Delaware Department of Natural Resources & Environmental Control v. United States Army Corps of Engineers , 685 F.3d 259 ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 11-1283 & 11-1421
___________
STATE OF DELAWARE DEPARTMENT OF NATURAL
RESOURCES AND ENVIRONMENTAL CONTROL
DELAWARE RIVERKEEPER NETWORK;
THE DELAWARE RIVERKEEPER;
DELAWARE NATURE SOCIETY;
NATIONAL WILDLIFE FEDERATION;
NEW JERSEY ENVIRONMENTAL FEDERATION;
CLEAN WATER ACTION,
Intervenor-Plaintiffs
STATE OF NEW JERSEY DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Intervenor-Plaintiff
v.
UNITED STATES ARMY CORPS OF ENGINEERS;
HONORABLE JOHN McHUGH,
Secretary of the Army, in his official capacity;
HONORABLE JO-ELLEN DARCY,
Assistant Secretary of the Army for Civil Works,
in her official capacity;
Lt. Gen. ROBERT L. VAN ANTWERP, JR., Commander,
USACOE, in his official capacity;
Lt. Col. THOMAS TICKNER, Commander,
USACOE, North Atlantic Division,
Philadelphia District, in his official capacity
PHILADELPHIA REGIONAL PORT AUTHORITY,
Intervenor-Defendant
Delaware Riverkeeper Network;
The Delaware Riverkeeper;
Delaware Nature Society;
National Wildlife Federation;
New Jersey Environmental Federation;
Clean Water Action,
Appellants at No. 11-1283
State of New Jersey Department
of Environmental Protection,
Appellant at No. 11-1421
_______________________
On Appeal from the United States District Court
for the District of Delaware
D.C. Civil Action No. 09-cv-00821
(Honorable Sue L. Robinson)
___________
2
___________
Nos. 11-1414 & 11-1424
___________
STATE OF NEW JERSEY, DEPARTMENT OF
ENVIRONMENTAL PROTECTION; BOB MARTIN;
DELAWARE RIVERKEEPER NETWORK;
THE DELAWARE RIVERKEEPER;
DELAWARE NATURE SOCIETY;
NATIONAL WILDLIFE FEDERATION;
NEW JERSEY ENVIRONMENTAL FEDERATION;
CLEAN WATER ACTION
v.
UNITED STATES ARMY CORPS OF ENGINEERS;
LIEUTENANT COLONEL THOMAS TICKNER,
as District Commander of the Army Corps
of Engineers Philadelphia District;
JO-ELLEN DARCY, as Assistant Secretary for Civil Works,
United States Army Corps of Engineers;
JOHN McHUGH; LIEUTENANT GENERAL
ROBERT L. VAN ANTWERP, JR.,
Commander (in his official capacity);
COLONEL PETER A. DeLUCA, Commander,
North Atlantic Division in his official capacity
PHILADELPHIA REGIONAL PORT AUTHORITY,
Intervenor-Defendant
3
State of New Jersey, Department of
Environmental Protection; Bob Martin,
Appellants at No. 11-1414
Delaware Riverkeeper Network;
The Delaware Riverkeeper;
Delaware Nature Society;
National Wildlife Federation;
New Jersey Environmental Federation;
Clean Water Action,
Appellants at No. 11-1424
_______________________
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 09-cv-05591
(Honorable Joel A. Pisano)
______________
Argued January 18, 2012
Before: SCIRICA, FUENTES and
HARDIMAN, Circuit Judges.
(Filed: July 3, 2012)
JANE P. DAVENPORT McCLINTOCK, ESQUIRE (ARGUED)
Delaware Riverkeeper Network
300 Pond Street, 2ND Floor
Bristol, Pennsylvania 19007
Attorney for Delaware Riverkeeper Network;
4
The Delaware Riverkeeper;
Delaware Nature Society;
National Wildlife Federation;
New Jersey Environmental Federation;
Clean Water Action
KRISTEN D. HEINZERLING, ESQUIRE (ARGUED)
EILEEN P. KELLY, ESQUIRE
JEAN PATRICE REILLY, ESQUIRE
Office of Attorney General of New Jersey
Richard J. Hughes Justice Complex
25 Market Street, P.O. Box 093
Trenton, New Jersey 08625
Attorneys for State of New Jersey
Department of Environmental Protection; Bob Martin
MARK R. HAAG, ESQUIRE (ARGUED)
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 7415
Washington, D.C. 20044
Attorney for United States Army Corps of Engineers;
John McHugh; Jo-Ellen Darcy;
Robert L. Van Antwerp, Jr.; Thomas Tickner;
Peter A. DeLuca
HARRY WEISS, ESQUIRE (ARGUED)
MICHAEL C. DUFFY, ESQUIRE
MARLENE S. GOMEZ, ESQUIRE
Ballard Spahr
5
1735 Market Street, 51ST Floor
Philadelphia, Pennsylvania 19103
BETH E. MOSKOW-SCHNOLL, ESQUIRE
Ballard Spahr
919 North Market Street, 11TH Floor
Wilmington, Delaware 19801
BARRY A. STEINBERG, ESQUIRE
Kutak Rock
1101 Connecticut Avenue, N.W., Suite 1000
Washington, D.C. 20036
CLAUDIA M. TESORO, ESQUIRE
BARRY N. KRAMER, ESQUIRE
Office of Attorney General of Pennsylvania
21 South 12th Street, 3RD Floor
Philadelphia, Pennsylvania 19107
Attorneys for Philadelphia Regional Port Authority
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
At issue is whether the U.S. Army Corps of Engineers
can deepen the main channel of the Delaware River by five
feet, enabling river ports to be economically competitive and
at the same time, comply with statutes that protect the
environment. The roots of the project trace back decades. In
6
1992, Congress authorized the project and appropriated $195
million. It continued to support the effort with regular
appropriations for the next twenty years. 1 Commencement
was delayed for several reasons, but in the fall of 2009, the
Corps was ready to proceed. In October 2009, New Jersey
and Delaware filed suits in the District Courts of New Jersey
and Delaware to enjoin the Corps from dredging the deeper
channel. They alleged violations of the National
Environmental Policy Act (“NEPA”), the Clean Water Act
1
See, e.g., H.R. Rep. No. 111-278, at 50 (2009) (Conf. Rep.)
(appropriating $4.8 million to the deepening project in the
Energy and Water Development and Related Agencies
Appropriations Act of 2010); H.R. Rep. No. 109-275, at 73
(2005) (Conf. Rep.) (approving $2.25 million to the project in
the Energy and Water Development Appropriations Act of
2006). In 1999 and 2000, Congress also supported the project
by extending credit to non-federal entities for costs related to
design, construction, and disposal. See Water Resources
Development Act of 2000, Pub. L. No. 106-541, § 306, 114
Stat. 2572 (2000) (“The project for navigation, Delaware
River Mainstem and Channel Deepening . . . is further
modified to authorize the Secretary to credit toward the non-
Federal share of the cost of the project . . . the costs incurred
by the non-Federal interests in providing additional capacity
at dredged material disposal areas . . .”); Water Resources
Development Act of 1999, Pub. L. No. 106-53, § 308, 113
Stat. 269 (1999) (same). Most recently, the U.S. House of
Representatives approved $29.45 million for fiscal year 2013.
See H.R. Rep. No. 112-462, at 29 (2010).
7
(“CWA”), and the Coastal Zone Management Act
(“CZMA”). Each District Court granted summary judgment
to the Corps, holding no environmental statutes would be
breached. We will affirm.
I.
A.
The federal government has maintained navigation in
the Delaware River for over one hundred years. The initial
project, “Philadelphia to the Sea,” was authorized by
Congress in 1910 and ensures a navigation channel of 40-foot
depth between Allegheny Avenue, Philadelphia, and a deep
water point in the Delaware Bay, near Ship John Light. It
requires the Corps to dredge 3.45 million cubic yards of
material annually and to deposit the sediment at nearby
locations, either owned or leased by the federal government.
In 2009, the Corps used seven confined sites and one open-
water site for disposal.
The deepening project dates to 1954, when the Senate
Committee on Public Works, by resolution, requested the
Corps to study “the Delaware River between Philadelphia and
the sea, for the purpose of identifying the need for any
modification to the existing channel dimensions and
anchorage areas.” In 1970, the House Committee on Public
Works also instructed the Corps to analyze commerce along
the Delaware River and to identify projects that would
promote development of its ports. Pursuant to these
directives, the Corps made extensive studies during the 1970s
8
and 1980s. In 1992, it published a Feasibility Report and
Environmental Impact Statement (“EIS”), recommending a
deepening of five feet along the “main stem” of the Delaware
River, the 102-mile stretch between the mouth of the
Delaware Bay and the Philadelphia and Camden harbors.
The Environmental Impact Statement predicted the
deepening project would yield substantial economic benefits
in the form of reduced costs to shippers. The main stem of the
river hosts a concentration of heavy industry, as well as the
second largest complex of oil refineries and petrochemical
plants in the nation. But, as the EIS observed, “current
authorized channel dimensions . . . present a constraint to
efficient vessel movement.” The report determined that
deepening the main navigation channel by five feet would
benefit oil tankers, dry bulk shippers, and other large vessels,
because it would enable them to service Delaware River ports
without needing to “lighter” (transfer a portion of their cargo
in the lower Delaware Bay) or “light load” (travel at under-
capacity). While the EIS identified potential adverse impacts
to water quality, benthic organisms, and fishery resources, it
concluded these would be minimal and were outweighed by
the project’s benefits. Altogether, it forecast that construction
and maintenance of a 5-foot deeper channel for five years
would require the Corps to dredge 375 million cubic yards of
material above the dredging associated with the Philadelphia
to the Sea project.
In June 1992, the Corps submitted the Environmental
Impact Statement to Congress. That October, Congress
passed the Water Resources Development Act, authorizing
9
the deepening project to go forward. See Water Resources
Development Act of 1992, Pub. L. No. 102-580, § 101(6),
106 Stat. 4797 (“WRDA”). Congress estimated the project
would cost a total of approximately $295 million, with $195
million to be borne by the federal government. Id. In
December 1992, the Corps issued a Record of Decision
stating the deepening project was “economically justified, in
accordance with environmental statutes, and in the public
interest.” Not only would “transportation cost savings . . .
outweigh any adverse effects,” but the project was preferable
to all other alternative plans, including a “no action”
alternative.
After issuing the Record of Decision, the Corps
initiated the Preconstruction, Engineering and Design
(“PED”) phase of the project. It consulted federal and state
agencies and outside experts, and conducted new
environmental analyses. In 1997, the Corps published a
Supplemental Environmental Impact Statement (“SEIS”). Its
goals were first, to “provide additional information and
environmental analysis to address environmental concerns
raised during review of the 1992 [EIS]”; and second, to
evaluate modifications to the deepening project that had been
made since the EIS was published. 2 Like the EIS, the SEIS
2
These modifications were primarily to the project’s disposal
plan. In the EIS, the Corps assumed it would deposit the
dredged sediment from the project at two existing and three
new disposal sites. By 1997, the Corps planned to use four,
rather than three, new disposal facilities. The Corps also
embraced a proposal to store dredged material at four
10
recommended the project proceed. At the same time, it
reduced its estimate of the amount of material to be dredged
over 50 years – for initial project construction and future
maintenance – from 375 to 321 million cubic yards. Like the
EIS, the SEIS concluded the project would yield considerable
economic benefits at a minimal environmental cost. On
December 18, 1998, the Corps issued a second Record of
Decision stating it had “reviewed and evaluated documents
concerning the proposed action, including additional PED
phase studies,” and it concluded “[t]he public interest will
best be served by implementing the improvements identified
and described in the Feasibility Report and the Supplemental
Environmental Impact Statement.” The Record of Decision
reiterated that “[a]ll practical means to avoid or minimize
adverse environmental effects have been incorporated into the
recommended plan.”
