and region.
Uneconomical
Three times the Government Accountability Office questioned and/or challenged the claims of economic benefit made by the Army Corps of Engineers for its proposed Delaware River Deepening Project. In May 2011 the Army Corps, without any public awareness or announcement, completed its 8th economic review of the project in which it once again concluded the project was cost beneficial. Having secured a copy of this report as the result of a Freedom of Information Act the Delaware Riverkeeper Network secured an independent review which found basic and fundamental flaws in the analysis done by the Army Corps and which proves their positive economic claims for the project are over-inflated and misrepresent reality. In short, merely correcting for a fundamental and basic economic analysis flaw identified the benefit-cost ratio for the project falls to a mere 1.1 to 1, i.e. at best one can claim 10 cents of net taxpayer benefit for every $1 invested in the Delaware River deepening project. When additional errors are taken into consideration, this figure falls even further, supporting a conclusion that when accurately assessed the Delaware Deepening project yields less than $1 of benefit for taxpayers for every $1 they invest – i.e. it is a net loss for the taxpayers and therefore cannot warrant the nearly $300 million it requires for construction. The new analysis also showed that the ports will continue to get traffic without a deepened channel and that the Army Corps knows this.
Environmentally Deepening is a Big Loser…
When it comes to the environmental and community harms, for years, agencies and environmental experts relying on sound scientific principles have documented the depth and breadth of the threats that deepening the River poses. Those questioning the project include: the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, the Delaware River Basin Commission, the Delaware Department of Natural Resources and Environmental Control, the New Jersey Department of Environmental Protection, the University of Delaware’s Sea Grant Program, and more.
Environmentally, deepening the channel changes the movement and balance of fresh and salt water in a way that will move the salt line up river, threatening drinking water supplies and economically important oyster populations. A multitude of species rely on the Delaware River for spawning; a changing salt line could diminish available freshwater spawning grounds that put at risk species like the Atlantic and shortnose sturgeon already in jeopardy of extinction. A changing salt line also risks the transformation of freshwater marshes, damaging the food and habitat they provide to a variety of fish and wildlife species important both ecologically and economically to the region.
A moving salt line is also a major threat to the oyster populations of the Delaware Estuary. The shifting salt line threatens significant changes, including the reintroduction of parasites and disease to the River’s oysters that in the past decimated these populations. Oysters are vital to the ecology of the Delaware. Oysters act as a vital food source for many of the River’s creatures and are important filters for pollution found in Estuary waters. Delaware Estuary oysters represent an important source of commercial value to the Delaware Estuary and Bay region. The annual harvest of oysters from the Delaware Estuary generates up to $80 million of annual economic benefit for the region, much of this in some of the region’s poorest communities that could not tolerate the loss of jobs, revenue and benefit if oyster populations decline.
Home to the largest spawning population of horseshoe crabs in the world
The Delaware Bay is home to the largest spawning population of horseshoe crabs in the world. Every season, migratory shorebirds descend on Delaware Bay to feast on the eggs of the horseshoe crabs. The deepening project directly threatens the horseshoe crabs and their ability to successfully spawn in key areas in Delaware and, as a result, poses unacceptable threats to migratory birds already in decline because of a lack of needed horseshoe crab eggs. Horseshoe crabs and the migratory birds dependent on them bring a $34 million boost to the region’s ecotourism industry every year. Nationally, horseshoe crabs represent a substantial benefit to the biomedical industry, to which one pint of Horseshoe Crab blood is worth $15,000 for required testing on medical devices, vaccines and intravenous drugs, representing $150 million of annual revenue and social welfare value.
According to experts, the deepening project and associated spoil disposal will introduce heavy metals, pesticides, and other toxins into the River, reintroducing them into the environment and food chain, and putting at risk drinking water aquifers important to communities in New Jersey and Delaware.
Deepening would change water patterns in such a way that it will exacerbate erosion of wetlands. Wetlands are important ecologically, aesthetically and provide important protection during catastrophic storm events. The list of harms goes on.
Already we are hearing noises about deepening the River to 50 feet — so this is a battle that may be dormant for now but is likely to return.
Litigation: Delaware Riverkeeper, et. al. v. US Army Corps of Engineers (2009)
In October 2009, the Army Corps announced a Notice to Proceed with the Delaware Deepening project. In November 2009, the Delaware Riverkeeper Network led four other citizen environmental organizations – National Wildlife Federation, New Jersey Environmental Federation, Delaware Nature Society, Clean Water Action in Pennsylvania – to file suit in Federal District Court in New Jersey against the Delaware deepening proposal. DRN and the groups also filed a motion in Delaware District Court to intervene in and support the legal action brought against the deepening by the State of Delaware, including a motion for a preliminary injunction.
When the Army Corps announced that it was going to proceed with the Deepening project at this time, it was announcing its arbitrary and capricious intent to violate the Administrative Procedures Act, based on non-compliance with no less than 6 federal environmental and community protection laws as well as state environmental and community protection laws.
In addition to being a flagrant violation of state and federal law, the Notice to Proceed and related action by the Army Corps (supported by Pennsylvania) to move forward with the deepening without needed Delaware and New Jersey permits and approvals is a stripping of state environmental protection authority that cannot be allowed to stand.
