Delaware Department of Natural Resources & Environmental Control v. United States Army Corps of Engineers
685 F.3d 259
| 3rd Cir. | 2012Background
- Congress authorized a five-foot deepening of the Delaware River main stem in 1992 with federal funding and a Record of Decision finding environmental compliance and public interest.
- The Corps pursued NEPA analyses (EIS/SEIS/EA) over the years; in 2009 it issued a 179-page Environmental Assessment concluding no SEIS was needed and no significant environmental impact.
- Delaware and New Jersey challenged NEPA, CZMA, and CWA compliance in district court; the districts granted summary judgment for the Corps, allowing dredging to proceed.
- CZMA consents were initially in place in 1997; New Jersey later sought supplemental determinations, while Delaware required new consistency actions in 2009.
- The Corps invoked Section 404(r) (CWA) exemption for a congressionally authorized project to avoid 404 permitting and water certifications; it also invoked Section 404(t) to maintain navigation, and argued 313/404(t) exemptions applied.
- Appellate review affirmed, holding the Corps’ 2009 EA and reliance on the 404(r)/404(t) exemptions were reasonable and NEPA/CZMA/CWA requirements were satisfied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA adequacy of the 2009 EA | Riverkeeper/NY argued EA failed hard look and required SEIS. | Corps conducted hard look; public process satisfied; no SEIS needed. | NEPA claims failed; EA satisfied hard look and procedures. |
| CWA exemptions and compliance | Riverkeeper contested 401(a), 313, and 404(t) exemptions did not apply; permits required. | Section 404(r) exemption triggered; 313/404(t) exemptions justified; water certifications unnecessary. | Section 404(r) exemption triggered; 313/404(t) exemptions applicable; certifications not required. |
| CZMA consistency determinations | New Jersey required supplemental CZMA determinations due to significant changes/information. | No substantial changes or significant new information; no supplemental determinations needed. | NO supplemental CZMA determinations required; decision reasonable. |
| Procedural NEPA notices and public involvement | EA circulation/draft/notice procedures lacking or insufficient. | No universal pre-circulation requirement for EAs; public involvement adequate. | Procedures satisfied; no error in notice or circulation requirements. |
| Interplay with state permits and subaqueous lands/wetlands | State permits and local requirements must be satisfied; waivers not proper. | 404(t) carve-out and Skidmore deference support exemption from state permits. | Corps properly invoked exemptions; state requirements partially waived consistent with statute. |
Key Cases Cited
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (NEPA's hard look and agency deference framework)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (hard look requirement for substantial changes or new information)
- Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87 (1983) (NEPA uses a hard look at environmental consequences)
- Rapanos v. United States, 547 U.S. 715 (2006) (definitional scope of navigable waters and pollutants)
- Startzell v. City of Philadelphia, 533 F.3d 183 (3d Cir. 2008) (summary judgment standard and deference in agency review)
- In re Operation of Mo. River Sys. Litig., 516 F.3d 688 (8th Cir. 2008) (EA vs SEIS considerations and procedural review)