For the next eleven years, progress on the deepening
project stalled. One reason for the delay was that in the mid-
2000s, the Delaware River Port Authority (“DRPA”)
withdrew the support it had tendered in 1999, leaving the
Corps without a local partner. 3 In June 2008, the Philadelphia
“beneficial use” sites in Delaware and New Jersey – at Kelly
Island, DE, for wetlands restoration; at Egg Point Island, NJ,
also for wetlands restoration; and at Broadkill and Slaughter
Beaches, DE, for beach nourishment. The sand for Broadkill
Beach would first be stockpiled elsewhere.
3
The bi-state board of the DRPA came to stalemate at its
meeting in December 2005, when the New Jersey
commissioners on the board refused to endorse the deepening
11
River Port Authority (“PRPA”) came forward and signed a
partnership agreement with the Corps. The agencies agreed to
share costs: 75% for the Corps, 25% for PRPA.
By late 2008, the Corps was ready to commence
dredging the deeper channel. But over a decade had passed
since the SEIS was published, and there were new
developments. First, improved survey technology meant the
deepening could be deployed more efficiently, reducing the
amount of sediment. The total estimated dredging for the
project over a 50-year period was reduced again, from 321 to
232 million cubic yards. Accordingly, the updated disposal
plan called for using only existing, federally-owned sites –
the four new disposal sites included in the SEIS were no
longer necessary. Second, the construction plan now called
for dredged sand from the Delaware Bay to be deposited
project and Pennsylvania Governor Ed Rendell, Chairman of
the DRPA, refused to adopt the agency’s budget until the
project was approved. See Geoff Mulvihill, Dredging Spat
Deepens Between Two Neighbors, Associated Press, Dec. 31,
2005. For the next 18 months, the meetings of the DRPA
were suspended. In May 2007, the two states finally reached a
deal: DRPA would return the $38.5 million set aside for the
project to Pennsylvania and New Jersey, half-and-half; DRPA
would hand jurisdiction over the project to the Philadelphia
River Port Authority (“PRPA”); Pennsylvania would proceed
in collaboration with PRPA; and New Jersey would use its
share of the returned money for local improvement projects.
See Deborah Yao, Pa., N.J. Finally Agree on Delaware River
Dredging Project, Associated Press, May 18, 2007.
12
directly onto Broadkill Beach, DE, rather than temporarily
stockpiled offshore. Third, the reduction in the amount of
predicted dredged material meant a wetlands restoration
project at Egg Point Island, NJ, would be deferred. Finally,
there were two environmental changes since 1997. An oil
spill from the T/S Athos I in November 2004 had released
265,000 gallons of oil into the Delaware River, temporarily
increasing the toxicity of the river’s sediments. Also, recent
surveys predicted an expansion in the number and distribution
of shortnose sturgeon in the Delaware River, potentially
increasing the risk that rock blasting in the Marcus Hook
region could cause the species.
The Corps released a public notice on December 17,
2008, announcing it was undertaking a new “environmental
review.” The notice stated:
Notice is hereby given that the Philadelphia
District, U.S. Army Corps of Engineers, is
conducting an environmental review of all
applicable, existing and new information
generated subsequent to the Supplemental
Environmental Impact Statement (SEIS) of
1997 prepared for the Delaware River Main
Stem and Channel Project . . . . At present, the
Philadelphia District has found no factors
precluding the Project from moving forward
based on previous studies. A summary of
project changes and environmental changes
known to date is attached. The public and all
agencies are invited to comment on the attached
13
changes, and to identify any applicable existing
and new information generated subsequent to
the 1997 SEIS by responding to this Public
Notice. A copy of the SEIS of 1997 and other
environmental studies performed since the
completion of the SEIS, are among the
information available on the District’s website.
The environmental review referenced above
will be used to update the environmental record,
and to determine whether further environmental
work and analyses are needed. 4
On April 3, 2009, the Corps published an
Environmental Assessment (“EA”). The report’s central
conclusion was that no additional environmental impact
statement was necessary. None of the developments since
1997 – the elimination of the four new disposal sites, the plan
for direct stockpiling at Broadkill Beach, the deferment of
wetlands restoration at Egg Point Island, and the possible
changes to the natural environment – had materially altered
the project’s environmental risk profile. Thus, the EA closed
with a signed declaration by the Commander of the Corps’
Philadelphia District, stating:
Based on the information contained in this EA .
. . 1) none of the changes to the proposed
project are “substantial”; and 2) there are no
4
The Corps provided the public four weeks for comments
(initially, two weeks were provided but the Corps lengthened
this in response to requests for more time).
14
new circumstances that can be considered
“significant.” Therefore, I have determined that
the threshold for preparation of a Supplemental
Environmental Impact Statement (SEIS) . . . has
not been met and that changes to the project or
project conditions since the 1997 SEIS will not
have a significant adverse effect on the human
environment.
Like the Environmental Impact Statement and Supplemental
Environmental Impact Statement, the Environmental
Assessment recommended the project proceed because its
substantial economic benefits outweighed any possible
adverse environmental effects. 5 On April 8, 2009, the Corps
5
The 2009 EA described the economic benefits of the
deepening project as follows:
The NED [National Economic
Development] benefits quantified include the
reduced costs of transportation realized through
operational efficiencies (reduced lightering and
lightloading), and the use of larger more
efficient vessels, both resulting from navigation
improvements at the harbor. Reduced
transportation costs result in reduced production
and distribution costs and thereby increase the
net value of the national output of goods and
services.
Benefits will result from the decrease in
the cost per ton for shipping commodities into
or out of the Delaware River Port System. The
15
transmitted the 1997 Supplemental Environmental Impact
Statement and 2009 Environmental Assessment to the chairs
of the Senate and House Subcommittees on Energy and Water
Development in the Committees on Appropriations.
When Congress first authorized the deepening project
in 1992, the Corps initiated a comprehensive process of
discussion, coordination, and collaboration with New Jersey
and Delaware to obtain the state authorizations mandated by
various environmental statutes. Two statutes are relevant to
this appeal. First, the Coastal Zone Management Act
45 foot channel depth will improve the
economic efficiency of ships moving through
the Delaware River ports. No induced tonnage
(i.e., commodity shifts from other ports) will
take place with the proposed project deepening.
The largest vessels in the port fleet, crude oil
tankers, currently lighter at Big Stone
Anchorage in the naturally deep water of the
lower Delaware Bay. These vessels will
continue to carry the same tonnage from foreign
origin ports but will be able to operate more
efficiently in the Delaware River with a
deepened channel from reduced lightering. This
will also result in a reduction in barge traffic
needed to move the lightered crude oil upriver
to the refineries. Also, a deeper channel depth
will allow current dry bulk and container
vessels to carry more cargo as well as allow a
fleet shift in the charter dry bulk market.
16
obligates the Corps to submit a “consistency determination”
to any state whose “coastal zone” will be affected by one of
its activities. 16 U.S.C. § 1456(c)(1)(A), (C). The
consistency determination describes how the Corps will
deploy the project “in a manner which is consistent to the
maximum extent practicable” with the state’s program for
managing coastal areas. Id. If the Corps receives a
“concurrence,” it may proceed; if it does not, it can proceed
over the state’s objection in limited circumstances. 15 C.F.R.
§§ 930.41(a)-(d), 930.43(d). Second, the Clean Water Act
requires the Corps to comply with all state laws “respecting
the control and abatement of water pollution.” 33 U.S.C. §
1323(a). The Corps must obtain a state “water certification”
when, on the basis of a federally-issued permit, it plans to
discharge pollutants into a state’s navigable waters. 33 U.S.C.
§ 1341(a).
To comply with the CZMA, the Corps submitted
“consistency determinations” to the Delaware Department of
Natural Resources and Environmental Control (“DNREC”)
and the New Jersey Department of Environmental Protection
(“NJDEP”) in 1996. Delaware identified several concerns, but
provided a concurrence on May 1, 1997. New Jersey signed a
Memorandum of Understanding with the Corps on August 29,
1997, and on the same day, provided a concurrence.
Accordingly, both CZMA clearances were in place in 1997.
But each state retreated. New Jersey attempted to “revoke” its
CZMA concurrence in September 2002, and requested
supplemental filings from the Corps in 2008 and again in
2009. Delaware issued an order requiring the Corps to submit
a new consistency determination in 2009, contending
17
“substantial project modifications” had rendered its 1997
concurrence outdated.
The Corps did not provide supplemental consistency
determinations to New Jersey or Delaware. Rather, on
November 9, 2009, it issued a Memorandum of Record
concluding that no additional coordination was necessary for
the Corps to comply with the CZMA. The Corps referred to
the April 2009 EA, which had found that no substantial
changes to the project had been made and no significant new
information about the project’s consequences had surfaced
since the 1997 SEIS. Because concurrences from each state
had been in place at that point in time, and because the
project’s risk profile had not changed, it was not necessary to
provide supplemental consistency determinations.
On January 19, 2001, the Corps initiated coordination
with Delaware to comply with the Clean Water Act; that is, it
applied to the Delaware Department of Natural Resources and
Environmental Control for a water quality “certification” as
well as for Subaqueous Lands and Wetlands permits. See 7
Del. Code chs. 60, 66 & 72. These efforts were unsuccessful.
Significantly, Delaware took no action on the Corps’
application for the next eight years. 6 On December 30, 2008,
6
DNREC did hold hearings on the Corps’ application in
December 2001, soliciting public comments and hiring an
independent consultant to serve as a Hearing Officer. In 2003,
the Hearing Officer published a report recommending that
Delaware deny the application. But DNREC did not act on
the recommendation for the next five years.
18
it filed a comment in response to the public notice issued by
the Corps on December 17, stating it would review any new
information on the project “in the context of a new Delaware
subaqueous lands and wetlands permit application.” The
implication was that Delaware had denied, by inaction, the
prior requests for Subaqueous Lands and Wetlands permits
and was now requesting a new application. 7 On July 23,
2009, eight and a half years after the Corps filed its
application, Delaware made its denial of the 2001 application
official by order of the Secretary of DNREC.
The record does not indicate whether the Corps
applied for a water quality certification from New Jersey to
comply with the Clean Water Act. But neither party disputes
that to date, the Corps has not obtained such a certification
from New Jersey.
Despite these roadblocks, the Corps issued a
Memorandum of Record on April 30, 2009, invoking its
authority to “maintain navigation” under Section 404(t) of the
Clean Water Act. See 33 U.S.C. § 1344(t). This authority, the
Corps contends, relieved it of any further obligation to obtain
Subaqueous Lands and Wetlands permits from Delaware. The
Corps drew additional authority from Section 404(r) of the
CWA, which provides a special waiver for projects that are
congressionally authorized. Id. § 1344(r). It contends Section
404(r) obviated the need to obtain water quality certifications
from Delaware or New Jersey.
