A federal appeals court decision to allow the long-delayed deepening of the Delaware ship channel paves the way for bigger ships to sail into Wilmington and other Delaware River ports.
The Third Circuit Court of Appeals in Philadelphia ruled Tuesday in favor of the U.S. Army Corps of Engineers which has begun to dredge the 102-mile channel but whose work was threatened by a lawsuit from the State of New Jersey and five environmental groups which sought to block the project on the grounds that it would cause ecological and economic harm to wildlife and wetlands.
The plaintiffs argued that the Army Corps had failed to do a thorough environmental assessment of the project as required under the National Environmental Policy Act (NEPA), and had violated the Clean Water Act (CWA) and the Coastal Zone Management Act (CZMA).
But the court upheld earlier rulings by district courts in Delaware and New Jersey that the Army Corps had not violated its duty under the federal laws.
“For over twenty years, the Corps has devoted substantial efforts to evaluating the proposed five-foot deepening project for the Delaware River,” the appeals court wrote in a 67-page opinion. “It has published three comprehensive NEPA reports, received multiple rounds of public comments, and had immeasurable communications with the relevant state and federal agencies.
“Its decision in 2009 to proceed with the project was consistent with NEPA, the CWA, and the CZMA. Accordingly, we will affirm the judgments of the District Courts of New Jersey and Delaware,” the court wrote.
The court said it was convinced by the Corps’ arguments that it did not need to obtain special permits from Delaware and New Jersey in order to proceed with dredging, and it rejected the plaintiff’s argument that the Corps violated a section of the Clean Water Act.
The project’s supporters say that deepening the channel to 45 feet from 40 feet will allow local ports to take the bigger ships that are expected to start using the Panama Canal when its widening is completed as scheduled in 2014. That will put economically vital ports like Wilmington on an equal footing with others in the region such as Baltimore and New York which can already take ships with deeper keels.
U.S. Senator Chris Coons said the court’s ruling represents an important boost for the local and regional economies.
“We need to seize this moment of significant opportunity,” he told DFM News. “I think this is critical.”
U.S. Senator Tom Carper said the court’s decision won’t please everyone but that it will now be possible to enjoy the economic benefits of larger ships calling at local ports while safeguarding the environment.
“I think it’s possible to have both,” he said during a visit to Rehoboth Beach.
Sen. Carper said the Port of Wilmington may now be able to strengthen its position as a top importer of bananas, and could be well placed to become a major export hub for Delaware’s economically vital poultry industry.
“This has the potential to make sure the Port of Wilmington isn’t just relevant but vibrant,” he said.
The ruling also removes one barrier from a plan to use the dredging spoils to help restore a degraded salt marsh at Prime Hook National Wildlife Refuge in southern Delaware. That proposal, recently published by the U.S. Fish and Wildlife Service, would be one of the largest coastal restoration projects in the Northeast.
Brian Selander, a spokesman for Governor Jack Markell, said the project now looks set to proceed. “The court has made clear that it is time to move forward and we expect the Corps will do so in a way that minimizes environmental impact,” Selander said in a statement. Delaware was previously a co-plaintiff in the suit but withdrew in 2011.
Dennis Rochford, President of the Maritime Exchange for the Delaware River and Bay, a nonprofit trade association that promotes trade, called the decision a “significant step forward” that would boost about $1 billion worth of actual or planned port improvements in Wilmington, Philadelphia, and Paulsoro, NJ, all of which are based on the expectation of being able to take larger ships.
That expenditure is in addition to $16.9 million in federal money being spent in the current year, another $31 million in federal funds budgeted for the coming fiscal year, and $30 million already spent on the deepening project by Pennsylvania, Rochford said.
“This is a great day,” said Rochford, who is a board member of Delaware First Media. “We got fireworks on July third.”
According to the Exchange, the Delaware River port complex contributes $6 billion to the regional economy. Its benefits include 75,000 jobs, $1.5 billion a year in wages and salaries, and $150 million a year in state and local taxes.
Richard Pearsall, a spokesman for the Army Corps in Philadelphia, said the decision will allow the Corps to dredge another 9.5 miles from the Walt Whitman Bridge to the south side of Philadelphia International Airport this fall, and 14 more miles from Reedy Point south, during the winter. Seventeen miles of channel south of Claymont has already been deepened.
“It’s a nice addition to our Fourth of July celebration,” Pearsall said. “We’re moving ahead with the project, confident that it will be good for the region’s economy and safe for the environment.”
Opponents argue that dredging will do ecological and economic harm to oyster beds; damage wetlands; hurt local populations of horseshoe crabs that provide food for migrating shorebirds and blood for medical researchers, and damage the population of the already-endangered Atlantic sturgeon.
Delaware Riverkeeper, one of the plaintiffs, accused the court of ignoring the legal requirement for the Corps to conduct a thorough environmental review of the project.
“An injustice has been perpetrated on all of the communities that depend upon the Delaware River for clean water, healthy fish, and jobs worth hundreds of millions of dollars,” said Maya van Rossum, the Delaware Riverkeeper.
“Sadly, the judges drew conclusions that were simply unsupported by the facts in manipulating their ultimate findings. 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,” she added.
Van Rossum, whose group previously predicted that the case would go to the U.S. Supreme Court whoever won in the appeals court, said she is considering how to proceed.