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- Appeals court refuses to block dredging of Delaware River
By JEFF MONTGOMERY • Th News Journal • February 24, 2010
A federal appeals court panel today refused to block the startup of an Army Corps of Engineers deepening of the Delaware River’s main shipping channel, finding that opponents failed to prove they will likely win a broader challenge to the project.
A coalition of environmental groups led by the Delaware Riverkeeper Network asked the Third Circuit Court of Appeals to intervene earlier this month after U.S. District Court Judge Sue L. Robinson refused to stop the first 12-mile stretch of deepening near Wilmington but blocked the remaining 90 miles pending a Delaware state permit review.
The corps wants to deepen the main channel to 45 feet from its current 40-foot depth. Shipping and business interests along the river argue the deeper water is needed to serve new generations of deeper bottomed ships. Costs are estimated at about $310 million, with taxpayers to contribute about $232 million and private interests led by the Philadelphia Regional Port Authority covering another $78 million.
Corps officials said as recently as today that work could start as early as Friday along the river near the Chesapeake & Delaware Canal.
Third Circuit Chief Judge Anthony J. Scirica, Judge Julio M. Fuentes and Thomas M. Hardiman issued the ruling.
Last year, federal officials declared that Delaware had unjustifiably delayed permit decisions on the case and invoked what they said was federal authority to overrule state environmental laws in order to “maintain navigation” on the nation’s waterways.
Critics sued, saying the corps overstepped its bounds, potentially setting a bad national precedent. They argued in their appeal that Robinson’s split decision favoring the corps was inappropriate and incorrectly put federal and private interests above states’ rights.
The most recent corps forecasts predict that the project will yield $3.5 million to $4 million more in annual benefits than costs, with about half the benefits going to refineries supplied by tanker from the river. Opponents dismissed the claims as overstated and based on flawed data and assumptions.
A Government Accountability Office review, requested by some members of the region’s congressional delegation, is due next month.
New Jersey joined the Riverkeeper group, Delaware Nature Society, National Wildlife Federation, New Jersey Environmental Federation and Clean Water Action in seeking the stay. The state and environmental organizations also are pursuing separate challenges to the dredging project in New Jersey’s federal court