7
Delaware’s letter did not directly mention the issue of the
water quality certification.
19
By late 2009, the Corps believed it had complied with
all statutory mandates and could begin dredging the deeper
channel. Under NEPA, it had published an Environmental
Assessment in April 2009, concluding the project was in the
public interest and that no additional environmental impact
statements were necessary. Under the CZMA, it had
submitted consistency determinations to New Jersey and
Delaware in 1996, obtained concurrences within a year, and
issued a Memorandum of Record announcing no additional
CZMA coordination was necessary. Under the Clean Water
Act, it had issued a separate Memorandum of Record in April
2009, invoking Section 404(t) of the Act to overcome the
need for the special Delaware permits, and believed it could
otherwise rely on the Section 404(r) exemption to circumvent
the water quality certifications. In October 2009, the Corps
entered into a contract with PRPA which authorized it to
initiate the project at “Reach C,” a 12-mile stretch spanning
from the Delaware Memorial Bridge to the C&D Canal. The
contract did not authorize the Corps to deepen any other
portion of the river until December 2010.
B.
On October 30, 2009 and November 2, 2009, the
Delaware Department of Natural Resources and
Environmental Control and the New Jersey Department of
Environmental Protection initiated actions in the District
Courts of Delaware and New Jersey to prevent the Corps
from commencing dredging of the deeper channel. In the
Delaware action, DNREC sued under the Clean Water Act,
Clean Air Act, Coastal Zone Management Act, and the
20
Delaware Code, requesting the court enjoin the Corps until it
obtained the authorizations and concurrences from Delaware
specified by those statutes. Delaware Riverkeeper Network
(“Riverkeeper”) intervened as a plaintiff, and PRPA as a
defendant. On January 29, 2010, the District Court granted in
part and denied in part Delaware’s request. It preliminarily
enjoined the project at Reaches A, B, D, and E, but allowed
the Corps to commence at Reach C. 8 The parties filed and
cross-filed motions for summary judgment, and on December
7, 2010, the District Court dissolved its partial injunction and
granted summary judgment to the Corps and PRPA. It held
the Corps had properly invoked its authority to “maintain
8
The reasoning for the District Court’s ruling was as follows.
At a hearing in December 2009, the Corps claimed
construction at Reach C was slated to begin imminently, but
subsequent phases would not commence until December
2010. Meanwhile, despite its delay, DNREC had represented
that it was prepared to complete its administrative review of
the Corps’ application for the various state authorizations
within a year. The District Court reasoned that while the
Corps was likely to prevail on its claim that all federal
statutes had been complied with, and so construction at
Reach C should commence, there was no harm in enjoining
the remainder of the project to enable DNREC to provide its
decisions on the Corps’ application. Given that future phases
of the project were not slated to begin for a year anyway, and
that DNREC claimed it would complete its review within that
time, the partial injunction would facilitate federal-state
coordination while not compromising the Corps’ interests.
21
navigation” under Section 404(t) of the CWA, and this made
all the difference. It held: “Having determined that the
navigation exception . . . is applicable here . . . the Corps is
exempt from compliance with the CWA, CZMA, and CAA,
and judgment must be entered in its favor.”
In the New Jersey action, NJDEP sought relief under
NEPA, the CWA, the CZMA, the Clean Air Act, the Fish &
Wildlife Coordination Act, the Water Resources
Development Act, and the Magnuson-Stevens Fishery
Conservation and Management Act. NJDEP asked the court
to enjoin the Corps until it had “comprehensively sample[d]
and analyze[d] the sediment within the areas to be dredged,”
issued a new SEIS, obtained a water quality certificate from
New Jersey, and completed its supplemental coordination
under the CZMA. Riverkeeper again intervened as a plaintiff,
and PRPA again intervened as a defendant. The parties filed
and cross-filed motions for summary judgment and on
January 13, 2011, the court granted summary judgment in
favor of the Corps and PRPA. The court held the Corps had
complied with NEPA when it issued the 2009 EA, complied
with the CZMA when it declined to provide a supplemental
consistency determination, and was relieved of its obligations
under the CWA because Congress authorized the project in
1992. Riverkeeper and New Jersey appealed both judgments
under NEPA, the CZMA, and the CWA, and we consolidated
their cases for review. Delaware did not file an appeal.
As this litigation unfolded, the Corps made headway
on the project. After receiving court approval in January
2010, it commenced dredging at “Reach C” and completed
22
that segment in September 2010. In November 2011, the
Corps began deepening the 4-mile stretch known as “Lower
Reach B,” which extends from Oldsman Creek to the
Delaware Memorial Bridge. That segment is now also
complete. See Delaware River Main Channel Deepening
Project: Construction Status, U.S. Army Corps of Engineers
Philadelphia District, http://www.nap.usace.army.mil/cenap-
pl/drmcdp/drcs.htm (last updated Jan. 20, 2012); Jon Hurdle,
New Federal Funding May Move Delaware River Channel-
Deepening Project Forward, DFMNews (Feb. 20, 2012),
http://www.delawarefirst.org/23188-delaware-river-channel-
deepening.
II. 9
We review grants of summary judgment de novo.
Startzell v. City of Phila., 533 F.3d 183, 192 (3d Cir. 2008).
Summary judgment is proper when the pleadings, the
discovery, the disclosure materials on file, and any affidavits
show that there is no “genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Because appellants challenge the
actions of a federal agency (the Corps) in its application of
federal law (NEPA, the CWA, the CZMA, and corresponding
regulations), our standard of review is informed by
administrative law doctrines prescribing the degree of
9
Appellants’ causes of action arise under federal law.
Accordingly, the Delaware and New Jersey District Courts
had jurisdiction under 28 U.S.C. § 1331 and we have
jurisdiction under 28 U.S.C. § 1291.
23
deference a reviewing court should apply to agency conduct.
We elaborate further on the amount of deference due for each
of the statutory challenges.
III.
New Jersey and Riverkeeper contend the Corps’
decision to proceed with the project in 2009 ran afoul of
NEPA procedurally and substantively. As for procedures,
appellants contend the publication of the EA was arbitrary
and capricious because the Corps failed to comply with the
regulations governing the preparation of NEPA studies. As
for substance, appellants contend the EA fell short of the
“hard look” demanded by NEPA on whether an SEIS was
necessary. As explained below, we find all NEPA claims
unavailing.
A.
Congress enacted the National Environmental Policy
Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (codified at 42
U.S.C. § 4321 et seq.), to further two goals: ensure federal
agencies consider the environmental consequences of projects
before committing resources; and facilitate agencies’
communication with the public about their environmental
analyses. Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350-52 (1989). NEPA is a procedural statute. Its
goal is to “prohibi[t] uninformed – rather than unwise –
agency action.” N.J. Dep’t of Envtl. Prot. v. U.S. Nuclear
Regulatory Comm’n, 561 F.3d 132, 134 (3d Cir. 2009)
(internal quotation marks and citation omitted). NEPA also
24
created the Council of Environmental Quality (“CEQ”) within
the Executive Office of the President, granting it authority to
issue regulations effectuating NEPA. CEQ regulations are
“mandatory” for all federal agencies, carry the force of law,
and are entitled to “substantial deference.” See Marsh v. Or.
Natural Res. Council, 490 U.S. 360, 372 (1989); Andrus v.
Sierra Club, 442 U.S. 347, 358 (1979). In addition to CEQ
regulations, agencies are bound by whatever regulations they
promulgate under NEPA. E.g., 33 C.F.R. § 230 et seq. (U.S.
Army Corps of Engineers’ regulations).
NEPA requires federal agencies to prepare
environmental impact statements before undertaking “major
[f]ederal actions significantly affecting the quality of the
human environment.” 42 U.S.C. § 4332(C). 10 To comply, an
10
In full, NEPA provides:
[A]ll agencies of the Federal Government shall .
. . include in every recommendation or report on
proposals for legislation and other major
Federal actions significantly affecting the
quality of the human environment, a detailed
statement by the responsible official on – (i) the
environmental impact of the proposed action,
(ii) any adverse environmental effects which
cannot be avoided should the proposal be
implemented, (iii) alternatives to the proposed
action, (iv) the relationship between local short-
term uses of man’s environment and the
maintenance and enhancement of long-term
productivity, and (v) any irreversible and
25
agency must first decide whether a contemplated project
qualifies as a “major federal action significantly affecting the
quality of the human environment.” CEQ regulations instruct
the agency to consider both the “context” and “intensity” of
the action to determine if its environmental effects will be
“significant.” 40 C.F.R. § 1508.27(a)-(b). If the project
qualifies, the agency should assess whether it is of a type that
“[n]ormally requires an environmental impact assessment” or
“[n]ormally does not require either an environmental impact
statement or environmental assessment (categorical
exclusion).” Id. § 1501.4(a)(1)-(2). If the action normally
requires an impact statement, the agency should prepare one.
If it normally requires neither an impact statement nor an
assessment, the agency can proceed with the project. In all
remaining situations, the agency should “prepare an
environmental assessment” for the action. Id. § 1501.4(b). An
EA is a “concise public document” that “[b]riefly provide[s]
sufficient evidence and analysis for determining whether to
prepare an [EIS].” Id. § 1508.9(a). If the agency concludes on
the basis of the EA that no environmental impact statement is
needed, it must issue a Finding of No Significant Impact
(“FONSI”). Id. § 1501.4(e).
Agencies must update – or “supplement” – their
environmental impact statements over time to ensure they are
irretrievable commitments of resources which
would be involved in the proposed action
should it be implemented.
42 U.S.C. § 4332(C).
26
current. Marsh, 490 U.S. at 370-74. CEQ regulations instruct
agencies to “prepare supplements to either draft or final
environmental impact statements” in two situations: (1) if
“[t]he agency makes substantial changes in the proposed
action that are relevant to environmental concerns,” or (2) if
“[t]here are significant new circumstances or information
relevant to environmental concerns and bearing on the
proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1); see
also 33 C.F.R. § 230.13(b) (requiring the Corps to
supplement an EIS “whenever required as discussed in 40
CFR 1502.09(c)”). The Supreme Court has elaborated that an
agency must take a “hard look” in assessing whether either of
the Section 1502.9(c) scenarios is present. Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 72-73 (2004).
Understandably, neither NEPA nor CEQ regulations
prescribes particular proceedings agencies should use in
carrying out this “hard look.” In re Operation of Mo. River
Sys. Litig., 516 F.3d 688, 695 (8th Cir. 2008). 11
11
For instance, there is no requirement that the agency use an
EA to determine if a supplemental EIS is needed. In Marsh,
the Supreme Court upheld a decision by the Corps not to
issue a supplemental EIS when the agency had used a
Supplemental Information Report (“SIR”) rather than an EA
to assess new information. Marsh, 490 U.S. at 385 (holding
“the Corps acted within the dictates of NEPA in concluding
that supplementation was unnecessary” when its SIR found
“the new information was of exaggerated importance”).
27
B.
Judicial review of agency conduct under NEPA is
deferential. The sole question on review is whether the
agency’s actions were arbitrary or capricious. See 5 U.S.C. §
706(2)(A). When an agency publishes an EA and concludes
an EIS is not needed, courts set those determinations aside
only if there is evidence they were arbitrary or capricious. See
Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 763 (2004)
(“An agency’s decision not to prepare an EIS can be set aside
only upon a showing that it was ‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.’” (citing 5 U.S.C. § 706(2)(A)); Soc’y Hill Towers
Owners’ Ass’n v. Rendell, 210 F.3d 168, 180 (3d Cir. 2000).
