Judge weighs injunction in dispute over Delaware River dredging

Judge hears arguments in Delaware river dredging

WILMINGTON, Del. — Attorneys for the Army Corps of Engineers and the state of Delaware faced off in federal court Tuesday over the Corps’ plan to begin dredging a portion of the Delaware River without obtaining state permits.

After more than three hours of arguments regarding the state’s request for a preliminary injunction to prevent the start of the dredging, U.S. District Judge Sue Robinson said she would accept additional briefs over the next two weeks before issuing a ruling.

In the meantime, Robinson directed the Corps to maintain the status quo and not start deepening the river’s shipping channel.

“I think this decision would be easier if I had a confidence in the administrative process that it would work efficiently,” said Robinson, concerned about the amount of time that has passed since Congress authorized the Corps in 1992 to deepen the channel.

The Corps has proposed deepening the channel from 40 feet to 45 feet for more than 100 miles from Philadelphia to the mouth of the Delaware Bay. Supporters say the dredging will accommodate bigger ships and keep local ports competitive, while opponents argue it will mostly benefit a few oil refineries while stirring up toxic sediments that could threaten water quality and wildlife.

The proposed channel deepening has been a source of friction in the region, with Pennsylvania championing the idea amid questions from officials in Delaware and New Jersey about the environmental impact and economic benefits. New Jersey has joined Delaware in suing the Corps.

In July, Delaware denied permits requested by the Corps, saying it had failed to submit additional information requested by the state and had made significant changes since turning in its permit application in 2001. In October, the Corps notified Delaware that it would start dredging this month or in early January without state permits, saying they are not required where federal authority to maintain navigation is negatively affected by a state’s failure to issue a permit in a timely manner.

Kent Hanson, a Justice Department attorney representing the Corps, accused Delaware on Tuesday of dragging its feet for more than five years after a state hearing officer recommended in 2003 that the permit application be denied.

“There is no reason for further delay,” he said.

Hanson also argued the state has presented no evidence to back up its claim that potentially harmful sediments would be stirred up and would cause the irreparable harm that would merit a preliminary injunction.

“It is a kind of fear mongering,” he said.

Delaware deputy attorney general Jennifer Oliva said the Corps’ claim that no toxic sediments would be stirred up in the area is based on samples taken more than 17 years ago with outdated methods.

Oliva also argued the maintenance dredging the Corps says it can do without permits is far different from deepening and widening the channel in a river that already carries “robust” ship traffic.

“It’s an enhancing project,” said Oliva, adding that there is no urgent need to begin dredging because even without state permits, the Corps still needs to meet U.S. Environmental Protection Agency requirements.