While DRN fully supported (and indeed advocated for) legal challenges by New Jersey and Delaware, DRN did not believe the states’ legal challenges fully represented all of the legal violations, nor did the states represent all the interests that DRN and its partners bring to bear on the issue. New Jersey’s action was broader than Delaware’s and included more environmental claims to be sure, but neither included the full array of environmental harms that is included in the Delaware Riverkeeper Network litigation, and it is impossible to know how the states will proceed strategically. Further, DRN represents a holistic view of the watershed and the protection of the River and environments, not based on political boundaries, but on their importance to our members and the citizens of the region.
Responding to a motion for a preliminary injunction filed in the Delaware case the Army Corps was allowed to begin one 12 mile stretch of the project with an injunction imposed on the forward movement of the rest of the project. That initial work began on March 1, 2010.
The New Jersey Judge denied a request by the Army Corps to transfer the New Jersey case to Delaware and therefore to allow the consolidation of the two cases. As a result the two District Court cases proceeded on parallel tracks. RN’s attorneys, on behalf of our coalition of clients, filed motions for summary judgment in both district courts.
Delaware Riverkeeper Network, on October 18, 2010, filed a notice of intent to sue regarding the deepening project and ensuring it does not violate the Endangered Species Act with regards to Atlantic Sturgeon, proposed October 6, 2010 for ESA listing by the National Marine Fisheries Service and identified as at particular risk from the deepening project.
On November 4th, Judge Joel Pisano of the federal District of New Jersey denied our motion to stay proceedings pending the Army Corps of Engineers’ compliance with its obligations under the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) to protect Atlantic sturgeon in the Delaware River. We filed this motion after the National Marine Fisheries Service proposed the Atlantic sturgeon for listing under the Endangered Species Act on October 6, 2010. Judge Pisano ruled that our motion to stay was premature because the Corps needs more time to fulfill its obligations under NEPA and the ESA and that granting the stay would cause economic harm to the Port of Philadelphia. He also stated that granting our motion to stay is unnecessary because the Corps is currently under an injunction issued by Judge Robinson of the federal District of Delaware in our litigation in front of that court, preventing the Corps from proceeding with further dredging.
Notably, however, even prior to Judge Pisano’s ruling, the Corps had already canceled its contract process for the next phase of dredging that was intended to begin on December 1, 2010. We understand that the Corps does not intend to begin further work on the Deepening Project until August 2011, and that it is currently working to fulfill its obligations under the ESA to confer with the National Marine Fisheries Service on the Deepening Project’s impacts on Atlantic sturgeon as well as its obligations under NEPA to consider doing a Supplemental Environmental Impact Statement.
On November 17, 2010, Judge Robinson of the federal district court in Delaware issued her decision on the parties’ cross-motions for summary judgment, rationalizing the Army Corps’ decision to proceed with a multi-year, multi-million dollar project to deepen the shipping channel by a full five feet as an action to “maintain” navigation. Her decision found for the Corps on all counts and enabled the Corps to avoid all responsibility for complying with environmental review, particularly review under Delaware state law. Simultaneously she also denied our motion to stay based on the Army Corps’ need to comply with the ESA and NEPA to ensure protection for the proposed endangered Atlantic sturgeon in the River. Judge Robinson lifted her injunction against the Deepening Project’s proceeding in all reaches of the River, giving the Army Corps the green light to proceed with its plans to deepen, straighten, and otherwise permanently degrade and alter the River and its habitats.
DRN and our co-plaintiffs will file an appeal with the Third Circuit to challenge Judge Robinson’s decision, particularly her faulty reading of the Clean Water Act’s definition of the Army Corps’ ability to “maintain” navigation.
On January 13, 2011, Judge Joel A. Pisano, District Judge for the United States District Court District of New Jersey issued his opinion in which he denied the motions for Summary Judgment filed by the State of New Jersey and five environmental organizations, including Delaware Riverkeeper Network. In his decision, Judge Pisano gave the Army Corps deference for their actions and decisions, and used this as a firm basis upon which to rest his opinion. The Delaware Riverkeeper Network does not believe this deference is factually or legally warranted and that the judge reached a flawed conclusion.
February 1, 2011, the Delaware Riverkeeper Network, the Delaware Riverkeeper, New Jersey Environmental Federation, Clean Water Action, Delaware Nature Society and National Wildlife Federation filed an appeal to the Third Circuit Court of Appeals of the ruling by Judge Sue Robinson of the U.S. District Court in the District of Delaware.
February 16, 2011, the Delaware Riverkeeper Network, the Delaware Riverkeeper, New Jersey Environmental Federation, Clean Water Action, Delaware Nature Society and National Wildlife Federation filed their appeal to the Third Circuit Court of Appeals of the January 13, 2011 ruling by Judge Joel A. Pisano, U.S. District Court in the District of New Jersey regarding the Delaware deepening project. This appeal is the second one filed by the five environmental organizations. The first appeal was filed on February 1, 2011 and challenged the ruling by Judge Sue Robinson of the U.S. District Court in the District of Delaware.
On January 18th, 2012, oral arguments before the Third Circuit Court of Appeals took place.
In the end, the courts sided with the Army Corps of Engineers and have allowed the project to proceed without further environmental assessment or consideration.