Similarly, arbitrary and capricious review attaches to an
agency decision not to supplement an EIS. Marsh, 490 U.S. at
375-76 (“We conclude that review of the narrow question . . .
whether the Corps’ determination that the FEISS need not be
supplemented should be set aside is controlled by the
‘arbitrary and capricious’ standard of § 706(2)(A).”).
If some years pass between an agency’s completion of
an EIS and its commencement of a project, a supplemental
EIS may be indicated. But in Marsh, the Court made clear
that judicial review of agency conduct in such situations is
“narrow,” as is generally the case with arbitrary and
capricious review. Marsh, 490 U.S. at 378. An agency’s
decision not to supplement an EIS “is a classic example of a
factual dispute the resolution of which implicates substantial
agency expertise.” Id. at 376. Thus, the standard is still
whether the action evidences arbitrary or capricious decision-
28
making. See Town of Winthrop v. Fed. Aviation Admin., 535
F.3d 1, 3 (1st Cir. 2008) (upholding the FAA’s decision in
2007 not to supplement an EIS from 2002); Ark. Wildlife
Fed’n v. U.S. Army Corps of Eng’rs, 431 F.3d 1096, 1103-04
(8th Cir. 2005) (upholding the Corps’ decision in 2004, after
conducting an EA, not to supplement an EIS from 1999);
Price Road Neighborhood Ass’n, Inc. v. U.S. Dep’t of
Transp., 113 F.3d 1505 (9th Cir. 1997) (upholding the
Federal Highway Administration’s determination that a
project change did not require a new EA). 12
12
In South Trenton Residents Against 29 v. Federal Highway
Administration, 176 F.3d 658, 663 (3d Cir. 1999), we
“assume[d] . . . an agency’s determination not to revise an
Environmental Impact Statement must be ‘reasonable under
the circumstances.’” (internal citations and quotation marks
omitted; alteration in original). But Marsh unquestionably
held that review in such contexts is for arbitrary or capricious
action. Marsh, 490 U.S. at 375-76 (“The parties disagree . . .
on the standard that should be applied by a court that is asked
to review the agency’s decision. Petitioners argue that the
reviewing court need only decide whether the agency
decision was ‘arbitrary and capricious,’ whereas respondents
argue that the reviewing court must make its own
determination of reasonableness to ascertain whether the
agency action complied with the law. In determining the
proper standard of review, we look to § 10(e) of the
Administrative Procedure Act (APA), 5 U.S.C. § 706 . . . .
We conclude that review of the narrow question before us
whether the Corps’ determination that the FEISS need not be
29
C.
In our review of the Corps’ conduct, we conclude that
its publication of the 2009 EA was neither arbitrary nor
capricious.
1.
The Corps complied with the procedural requirements
prescribed by NEPA and its corresponding regulations
because it engaged in a transparent and inclusive process,
soliciting the views of federal and state agencies as well as of
members of the public, and published an exhaustive, 179-
page Environmental Assessment that reviewed the project’s
risks, responded to concerns raised, and came to the
reasonable conclusion the project should proceed.
Neither CEQ nor Corps regulations detail the process
an agency should follow when publishing an environmental
assessment. See generally 40 C.F.R. § 1508.9 (CEQ
regulations defining EAs); 33 C.F.R. § 230.10 (Corps
regulations defining EAs). There are no notice requirements,
pre-circulation requirements, or instructions about the public
comments process. CEQ regulations only provide that
agencies “shall involve . . . the public, to the extent
practicable, in preparing [environmental] assessments[.]” 40
C.F.R. § 1501.4(b). This is different in the case of
environmental impact statements, for which CEQ and Corps
supplemented should be set aside is controlled by the
‘arbitrary and capricious’ standard of § 706(2)(A).”).
30
regulations are detailed. 13 See Greater Yellowstone Coal. v.
Flowers, 359 F.3d 1257, 1279 (10th Cir. 2004) (“NEPA’s
public involvement requirements are not as well defined
when an agency prepares only an EA and not an EIS.”).
The Corps’ procedures in preparing and publishing the
2009 EA satisfied Section 1501.4(b)’s directive to “involve . .
. the public to the extent practicable.” On December 17, 2008,
the agency published a notice stating it was undertaking an
“environmental review” in order “to update the environmental
record, and to determine whether further environmental work
and analyses are needed.” The Corps provided a summary of
changes to the project that had been made since 1997 and
links to the SEIS, EIS, and reports by other federal agencies.
Collectively, the notice and appended materials
communicated to the public that the Corps was undertaking a
new environmental study of the deepening project and that its
goal was to determine whether “further environmental work,”
13
CEQ regulations mandate that agencies “publish a notice of
intent in the Federal Register” at the earliest “practicable”
moment regarding the preparation of an environmental impact
statement, 40 C.F.R. § 1501.7; disseminate a copy of the draft
or final EIS for public review before taking further action, id.§ 1506.10(b)(1), (2); “[r]equest comments [on the EIS] from
the public, affirmatively soliciting comments from those
persons or organizations who may be interested or affected,”
id. § 1503.1(a)(4); and “respond by one or more of the means
listed below” to the comments received, id. § 1503.4(a). See
also 33 C.F.R. §§ 230.19, App. C ¶¶ 1-2 (regulations
governing draft and final EIS reports).
31
such as a new SEIS, was needed. It directly provided the
public with access to the information it would rely upon and
solicited comments. The 30-day comment period was equal
to the length of time mandated by CEQ regulations for
comment periods for final EIS studies. 40 C.F.R. §
1506.10(b)(2). The Corps was transparent, clear, and
inclusive.
After soliciting and reviewing the public comments,
the Corps published a thorough, 179-page Environmental
Assessment on April 3, 2009. The report addressed the
substance of the most important issues raised in the comments
– questions about sediment quality, water quality, air quality,
biological resources, and the impacts of the Athos oil spill.
Each environmental risk, the report concluded, was minimal
and could be mitigated through appropriate implementation
measures. The Corps also responded in great detail to a
comment filed by the New Jersey Department of
Environmental Protection on January 14, 2009, sending the
agency a letter on April 24, 2009 that reiterated the findings
of the EA and expounded on its conclusions.
Despite the Corps’ comprehensive public engagement,
appellants contend it acted arbitrarily and capriciously under
NEPA. They argue the Corps provided inadequate public
notice; erred in declining to publish a FONSI alongside the
EA; erred in not circulating a draft of the EA for public
review before publication; and did not meaningfully review
the comments submitted. None of these claims has merit.
32
Regarding public notice, appellants contend the Corps
did not specify the form of its forthcoming “review,” i.e., that
it would be an Environmental Assessment, and that the
comment period fell during a time of year when many people
are on vacation. But as explained, neither NEPA nor its
corresponding regulations impose a public notice requirement
for EAs. See generally 40 C.F.R. § 1508.9; 33 C.F.R. §
230.10. The CEQ regulations only direct that agencies
“involve . . . the public, to the extent practicable.” 40 C.F.R. §
1501.4(b). The December 17, 2008 notice satisfied this
mandate by describing a forthcoming “environmental review”
that would be “used to update the environmental record, and
to determine whether further environmental work and
analyses are needed.” Furthermore, the Corps appended a
wealth of materials to its notice to make evident the
information it would rely upon and to solicit feedback on that
information. Courts have upheld EAs preceded by public
notices with the same or with considerably less detail than
that here. E.g., Theodore Roosevelt Conservation P’ship v.
Salazar, 616 F.3d 497, 519 (D.C. Cir. 2010) (involving a
public notice that did not “suppl[y] any specific
environmental information”); Bering Strait Citizens for
Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524
F.3d 938, 952-53 (9th Cir. 2008) (involving a notice that did
not specify an EA was being prepared); Alliance To Protect
Nantucket Sound, Inc. v. U.S. Dep’t of Army, 398 F.3d 105,
108, 115 (1st Cir. 2005) (involving a notice that did not
mention a forthcoming EA).
Second, appellants fault the Corps for publishing the
EA without issuing a Finding of No Significant Impact. But
33
neither CEQ nor Corps regulations impose a FONSI
requirement in this context – an agency deciding, on the basis
of an EA, whether to issue a supplemental EIS. The
regulations require FONSIs only when the agency employs an
EA to decide whether to issue an initial EIS. See 40 C.F.R. §
1501.4(e) (instructing agencies to prepare “a finding of no
significant impact (§ 1508.13) if the agency determines on the
basis of an environmental assessment not to prepare a[n
environmental impact] statement”); 33 C.F.R. § 230.11 (“A
FONSI shall be prepared for a proposed action, not
categorically excluded, for which an EIS will not be
prepared.”). Given that CEQ and Corps regulations authorize
the use of EAs for a wide array of purposes, see 40 C.F.R. §
1501.3(b) (“Agencies may prepare an environmental
assessment on any action at any time in order to assist agency
planning and decisionmaking.”); 33 C.F.R. § 230.10(c), their
silence on FONSIs for all but the initial EIS-determination is
instructive. The Corps was not required to issue a FONSI, and
its decision to refrain from doing so was not arbitrary or
capricious. See In re Operation of Mo. River Sys. Litig., 516
F.3d at 695 (“[T]he Corps prepared an EA, not to help it
decide whether to prepare an EIS, but rather to determine
whether the change in agency action required an SEIS. As
this case illustrates, it is reasonable to expect that the Corps
will sometimes determine that a FONSI is not appropriate
because the action being taken has a significant impact on the
environment, but an SEIS is not required because the impact
was sufficiently analyzed in an earlier FEIS [Final
34
Environmental Impact Statement]. This approach is neither a
misuse of the EA procedure nor a violation of NEPA.”). 14
14
We recognize that the Corps’ General Counsel, Earl
Stockdale, came to a different conclusion on the necessity of
a FONSI. In an internal memorandum prepared for the
agency, he reasoned that “all EAs must result in either a
FONSI or an EIS with no exception” and so “without
preparing of a FONSI, the Corps will simply not have
completed its required NEPA process.” This conclusion was
incorrect. The sole regulatory provisions cited by Stockdale to
support his analysis were 40 C.F.R. § 1501.4(e) and 33 C.F.R.
§ 230.11. These provisions do require FONSIs, but only for
the initial EIS determination. See supra.
Nonetheless, even if the FONSI requirement under
Section 1501.4(e) attached, the Corps complied with it. The
last page of the EA contained a signed declaration by
Lieutenant Colonel Thomas Ticker, stating: “Based on the
information contained in this EA and the referenced studies, I
have concluded that . . . . the threshold for preparation of a
Supplemental Environmental Impact Statement (SEIS) set
forth at 40 CFR 1502.9(c) has not been met and that changes
to the project or project conditions since the 1997 SEIS will
not have a significant adverse effect on the human
environment.” It was neither arbitrary nor capricious for the
Corps to assume this signed declaration operated as a FONSI.
The CEQ regulations define a FONSI as “a document by a
Federal agency briefly presenting the reasons why an action .
