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American Shipper

Judge refuses to block Philadelphia dredging

Judge refuses to block Philadelphia dredging

   The Port of Philadelphia said a federal judge's decision last week is a “major boost” for plans to deepen the Delaware River's main shipping channel.

   Judge Sue L. Robinson of the U.S. District Court for the District of Delaware, ruled against those trying to stop the project, rejecting their request for a permanent injunction and lifting the temporary injunction imposed earlier this year that threatened additional work.

   Philadelphia Regional Port Authority (PRPA) Chairman John H. Estey said the decision would “help move the project forward.'

   The $277 million project would deepen 102 miles of the Delaware River Main Shipping Channel from 40 feet to 45 feet, from Philadelphia through the Delaware Bay.

   The project began in March, when an 11-mile stretch in Delaware waters was deepened. That work ended in September. Plans are underway for the next portion or 'reach,' as they are called, to be deepened.

   The suit was originally filed by Delaware’s Department of Natural Resources and Environmental Control against the U.S. Army Corps of Engineers, which was joined by New Jersey’s Department of Environmental Protection. They alleged the Corps was proceeding to deepen the main navigation channel in the river without obtaining required federal and state approvals. The motion by the two states for summary judgment in the case was joined by several environmental organizations. PRPA joined the suit in support of the Corps.

   According to the history of the controversy in Robinson’s decision, Congress authorized the deepening in 1992, and in 1996 the Corps agreed to address concerns raised by Delaware and signed a memorandum of understanding with New Jersey. But those agreements fell apart in 2002 and 2003.

   In 2009 the Corps issued a final Environmental Assessment that found the deepening project would have “no significant adverse effects” over those outlined in previous environmental studies and in October 2009 entered into a contract with PRPA for maintenance dredging which included an option for dredging portions of the river to 45 feet.

   The states were trying to stop the dredging, in part, by using their power to regulate pollutants under the Clean Water Act. But those powers are limited when inconsistent with the authority of the Secretary of the Army to maintain navigation.

   Much of Robinson’s decision dealt with whether deepening the channel from 40 to 45 feet constituted “maintenance,” and she wrote in her decision that “plaintiffs have not presented evidence tending to demonstrate that ‘maintain navigation’ must be read narrowly ' “

   She added that, 'in view of the progression to larger vessels, deepening the Delaware River Channel to 45 feet — consistent with other American ports — may be viewed as dredging designed to ‘maintain’ the current level of ‘navigation’ into the area’s ports.”

   A group of environmental organizations including the Delaware Riverkeeper Network, New Jersey Environmental Federation, and National Wildlife Federation, said they would file an appeal with the Third Circuit to challenge Robinson's decision.

   Maya van Rossum, of the Delaware Riverkeeper, complained that Robinson had a “predisposition in support of the project” and the groups believe “her decision does not have a solid legal basis, and it lays bare to Army Corps' abuse the entire length of the Delaware River.'

   Jane Nogaki of the New Jersey Environmental Federation, said, 'The Army Corps must be held to the same environmental standards as any industry that applies for a permit in Delaware, New Jersey, or any other state.” ' Chris Dupin

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