Del. Dep’t of Natural Resources & Envtl. Control v. Corps

New Jersey, Delaware and the Delaware Riverkeeper Network filed lawsuits in 2009 to stop a 5-foot deepening of the river channel, a project that Congress approved in 1992. Supported by the Philadelphia Regional Port Authority, the Corps’ project was approved on summary judgment before federal courts in both Delaware and New Jersey. On appeal, the three-judge panel ruled that the Corps had satisfied NE PA requirements with a 1992 environmental impact statement (EIS ), 1997 supplemental EIS and 2009 environmental analysis, as well as extensive public participation. The court also held that when Congress approved the project, Section 404 permitting obligations were reduced or eliminated. As for the Coastal Zone Management Act, the court found that the Corps complied by issuing “determinations” that activities will be “consistent to the maximum extent practicable” with state management programs. The court rejected plaintiffs’ arguments that the “consistency determinations” were inadequate and affirmed the district court decision holding that the Corps properly exercised its authority under the National Environmental Policy Act (NE PA), Clean Water Act and Coastal Zone Management Act.