. . will not have a significant effect on the human environment
35
Third, appellants contend the Corps’ failure to
circulate a draft of the EA before final publication was
procedurally invalid. But neither CEQ nor Corps regulations
impose a universal requirement to circulate draft EAs before
publication. The CEQ regulations instruct that a document be
disseminated for public review only when it is a draft or final
EIS, 40 C.F.R. § 1506.10(b), or involves a “proposed action”
that (i) would normally require an EIS which the agency has
decided to forgo, or (ii) is “without precedent,” id. §
1501.4(e)(2)(i), (ii). The Corps’ regulations require that EAs
be circulated before publication only when they concern
“feasibility, continuing authority, or special planning reports
and certain planning/engineering reports.” 33 C.F.R. §
230.11. The EA for the deepening project did not fall into any
of these categories. 15 See Bering Strait Citizens, 524 F.3d at
and for which an environmental impact statement therefore
will not be prepared.” 40 C.F.R. § 1508.13.
15
The EA by definition was not a draft or final EIS, so was
not covered by 40 C.F.R. § 1506.10(b). It also did not fall
under either prong of 40 C.F.R. § 1501.4(e)(2) – it is not an
action “which normally requires the preparation of an
environmental impact statement” under § 1501.4(e)(2)(i),
because Corps regulations provide an exclusive list of such
actions at 33 C.F.R. § 230.6 and the project does not qualify;
and it is not an action “without precedent” under §
1501.4(e)(2)(ii), because the Corps has maintained dredging
operations in the Delaware River since 1910. Finally, the EA
did not fall under 33 C.F.R. § 230.11. That section refers to
reports produced by the Corps pursuant to specific regulatory
36
952 (“We hold today that the circulation of a draft EA is not
required in every case. . . . Our conclusion is consistent with
the views of other circuits, which uniformly have not insisted
on the circulation of a draft EA.”); Fund for Animals, Inc. v.
Rice, 85 F.3d 535, 549 (11th Cir. 1996) (holding there was
“no legal requirement that an Environmental Assessment be
circulated publicly and, in fact, they rarely are” (emphasis
omitted)). Meanwhile, although some evidence in the record
suggests the Corps often released EAs for public review
before publication, this was a nonbinding internal practice
from which the Corps had discretion to deviate. United States
v. Caceres, 440 U.S. 741, 754 n.18 (1979) (“[A]gencies are
not required, at the risk of invalidation of their action, to
follow all of their rules, even those properly classified as
‘internal.’”). It exercised that discretion reasonably, given the
long history of public involvement in reviewing and
commenting on the deepening project, including the recent
four-week comment period, and given the EA’s central
conclusion that no factor or development altered the findings
programs, none of which apply here. See 33 C.F.R. §§
263.10, 263.15, 263.19 (“Continuing Authorities Program”);
id. § 230 App. A (“feasibility studies”); see also Procedures
for Implementing the National Environmental Policy Act
(NEPA), 53 Fed. Reg. 3120, 3124 (Feb. 3. 1988) (explaining
that 33 C.F.R. § 230.11 requires a “30 day review of the EA”
for the “types of actions” specified in the rule, none of which
include dredging activities). Appellants appear to concede
that none of the provisions mandating EA pre-circulation
apply here. N.J. Br. at 44-46; Riverkeeper Br. at 79-81.
37
of the earlier reports. E.g., Pogliani v. U.S. Army Corps of
Eng’rs, 306 F.3d 1235, 1240 (2d Cir. 2002) (refusing to grant
a preliminary injunction based on the Corps’ decision not to
circulate a draft EA because the action was not one which
“normally requires” an EIS nor “without precedent” under 40
C.F.R. § 1501.4(e)(2), and so did not have a pre-circulation
requirement).
Finally, appellants contend the Corps failed to
meaningfully consider the public comments it received on its
December 17, 2008 notice. But the 179-page Environmental
Assessment comprehensively addressed the key issues raised
in the comments. See supra. Furthermore, the record
demonstrates over twenty years of engagement by the Corps
with the public, state governments, and other federal
agencies. The Corps’ activity in the 2008-2009 period was the
final chapter of this engagement. On May 4, 1989, the Corps
issued a notice of intent to file a Draft Environmental Impact
Statement on the deepening project. It circulated a copy of
that report for public comment on July 13, 1990, and released
a final EIS in February 1992, incorporating the comments
received. The Corps repeated this public engagement process
for the SEIS in 1997. Between 1992 and 2008, it had a steady
stream of communications with the EPA, New Jersey, and
Delaware about the project’s compliance with the Clean
Water Act and the Coastal Zone Management Act. It also
engaged in rigorous coordination with the National Marine
Fisheries Service (“NMFS”), conducting an Endangered
Species Act consultation in 1996 and preparing a Biological
Assessment for the agency in 2009. Given this twenty-plus
year period of public, inter-state, and inter-agency
38
involvement, the assertion that the Corps failed to engage the
public or respond to its views lacks merit. 16
2.
NEPA not only requires that agencies follow certain
16
The record does not show the Corps’ decision to proceed
with the project was “predetermined,” making the EA a sham
review. See Riverkeeper Reply Br. at 22; NJ Reply Br. at 15.
NEPA reviews “must be taken objectively and in good faith,
not as an exercise in form over substance, and not as a
subterfuge designed to rationalize a decision already made.”
Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000). We
will invalidate projects where the “agency has impermissibly
committed itself to a course of action before embarking upon
a NEPA analysis.” Forest Guardians v. U.S. Fish & Wildlife
Serv., 611 F.3d 692, 716 (10th Cir. 2010). But there is no
indication that the Corps “impermissibly committed itself” to
the deepening project before completing the EA. It did not
begin dredging or make an “irretrievable commitment of
resources” while the environmental review was pending.
Metcalf, 214 F.3d at 1143. The one contract it entered into
before the EA was finalized – the Project Partnership
Agreement, which was signed with the Philadelphia Regional
Port Authority on June 23, 2008 – expressly acknowledged
that the Corps would “expeditiously construct the general
navigation features . . . applying those procedures usually
applied to Federal projects, pursuant to Federal laws,
regulations, and policies.” In other words, construction was
made contingent on a successful NEPA review.
39
procedures when assembling environmental reports, but also
that they take a “hard look” at the environmental costs of the
proposed action as compared to the contemplated benefits.
See Baltimore Gas & Elec. Co. v. Natural Res. Def. Council,
Inc., 462 U.S. 87, 98 (1983) (“Congress, in enacting NEPA . .
. . required [] that the agency take a ‘hard look’ at the
environmental consequences before taking a major action.”);
Vt. Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, Inc., 435 U.S. 519, 524 (1978). The Corps provided
the necessary “hard look” at the project’s costs and benefits,
and at whether an additional SEIS was needed for the project,
in the 2009 EA. Riverkeeper and New Jersey advance three
reasons for why the agency’s review was not sufficient, none
of which is convincing.
First, Riverkeeper argues the EA failed to adequately
address the adverse impacts the project could cause on the
shortnose sturgeon. The shortnose sturgeon was included in
the federal Endangered Species list at least as far back as
1996, meaning it bore that classification at the time the SEIS
and EA were published. Some agencies and organizations had
expressed concern during the comments period that the
analysis of the shortnose sturgeon in the 1997 SEIS was no
longer sufficient. New information about the species and its
use of the Delaware River had become available, such that
“the proposed deepening may affect shortnose sturgeon in a
manner or to an extent not considered” previously.
The EA contained no fewer than four separate sections
on the shortnose sturgeon, including a comprehensive
assessment of the species in an appended Essential Fish
40
Habitat Evaluation. The report acknowledged that recent
surveys showed “a significant expansion in the number and
distribution of shortnose sturgeon in the Delaware River
appears likely,” but it also cited a 2005 study which found
that “large aggregations of sturgeon do not exist in the
blasting area.” Furthermore, it explained how blasting
techniques could be honed to minimize harm to the species.
The Corps drew on these analyses – as well as its findings in
a Biological Assessment published for NMFS earlier that year
– to conclude that adverse impacts to the shortnose sturgeon
would be minimal. 17 The Corps’ conclusion was neither
arbitrary nor capricious.
Riverkeeper also contends the EA did not give a hard
look to the dangers confronting the Atlantic sturgeon. NMFS
17
The Biological Assessment was prepared by the Corps in
January 2009. In it, the Corps had concluded that any risks to
shortnose sturgeon posed by the deepening project could be
“minimize[d] and in some cases eliminate[d],” because “the
majority of potential impacts would be related to the blasting
activities . . . scheduled to take place in December and
January of project Years 1 and 2.” NMFS endorsed the
Corps’ findings in a Biological Opinion published in July
2009. The Biological Opinion found: “[I]n its entirety, the
proposed action is likely to result in direct physical effects . . .
to no more than 57 shortnose sturgeon . . . . this number
represents a very small percentage of the shortnose sturgeon
population in the Delaware River . . . . [T]he proposed
deepening project will not appreciably reduce the likelihood
of survival . . . for this species . . . .”
41
designated the Atlantic sturgeon as a “candidate” for the
Endangered Species list in 2006, and throughout the time at
issue in this litigation, it retained that classification. 18
“Candidate” species receive no statutory protection under the
Endangered Species Act, but their vulnerability makes them
appropriate for consideration in a NEPA review.
The EA’s analysis of the Atlantic sturgeon was
sufficient. The report contained two sections on “threatened
and endangered species and other species of special concern,”
each of which contained a sub-section on the Atlantic
sturgeon. The sturgeon’s use of the Delaware River – from
spawning, to hatching, to other migratory patterns – was
analyzed in detail. Furthermore, every public comment about
18
On February 6, 2012, NMFS listed the New York Bight
distinct population segment (“DPS”) of the Atlantic sturgeon
as an Endangered Species. See Final Listing Rule for Gulf of
Maine, New York Bight, and Chesapeake Bay Distinct
Population Segments of the Atlantic Sturgeon in the
Northeast Region, 77 Fed. Reg. 5880, 5909 (Feb. 6, 2012) (to
be codified at 50 C.F.R. pt. 224). The New York Bight DPS
includes sturgeon in the Delaware River. Id. at 5881, 5903,
5912. Because NMFS’s endangerment listing post-dated the
events in this litigation, it has no bearing on the quality of the
EA. Nonetheless, we observe that it is unlikely the February
2012 listing would change the EA’s conclusion that no
additional SEIS was necessary for the project because the EA
treated the Atlantic sturgeon as a species of “special
concern,” given its “candidate” species listing at that time,
and analyzed its vulnerability in several discussions.
42
the vulnerability of the species that Riverkeeper cites in its
Brief was also addressed in the EA. See Riverkeeper Br. at 85
(citing comments by NMFS, Prof. Dewayne Fox, and the
Delaware River Basin Fish and Wildlife Management
Cooperative). The Delaware River Basin Fish and Wildlife
Management Cooperative filed a comment recommending the
Corps “establish dredging and blasting windows that would
result in the lowest probable impact to existing sturgeon
populations of both Atlantic as well as shortnose.” The EA
adopted this proposal: “All of these windows will be met
during construction of the deepening project,” save for one,
which was infeasible. Professor Dewayne Fox of Delaware
State University advised the Corps to take into account “the
large body of work . . . done primarily by both DSU and the
Delaware Department of Fisheries and Wildlife” about the
Atlantic sturgeon. The EA devoted three pages to the studies
of Professor Fox. NMFS informed the Corps it would
“recommend protective measures” for the Atlantic sturgeon.
