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Appeals Court Gives Delaware Dredging Go-Ahead

A federal appeals court in Pennsylvania rejected appeals by New Jersey and ruled on July 3 that the U.S Army Corps of Engineers can proceed to deepen a 102-mile stretch of the Delaware River from the mouth of the bay to Camden, N.J. In a 67-page ruling, the U.S. Court of Appeals refused New Jersey’s demand for new studies to protect the environment.

The administration of New Jersey Governor Chris Christie said it would “review its options” in the ruling’s wake. Christie and his Department of Environmental Protection (DEP) oppose the Corps’ plans to deepen the Delaware River channel from 40 to 45 feet.

“Governor Christie and I have remained steadfast in our position that the Army Corps of Engineers 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 New Jersey Department of Environmental Protection Commissioner Bob Martin.

The court affirmed lower court rulings, saying the Corps had complied with federal environmental laws in moving ahead with the much delayed project, which had been challenged by the state of New Jersey and environmental groups. The Corps found that the project would likely affect no more than 57 short-nose sturgeon, a Delaware River fish species that environmentalists were concerned about.

The concern is that the fish will be entrained in the cutting tools of the dredges in the course of the deepening. The Corps has addressed this problem by creating dredging windows, limiting times of year that dredging can be conducted.

The dredging plan has been contentious. Environmentalists claim toxins buried in sediment will spread throughout the river, while dredging proponents view the step as crucial to bringing larger post-Panamax vessels to the Philadelphia region.

The project’s critics have recently accused the Corps of anticipating a favorable ruling by secretly deepening the channel under the guise of routine maintenance dredging, which continued to be allowed during appeals of the deepening project.

The Delaware River project, first authorized by Congress in 1992, will result in more than 232 million cubic yards of sediment placed in confined disposal facilities along creeks and wetlands in Gloucester and Sale counties that the state says are environmentally sensitive. The DEP says its tests show that the sediments contain elevated levels of PCBs, metals, and other contaminants.

The state argued that the Corps relied on outdated data from sediment taken from maintenance dredging, and did not take samples from areas likely to be the most contaminated; but the three-judge panel rejected that argument.

“For over 20 years, the Corps has devoted substantial efforts to evaluating the proposed five-foot deepening project for the Delaware River,” the ruling said. It noted that the Corps has conducted three comprehensive National Environmental Policy Act (NEPA) studies to assess the impact of the project.

The court agreed with the assessment of the agency’s final environmental study, released in 2009. That report recommends the project because it says its economic benefits outweigh any adverse environmental effects.
Deepening the channel would benefit large vessels by eliminating the need for them to transfer part of their cargo in the lower Delaware Bay, the assessment concluded.

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