The Corps committed to using “environmental windows” and
“[c]onstruction techniques” to “reduce the impacts of rock
blasting on fish,” and to working collaboratively with NMFS
during the project design phase. 19
19
Appellants draw our attention to a recent Ninth Circuit
decision in which the court invalidated a supplemental EIS
for, in part, failing to “provide baseline data for many of the
species, and instead plan[ning] to conduct surveys and studies
as part of its post-approval mitigation measures[.]” N. Plains
Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067,
1083 (9th Cir. 2011) (“Northern Plains”). Northern Plains is
43
Finally, New Jersey contends the EA’s analysis of
potential water contamination was deficient. In two ways,
New Jersey argues, the EA lacked the necessary data for a
robust analysis. First, it did not include up-to-date sediment
samples from “bend-widening areas” in the Delaware River,
which are necessary to obtain “‘a worst case picture of
contaminant concentrations that would potentially be in the
dredged material.’” N.J. Reply Br. 19 (citing the SEIS).
Second, New Jersey claims the EA omitted a “modified
elutriate analysis,” which was important for predicting how
dredged material, stored upstream, would impact surface
water quality.
Neither purported data shortcoming rises to the level
of arbitrary or capricious action. The EA relied on a broad
array of studies, surveys, and sediment samples to ground its
analysis of the potential water contamination from the project.
First, it relied on sediment samples evaluated in the SEIS,
which New Jersey concedes included samples from bend-
widening areas. These had shown no bioaccumulation of any
significance in the river’s sediment, and no potential for the
inapposite. The report in Northern Plains was deficient
because it sought to obtain baseline data, necessary for the
agency’s approval of a project, from mitigation measures to
be instituted after the project was underway. Id. at 1084. The
agency put the cart before the horse. Here, the EA contained
considerable baseline data on the Atlantic sturgeon, such as
studies from 2003 through 2007, and relied on mitigation
measures only to conclude the project could be deployed in a
way that would avoid causing significant harm to the species.
44
deepening to increase the water’s toxicity. Second, the EA
“incorporated . . . by reference” the modified elutriate
analysis from the SEIS, which similarly concluded that
“dredging and dredged material disposal operations would not
significantly impact water quality within the Delaware
River.” Third, the EA relied on two studies by the Corps in
2003 and 2005, analyzing “[a] total of 45 sediment cores”
from the main channel and concluding there was negligible
contamination. Finally, the EA relied on 162 sediment
samples collected by the National Oceanic and Atmospheric
Administration from intertidal and subtidal areas for a 2007
report. These samples showed the 2004 oil spill had left no
lingering effects and “baseline conditions (i.e., no spill-
associated service losses) [we]re reached in 14 months.”
Altogether, this material provided the Corps a sufficient basis
from which to analyze how the project would impact water
contamination in the Delaware River and from which to draw
well-reasoned, non-arbitrary conclusions. 20
20
New Jersey claims it flagged the need for updated sediment
samples from bend-widening areas and for a modified
elutriate analyses in its public comment from January 14,
2009. Accordingly, it claims the EA’s failure to include such
data was indefensible, as demonstrated in the recent case of
Sierra Club v. Van Antwerp, 661 F.3d 1147, 1157 (D.C. Cir.
2011) (holding it would have been arbitrary and capricious
for the Corps to issue a FONSI that failed to address a
comment raised by an expert about a threatened species, and
remanding for factfinding on that issue). But New Jersey’s
January 14 comment had not mentioned modified elutriate
45
IV.
Riverkeeper contends the Corps’ decision to proceed
with the deepening project violated the Clean Water Act.
First, Riverkeeper argues it violated Section 401(a), which
requires recipients of federal permits who release “discharge”
in navigable waters to obtain “a certification from the State in
which the discharge originates or will originate.” 33 U.S.C. §
1341(a)(1). The Corps never secured water certifications from
New Jersey or from Delaware for the project. Second,
Riverkeeper contends the Corps’ actions ran afoul of Sections
313 and 404(t), which obligate federal agencies to comply
with state environmental regulations when engaging in
dredging operations. 33 U.S.C. § 1323(a); id. § 1344(t). After
eight years of delay, Delaware denied the Corps two permits
required by state law for users of subaqueous lands and
wetlands in July 2009; nonetheless, the Corps decided to
proceed. In response to Riverkeeper’s challenges, the Corps
contends it is entitled to two statutory exemptions codified at
Sections 404(r) and 404(t) of the CWA. For the reasons
stated, we hold that both exemptions attach.
analysis. And while it called for updated sediment samples
from bend-widening areas, the EA relied upon reports
assembled in 2003, 2005 and 2007, all of which included
updated sediment samples. See supra. The Corps’ judgment
that these samples were sufficient to offer the agency a
complete picture of water contamination merits deference.
46
A.
The Clean Water Act (“CWA”) was enacted in 1972 to
“restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters.” Federal Water Pollution
Control Act, Pub. L. No. 92-500, § 101(a), 86 Stat. 816(1972). Under its principal provision, “the discharge of any
pollutant by any person shall be unlawful.” 33 U.S.C. §
1311(a). The “discharge of a pollutant” is defined as “any
addition of any pollutant to navigable waters from any point
source,” see id. § 1362(12); “navigable waters” are defined as
“waters of the United States, including the territorial seas,” id.
§ 1362(7); and “pollutant” is defined as including “dredged
spoil, . . . rock, sand, [and] cellar dirt,” id. § 1362(6). The
Delaware River readily qualifies as a “navigable water”
because it is a “relatively permanent . . . continuously flowing
bod[y] of water forming geographic features that are
described in ordinary parlance as . . . rivers,” Rapanos v.
United States, 547 U.S. 715, 739 (2006) (internal quotation
marks and citation omitted); and dredging qualifies as the
“discharge of a pollutant” because it results in the “addition”
of “dredged spoil” to a navigable water. Under Section
404(a), however, the U.S. Army Corps of Engineers may
“issue permits . . . for the discharge of dredged or fill material
into the navigable waters at specified disposal sites.” See
CWA § 404(a) (codified at 33 U.S.C. § 1344(a)). The Corps
“exercises the discretion of an enlightened despot” in issuing
discharge permits, Rapanos, 547 U.S. at 721, and considers a
broad range of factors set forth in its regulations, see 33
C.F.R. § 320.4. But there is one statutory obligation
incumbent upon the Corps. Before issuing a permit, it must
47
apply “guidelines developed by the Administrator [of the
EPA], in conjunction with the Secretary [of the Army],”
which prescribe a rigorous review of a project’s
environmental costs. CWA § 404(b)(1) (codified at 33 U.S.C.
§ 1344(b)); 40 C.F.R. § 230.10 et seq. 21
The Clean Water Act requires federal agencies and
holders of federally-issued discharge permits to comply with
state and local environmental laws in two pertinent ways.
First, under Section 401(a), the Act requires holders of U.S.
Army Corps permits, issued pursuant to Section 404, to
obtain “certifications” from the states in which the discharge
into navigable waters will occur. CWA § 401(a) (codified at
33 U.S.C. § 1341(a)(1)) (“Any applicant for a Federal license
or permit to conduct any activity . . . which may result in any
discharge into the navigable waters, shall provide the
licensing or permitting agency a certification from the State in
which the discharge originates or will originate . . . that any
such discharge will comply with the applicable provisions of
[other sections of this title].”). The state certification “shall
become a condition of any Federal license or permit subject
to the provisions of this section.” 33 U.S.C. § 1341(d).
Second, under Sections 313 and 404(t), the Act requires
federal departments and instrumentalities to comply with state
21
When the Corps seeks to undertake a project that will
release discharge, it does not go through the formality of
issuing a permit to itself. Instead, it follows “all applicable
substantive legal requirements” under Section 404, including
an application of the Section 404(b)(1) guidelines. 33 C.F.R.
§ 336.1(a).
48
environmental laws when they engage in activities that emit
pollutants into navigable waters. CWA § 313 (codified at 33
U.S.C. § 1323(a)) (“Each department, agency, or
instrumentality of the executive, legislative, and judicial
branches of the Federal Government . . . shall be subject to,
and comply with, all Federal, State, interstate, and local
requirements . . . respecting the control and abatement of
water pollution . . . .”); CWA § 404(t) (codified at 33 U.S.C.
§ 1344(t)) (“[Every federal] agency shall comply with such
State or interstate requirements both substantive and
procedural to control the discharge of dredged or fill material
to the same extent that any person is subject to such
requirements.”).
But the Act also provides exceptions to the provisions
cited, enacted as part of the Clean Water Act of 1977, Pub. L.
No. 97-217, 91 Stat. 1566. As to the water certification
requirement under Section 401(a), Section 404(r) creates an
exemption for projects “specifically authorized” by Congress.
See CWA § 404(r) (codified at 33 U.S.C. §1344(r)) (“The
discharge of dredged or fill material as part of the
construction of a Federal project specifically authorized by
Congress . . . is not prohibited by or otherwise subject to
regulation under this section . . . .”). As to the mandates to
follow states’ environmental laws, codified at Sections 313
and 404(t), the final sentence of Section 404(t) provides a
partial waiver. See CWA § 404(t) (codified at 33. U.S.C. §
1344(t)) (“This section shall not be construed as affecting or
impairing the authority of the Secretary to maintain
navigation.”); see also S. Rep. No. 95-370, at 68-69 (1977)
(“[C]orps dredging activities are not exempt from State
49
pollution abatement requirements. . . . [But this] is neither
intended nor expected to result in compromising the ability of
the corps to maintain navigation.”). Before Section 404(t) was
added in 1977, the CWA had included a provision, still in
force, that similarly preserved the Corps’ authority to
“maintain navigation.” See CWA § 511(a)(2) (codified at 33
U.S.C. § 1371(a)(2)) (“This chapter shall not be construed as .
. . affecting or impairing the authority of the Secretary of the
Army (A) to maintain navigation or (B) under the Act of
March 3, 1899[.]”).
B.
The Corps asserts it was relieved of the need to obtain
water certifications from New Jersey and Delaware under
Section 401(a) of the CWA by virtue of the “congressionally
authorized” exception under Section 404(r). Riverkeeper
disagrees, but we find the Corps’ argument convincing. 22
22
Riverkeeper argued the Corps violated CWA § 401(a), and
that CWA § 404(r) did not apply, at summary judgment in
both district courts. New Jersey raises this claim for the first
time on appeal. See N.J. Br. at 60. A party’s failure to raise an
issue in district court typically results in forfeiture of the
claim. Brenner v. Local 514, United Bhd. of Carpenters &
Joiners of Am., 927 F.2d 1283, 1298 (3d Cir. 1991) (holding
“[i]t is well established that failure to raise an issue in the
district court constitutes a waiver of the argument” unless
certain “extraordinary circumstances” exist). We need not
resolve whether to consider the Section 401(a) claim as to
50
As an initial matter, we agree with the Corps that “all
of the elements of section 404(r) have been satisfied” for the
deepening project. Section 404(r) provides:
The discharge of dredged or fill material as part
of the construction of a Federal project
specifically authorized by Congress . . . is not
prohibited by or otherwise subject to regulation
under this section . . . if information on the
effects of such discharge, including
consideration of the guidelines developed under
subsection (b)(1) of this section, is included in
an environmental impact statement for such
project pursuant to the National Environmental
Policy Act of 1969 [42 U.S.C.A. § 4321 et seq.]
and such environmental impact statement has
been submitted to Congress before the actual
discharge of dredged or fill material in
connection with the construction of such project
and prior to either authorization of such project
or an appropriation of funds for such
construction.
33 U.S.C. § 1344(r). Accordingly, to trigger Section 404(r),
there must be a federal project specifically authorized by
Congress. The deepening project unquestionably qualifies, as
Congress clearly authorized it in the Water Resources
Development Act of 1992, Pub. L. No. 102-580, § 101(6),
New Jersey because we find it to lack merit, when evaluated
as to Riverkeeper.
51
106 Stat. 4797, 4802 (“[T]he following projects for water
resources development and conservation and other purposes
are authorized to be carried out by the Secretary . . . . The
project for navigation, Delaware River Mainstem and
Channel Deepening, Delaware, New Jersey, and
Pennsylvania: Report of the Chief of Engineers, dated June
29, 1992, at a total cost of $294,931,000, with an estimated
Federal cost of $195,767,000 . . . .”). Section 404(r) also
requires that “information on the effects of [the project],
including consideration of the guidelines developed under
subsection (b)(1)” be “included in an environmental impact
statement . . . submitted to Congress before the actual
discharge of dredged or fill material . . . and prior to either
authorization of such project or an appropriation of funds for
such construction.” 33 U.S.C. § 1344(r). This prerequisite
was met. The Corps transmitted an EIS to Congress in June
1992 that had been prepared pursuant to NEPA and that
included, as Section 404(r) directs, a “consideration of the
guidelines developed under subsection (b)(1).” The
transmission occurred five months before Congress
authorized the project or appropriated funds, see WRDA, 106
Stat. at 4797 (showing a date passage of October 31, 1992),
and years before any “actual discharge” occurred.
Nonetheless, Riverkeeper contends Section 404(r)
does not apply for two reasons. The first is that the 1992 EIS
was incomplete because it lacked a Record of Decision. The
Record of Decision was issued in December 1992, two
months after the WRDA was enacted. But this is of no
moment. Section 404(r) mandates that “[an] environmental
impact statement . . . [prepared] pursuant to the National
52
Environmental Policy Act” be provided to Congress and that
it “includ[e] consideration of the guidelines developed under
subsection (b)(1)”; it never mentions a Record of Decision.
The absence of a Record of Decision in the congressional
submission violates no statutory command. Furthermore, the
purpose of Section 404(r) is for Congress to receive sufficient
information in order to make an informed judgment about
whether to authorize a federal project. In cases like this,
where an EIS is produced after a full-fledged notice and
comment process, bears the title of “final” impact study, and
is transmitted to Congress with an explicit request for a
Section 404(r) exemption, that purpose has been achieved. 23
23
The recent case of Board of Mississippi Levee
Commissioners v. EPA, 674 F.3d 409 (5th Cir. 2012) is
consistent with our holding. In that case, the Fifth Circuit held
that Section 404(r) of the CWA had not been triggered when
a report provided to Congress lacked, among other things, a
Record of Decision. The absence of a Record of Decision was
one factor among several that persuaded the court to find the
report had not been an agency’s “final EIS.” In addition to the
lack of a Record of Decision, the agency’s transmittal letter to
Congress plainly stated the report was not final. Id. at 414-
15. Four months after the report was transmitted to Congress,
the Chief of Engineers prepared a “final report” for the same
project. Id. at 415. And because the original report sent to
Congress was not in the record, the court could not determine
whether it was labeled a “final” EIS. The Fifth Circuit held
these factors collectively proved the document provided to
Congress had not been a “final EIS” and accordingly, Section
53
Second, Riverkeeper contends the SEIS invalidated
whatever exemption had been attained by virtue of the EIS.
Riverkeeper claims the SEIS stands as proof that by 1997, the
deepening project had changed to such an extent and new
information had become available to such a degree, that
Congress’s 1992 statutory authorization was no longer
binding. But nothing in the text of Section 404(r) suggests
that once the exemption attached, it lapses. The plain
language of the statute states that when Congress
“specifically authorizes” a federal project, following its
consideration of an EIS, the exemption is triggered. 33 U.S.C.
§ 1344(r). There is no requirement that the agency submit
supplemental NEPA reports so Congress can reauthorize the
venture. Furthermore, the SEIS’s central findings were that
despite the developments between 1992 and 1997 – e.g.,
modifications to the project, new scientific information that
became available – the conclusions in the EIS still applied.
The SEIS stated: “[R]efinements to the authorized plan that
were recommended in the 1992 Interim Feasibility Report . . .
. did not alter the environmental impacts that were presented
in the Final Environmental Impact Statement” and the project
still “compl[ied] with the 404(b)(1) guidelines.” There was
no need to solicit reauthorization from Congress because the
project had not changed in a material way.
404(r) had not been triggered. Id. at 419. Here, the EIS
transmitted to Congress in June 1992 was entitled “Final
Interim Feasibility Report,” was produced after a full notice
and comment process, and was sent with a transmittal letter
requesting the Section 404(r) exemption.
54
In sum, Section 404(r) of the CWA was triggered in
1992 and did not lapse by virtue of the Corps’ subsequent
NEPA analyses. The Corps was relieved of the federal
permitting requirement under Section 404, see 33 C.F.R. §
323.4(d) (explaining that “[f]ederal projects which qualify
under the criteria in section 404(r) of the CWA are exempt
from section 404 permit requirements”), as well as from the
water certification requirement under Section 401(a), see 33
U.S.C. § 1341(a)(1) (stating the certification mandate attaches
to “applicant[s] for a Federal license or permit to conduct any
activity”). The fact that the Corps attempted to work
collaboratively with New Jersey and Delaware for several
years does not undermine its lawful reliance on the Section
404(r) exemption.
C.
The Corps contends it was relieved of Sections 313
and 404(t) of the Clean Water Act, which required it to obtain
special Delaware permits, because it was entitled to a
statutory exemption codified at Section 404(t). We afford
Skidmore deference to the Corps’ invocation of Section 404(t)
and find its interpretation of the statute reasonable. We also
find the Corps was neither arbitrary nor capricious in deciding
to invoke Section 404(t).
The Delaware Subaqueous Lands Act “empower[s] the
Secretary to deal with or dispose of interest in public
subaqueous lands.” 7 Del. Code Ann. tit. 7, § 7201. Under
that authority, DNREC promulgated regulations instructing
that “[n]o . . . project which may potentially impact the public
55
interest in the use of tidal or navigable waters [or] contribute
to water pollution . . . shall be undertaken on public or private
subaqueous lands unless approval has been obtained from the
Department.” 7 Del. Admin. Code § 7504-2.7. The Delaware
Wetlands Act provides that “[a]ny activity on the wetlands
requires a permit from [DNREC].” 7 Del. Code Ann. tit. 7, §
6604(a). The word “activity” is defined to include dredging
operations. Id. § 6603. Both permit requirements extend to
the deepening project because it calls for the disposal of
dredged material at three subaqueous land-sites in Delaware
and for a wetlands restoration project in Delaware. 24
24
The record reveals some confusion as to whether the
wetlands permit was necessary and as to whether the Corps’
2001 application was made pursuant to the Wetlands Act or
solely the Subaqueous Lands Act. Neither party has raised
this issue on appeal. We assume both were required and that
the Corps applied for both.
It is also worth noting the permits mandated by the
Subaqueous Lands and Wetlands Acts were not affected by
the exemption codified at Section 404(r). Section 404(r)
relieves projects “specially authorized” by Congress from the
permitting requirements in Section 404. One of those
requirements, codified at Section 401(a), is to obtain a state
water certification. 33 U.S.C. § 1341(a)(1). But for a water
certification to fall under Section 401(a), it must be issued by
a state body operating a “permit program” that regulates
“discharges into navigable waters” and that has been
approved by the EPA. 33 U.S.C. § 1342(b). The Delaware
Subaqueous Lands and Wetlands Acts create permit programs
56
The Corps applied for subaqueous lands and wetlands
permits in 2001. For eight years, Delaware stalled on its
application. In light of Sections 313 and 404(t) of the CWA,
which obligate federal agencies to follow states’
environmental laws, the Corps was at an impasse.
Accordingly, it invoked the exemption set forth in Section
404(t) in the spring of 2009. That provision provides: “This
section shall not be construed as affecting or impairing the
authority of the Secretary to maintain navigation.” CWA
§404(t) (codified at 33 U.S.C. § 1344(t)). On April 30, 2009,
the Assistant Secretary of the Army for Civil Works signed a
Memorandum of Record declaring the “failure to construct
the 45’ Project as authorized by Congress in 1992 has . . .
impaired the Secretary of the Army’s authority to maintain
navigation . . . .” The Assistant Secretary was “direct[ing] the
Corps to proceed with construction of the project.” The
Memorandum of Record cited Section 404(t) of the CWA as
the authoritative basis for its action.
for the use of subaqueous lands and wetlands, neither of
which is approved by the EPA under § 1342. Accordingly,
the Delaware Subaqueous Lands and Wetlands Acts are
“other state requirements” that do not fall under Section
404(r) and that holders of federally-issued permits are
required to follow. See 33 C.F.R. § 323.4(d) (“Federal
projects which qualify under the criteria contained in section
404(r) of the CWA are exempt from section 404 permit
requirements, but may be subject to other State and Federal
requirements.”).
57
The Corps’ invocation of Section 404(t) was entitled to
Skidmore deference. In cases involving an agency’s legal
interpretation of a statute, the amount of deference afforded is
governed by the Chevron framework. First, a court asks
“whether Congress has directly spoken to the precise question
at issue.” Chevron, USA, Inc. v. Natural Res. Def. Council,
467 U.S. 837, 842 (1984). “If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed
intent of Congress.” Id. at 842-43. Second, a court asks
whether, if the statute is ambiguous, the agency has rendered
“a permissible construction.” Id. at 843. A court is more
likely to find the agency’s interpretation permissible if there
is a “complex and highly technical regulatory program,”
Robert Wood Johnson Univ. Hosp. v. Thompson, 297 F.3d
273, 282 (3d Cir. 2002) (citations and quotation marks
omitted), or if the agency has employed formal procedures,
such as notice and comment rulemaking, see Christensen v.
Harris Cnty., 529 U.S. 576, 587 (2000). If the court declines
to extend Chevron deference, it may nonetheless extend a
lesser degree deference under Skidmore v. Swift & Co., 323
U.S. 134 (1944).
Before resorting to Skidmore deference, we observe
that it is likely the phrase “maintain navigation” encompasses
activities, such as the deepening project, that improve a body
of water in order to keep navigation levels steady in light of
changes to commercial markets, technology, and
environmental conditions. While neither “maintain
navigation” nor its component words are explicitly defined in
the Clean Water Act, there is no evidence that Congress
58
intended the phrase to encompass only those activities that
preserve bodies of water as they existed in 1977, when the
statutory language was inserted. See Clean Water Act of
1977, Pub. L. No. 95-217, 91 Stat. 1566. Arguably, such a
reading would be irrational. Given that navigation evolves
over time, limiting the Corps to preserving rivers as they were
in 1977 could have the counter-productive effect of
preventing it from “maintaining” ship traffic. The dictionary
definitions also suggest the phrase reaches improvement
projects. “Maintain” is defined as “to keep in an existing state
(as of repair, efficiency or validity): preserve from failure or
decline,” and “navigation” as “ship traffic or commerce.” See
Merriam-Webster’s Collegiate Dictionary (11th ed. 2005).
These are capacious definitions; preserving “ship traffic”
from “failure or decline” could call for a wide range of
activities, including repairs, modifications, and
improvements.
Nonetheless, were we to find the statutory text
ambiguous, Skidmore deference would be warranted and
would support the Corps’ action. 25 A court will afford
25
We need not decide whether Chevron deference should
attach. Riverkeeper contends it should not, given the
informality of the agency’s action. Namely, it points out that
the Corps did not engage in notice and comment rulemaking
when it invoked Section 404(t), but acted on the basis of a
Memorandum of Record. See United States v. Mead Corp.,
533 U.S. 218, 230-31 (2001) (holding “the want of” notice
and comment procedures often compels in favor of not
deferring to the agency). We need not settle this debate. At
59
Skidmore deference upon consideration of “the thoroughness
evident in [an agency’s] consideration, the validity of its
reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade, if lacking power to control.” Skidmore, 323 U.S. at
140. The most important considerations are whether the
agency’s interpretation “is consistent and contemporaneous
with other pronouncements of the agency and whether it is
reasonable given the language and purpose of the Act.”
Cleary ex. rel. Cleary v. Waldman, 167 F.3d 801, 808 (3d Cir.
1999). The Corps’ interpretation of Section 404(t) is entitled
to deference under these standards. Its reading did not
contradict any of the agency’s prior statements about Section
404(t) – the Corps had only once before invoked the
exception, and in a context different from but not in conflict
with that here. See In re Operation of Mo. River Sys. Litig.,
418 F.3d at 915 (affirming the Corps’ invocation of Section
404(t) to release water from a reservoir and support
downstream navigation in the Missouri River). The
interpretation also was reasonable “given the language and
purpose” of the statute, because the view that “maintain
navigation” extends to activities necessary to maintain current
levels of ship traffic, which is what the EA forecasted the
project would do by enabling shippers to employ a larger
vessel fleet, see supra note 5, is consistent with the plain
meaning of “maintain” – i.e., to “preserve from failure or
the least, Skidmore deference is due, and is sufficient to
support the Corps’ action.
60
decline.” Finally, the canon that “[w]aivers of immunity must
be construed strictly in favor of the sovereign,” see U.S. Dep’t
of Energy v. Ohio, 503 U.S. 607, 615 (1992) (internal
quotation marks and citation omitted), supports the Corps’
interpretation. Allowing “maintain navigation” to encompass
the deepening project would have the effect of limiting the
federal government’s waiver of sovereign immunity in the
first part of Section 404(t).
Riverkeeper contends Skidmore deference is improper.
First, it argues that Congress intended Section 404(t)’s
“maintain navigation” authority to be “linked with the Corps’
historical authorities under the Rivers and Harbors Act of
1899 . . . . to maintain navigation by preventing the
obstruction of navigable waterways.” Riverkeeper Br. at 47.
In other words, Congress only intended for “maintain
navigation” to protect the Corps’ mandate to do things it did
in 1899 – such as removing physical blockages from rivers or
preventing activities that would impede the flow of
waterborne commerce. The statutory language, however,
suggests the opposite. Congress did not include a reference to
the Rivers and Harbors Act in the text of Section 404(t) as it
had done when it codified Section 511 in 1972. Compare
CWA § 404(t) (“This section shall not be construed as
affecting or impairing the authority of the Secretary to
maintain navigation.”), with CWA § 511(a)(2) (“This chapter
shall not be construed as . . . affecting or impairing the
authority of the Secretary of the Army (A) to maintain
navigation or (B) under the Act of March 3, 1899[.]”). This
shows that if anything, Congress intended Section 404(t) to
reach more broadly than the programs the Corps managed in
61
1899 and to encompass the full scope of the Corps’ activities
in 1977. 26
26
Furthermore, the Corps had significantly broader authority
in 1899 than Riverkeeper acknowledges. The Rivers and
Harbors Act contains twenty-eight pages of appropriations to
the Corps for conducting “improvement” projects in the
nation’s waterways. See Rivers and Harbors Act of 1899, ch.
425, 30 Stat. 1121, 1121-1149 (“Be it enacted . . . [t]hat the
following sums of money be, and are hereby, appropriated . . .
to be expended under the direction of the Secretary of War
and the supervision of the Chief of Engineers, for the
construction, completion, repair, and preservation of the
public works hereinafter named: Improving Moosabec Bar,
Maine: Completing improvement, eleven thousand dollars. . .
. For improvement of the Buffalo entrance to Erie Basic and
Black Rock Harbor, New York . . . . Improving New York
Harbor, New York . . . by a deep channel, two thousand feet
wide and forty feet deep from the Narrows . . . one million
dollars . . . Improving Port Chester Harbor, New York:
Twenty-five thousand dollars, to be expended in enlargening
the channel below and up to Town Dock to a depth of twenty
feet . . . . Improving the outer bar, Brunswick Georgie: C.P.
Goodyear, the contractor with the Government of the United
States, to deepen the outer bar of Brunswick . . . . Improving
harbor at Pensacola, Florida: . . . seventy thousand dollars . . .
to be used toward securing a channel depth of thirty feet . . . .
Improving harbor at Mobile Alabama: . . . with the view of
ultimately securing a channel twenty-three feet deep and one
hundred feet wide at the bottom . . . . Improving Galveston
62
Finding the Corps’ interpretation of Section 404(t)
worthy of deference under Skidmore, our final step is to
determine whether the agency’s invocation of the exemption
was arbitrary or capricious. See 5 U.S.C. §706(2)(A); Robert
Wood Johnson Univ. Hosp., 297 F.3d at 284. It was neither.
After studying commerce patterns in the Delaware River for
two decades and publishing three extensive reports, in 1992,
1997, and 2009, the Corps concluded a five foot deepening
project was necessary to preserve the current flow of
navigation in the Delaware River. As the EA put it, this
project was essential to “improve the economic efficiency of
ships moving through the Delaware ports,” help shippers
“more efficiently apportion operating costs,” and “allow
current dry bulk and container vessels to carry more cargo as
well as allow a fleet shift in the charger dry bulk market.” The
Corps’ consideration of the issue was “thorough” and its
determination was reasonable. See Skidmore, 323 U.S. at 140.
Meanwhile, Delaware had sat on its permit application for
eight years and, in December 2008, told the Corps it would
need to submit an entirely new application. Given that the
first phase of the project was scheduled, as of April 2009, to
begin in August 2009, the Corps was warranted in invoking
Ship Channel . . . by dredging or otherwise . . . . Deepening
the channel from Galveston Harbor to Texas City, Texas . . .
.” (emphases added)). Accordingly, even if Sections 511 or
404(t) of the CWA circumscribed the Corps’ “maintain
navigation” authority to its historical authorities in 1899, the
latter included the execution of improvement and channel
deepening projects.
63
the exception to save the project from postponement or
indefinite delay.
V.
New Jersey contends the Corps acted arbitrarily and
capriciously under the Coastal Zone Management Act when it
decided, as memorialized in a Memorandum of Record issued
on November 9, 2009, to proceed with the project without
providing supplemental consistency determinations to
Delaware or New Jersey. Because “significant new
information” had become available since the Corps submitted
its initial CZMA determinations in 1997, New Jersey
contends, supplemental determinations were required.
According to New Jersey, the Corps’ conclusion to the
contrary was arbitrary and capricious because it was
grounded in the procedurally and substantively flawed EA.
A.
The Coastal Zone Management Act of 1972 was
enacted “to preserve, protect, develop, and where possible, to
restore or enhance, the resources of the Nation’s coastal zone
for this and succeeding generations,” and to “encourage and
assist the states to exercise effectively their responsibilities in
the coastal zone through the development and implementation
of management programs to achieve wise use of the land and
water resources of the coastal zone[.]” 16 U.S.C. § 1452(1),
(2). States’ “management programs” must provide for “the
protection of natural resources,” as well as “improved
coordination between State and Federal coastal zone
64
management agencies.” Id. § 1452(2)(A), (J). Federal
agencies conducting activities “within or outside the coastal
zone” are required to provide the relevant state(s) with a
“determination” that the activity “shall be carried out in a
manner which is consistent to the maximum extent
practicable with the enforceable policies of approved State
management programs.” Id. § 1456(c)(1)(A), (C). The
state(s), in turn, must either concur with or object to the
federal agency’s determination. 15 C.F.R. § 930.41(a). A
state “cannot unilaterally place an expiration date on its
concurrence.” Id. § 930.41(d). Moreover, even if a state
objects, the federal agency can proceed over the state’s
objection if it “conclude[s] that its proposed action is fully
consistent with the enforceable policies of the management
program.” Id. § 930.43(d)(2).
The CZMA regulations require federal agencies to
supplement their consistency determinations if “the proposed
activity will affects any coastal use or resource substantially
different than originally described.” Id. § 930.46(a).
“Substantially different” effects are “reasonably forseeable,”
and thereby warrant a supplemental determination, if: (1) the
agency “makes substantial changes in the proposed activity
that are relevant to the manageable program enforceable
policies”; or (2) there are “significant new circumstances or
information relevant to the proposed activity and [its] effect
on any coastal use or resources.” Id. § 930.46(a)(1), (2).
B.
The Corps’ conclusion in the Memorandum of Record
65
that it need not provide supplemental consistency
determinations to either state under the CZMA was
reasonable. Federal agencies are required to submit
supplemental determinations in either of two instances: if the
agency makes “substantial changes in the proposed activity,”
or if “significant new circumstances or information relevant
to the proposed activity and [its] effect on any coastal use or
resource” arise. Id. § 930.46(a)(1), (2). Relying on the EA,
the Corps concluded neither situation was present. With
respect to “substantial changes” to the project, the
Memorandum of Record identified three alterations that had
been made since 1997, when the original CZMA consistency
determinations were transmitted: (i) four disposal sites
identified in the SEIS had been eliminated; (ii) sand would
now be deposited directly onto Broadkill Beach, rather than
initially stockpiled offshore; and (iii) a planned beneficial use
site at Egg Point Island was no longer needed. None of these
changes were “substantial,” the Corps determined, because
the 2009 EA had found that none would cause serious
impacts to the environment. With respect to “significant new
circumstances or information,” the Memorandum of Record
noted both the oil spill of 2004 and the recent surveys
showing an expansion of the shortnose sturgeon in the region.
But again, relying on the EA and a 2009 Biological
Assessment the agency prepared for NMFS, the Corps
concluded neither development was “significant” because
neither would cause adverse environmental consequences not
anticipated in the SEIS. The Corps was justified in relying on
these recent and thorough reports. See supra. The agency’s
conclusion that 15 C.F.R. § 930.46(a) had been satisfied, and
66
that no supplemental consistency determinations were
required, was neither arbitrary nor capricious.
VI.
For over twenty years, the Corps has devoted
substantial efforts to evaluating the proposed five foot
deepening project for the Delaware River. It has published
three comprehensive NEPA reports, received multiple rounds
of public comments, and had immeasurable communications
with the relevant state and federal agencies. Its decision in
2009 to proceed with the project was consistent with NEPA,
the CWA, and the CZMA. Accordingly, we will affirm the
judgments of the District Courts of New Jersey and Delaware.
67