DEPT. OF NATURAL RESOURCES v. U.S. ARMY CORPS

uri River to support downstream navigation in accord with the goals of the Flood Control Act of 1944 (the "FCA"). Id. North Dakota argued that lowering the level of the lake would violate state-law water quality standards established by the CWA. The Eighth Circuit affirmed the district court's dismissal of the complaint, on the basis that the Corps was immune from suit:

Nebraska and South Dakota, downstream of North Dakota, also filed complaints as intervenors.

On its face, § 1371(a) exempts the Corps, which operates under the authority of the Secretary of the Army, from complying with the CWA when its authority to maintain navigation would be affected. It is also clear from the face of North Dakota's complaint that North Dakota is attempting to use its state water-quality standards to affect the Corps' authority to release water from Lake Sakakawea to support navigation. There are no exceptional circumstances here to indicate that Congress would not have intended the § 1371(a) "navigation exception" to the waiver of sovereign immunity to apply in this case.

Id. at 918. Further, the Court stated that

the CWA was amended in 1977 to emphasize that it applies to discharges from the Corps' channel-dredging operations. North Dakota argues that the legislative history from the 1977 amendment evidences Congress' intent for the Corps to comply with the CWA in all its operations, in spite of the navigation-based limitation in § 1371(a). This argument fails because the 1977 amendment, while emphasizing that the limited waiver of sovereign immunity in § 1323(a) applied to the Corps, left the clearly worded navigation exception in § 1371(a) intact. Absent some ambiguity in the statute, we have no occasion to look to legislative history. There is nothing ambiguous about the admonition of § 1371(a) that the CWA "shall not be construed as . . . affecting or impairing the authority of the Secretary of the Army . . . to maintain navigation." As a result, we do not reach the legislative history in this case.

Id. (internal citation omitted).

The court finds the foregoing persuasive. Here, the sovereign immunity waiver of CWA § 313(a) ( 33 U.S.C. § 1323(a)) is clearly limited by the "maintain navigation" exception of CWA § 511(a) ( 33 U.S.C. § 1371(a)). Legislative history cannot overcome sovereign immunity clearly provided by statute. Id.; see also Lane v. Pena, 518 U.S. 187, 192 (1996) ("A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text . . . A statute's legislative history cannot supply a waiver that does not appear clearly in any statutory text[.]") (citations omitted).

DNREC cites two decisions by the U.S. Comptroller General on this issue concerning the applicability of state permit fees. (D.I. 86 at 11-12) In both cases, the Comptroller General discussed Congress's purpose in adding CWA § 404(t) to clarify that federal facilities are subject to state permitting requirements. See Application for Permit to Dredge in National Forest — State of Michigan, 2002 WL 1782692 (Comp. Gen. Jan. 10, 2002); In the Matter of Payment of State Permit Fee by Federal Agency Under Section 404(t), Federal Water Pollution Control Act, 1979 WL 14900 (Comp. Gen. Jan. 4, 1979). The court finds this authority unpersuasive for the reasons provided above.

DNREC fears that, under such a holding, the Corps could remove all of its projects from state control by invoking the "maintain navigation" exception. The court neither condones nor anticipates such a result. As Mr. Wooley stated in his Memorandum of Record, the present invocation of federal supremacy presents only the second instance of the Secretary's utilization of the navigation exception in history; it is not a course of action "undertaken lightly." (AR030957) Rather, it has been invoked only to "protect interstate navigation" and, here, to "prevent a downstream state (Delaware) from interfering with interstate navigation needed by upstream states (Pennsylvania and New Jersey.)" ( Id.) In this case, the Corps participated in the Delaware permitting process until it determined that such participation was no longer practicable. The court anticipaties that the comity between the Corps and the State will continue.

It is the Corps' position that, although it could have invoked the exception earlier, and currently does not need to engage the permitting process, it has done so "as a matter of comity [and] as a means of allowing Delaware to evaluate potential environmental impacts through its own processes." (D.I. 97 at 10-11) (citation omitted)

Nor should the court's conclusion be interpreted as its authorizing the Corps to avoid its obligations under the CWA. According to DNREC,

[n]ot once . . . has the [Corps] ever applied for a Delaware subaqueous lands permit or water quality certification to maintenance dredge the main channel. Nor has the [Corps] ever complied with the CZMA, CAA or [the National Environmental Policy Act ("NEPA")] in connection with such maintenance dredging.

(D.I. 86 at 13-14) (internal citation omitted) In contrast to its historical approach to maintenance dredging, the Corps did comply with its environmental obligations in connection with the Deepening Project. With respect to the CZMA, the Corps undertook a consistency determination in which DNREC and NJDEP concurred in early 1997. As the court has previously explained, these concurrences are irrevocable. See Prelim. Inj. Op'n, 681 F. Supp. 2d at 560. Notwithstanding, the Corps prepared the 2009 EA "to evaluate the impacts of changes to the Congressionally authorized project for the [Deepening Project] . . . as well as changes to the existing conditions in the project area from those described in the 1992 [EIS], 1997 [SEIS], and 1998 [ROD] and to consolidate in one document the results of post-SEIS monitoring and data collection efforts." (AR025147-48) It was based on these efforts that the Corps concluded that: "(1) none of the changes to the proposed project are `substantial;' and (2) there are no new circumstances or information that can be considered `significant'" such as to warrant a supplemental consistancy determination pursuant to 15 C.F.R. § 930.46(a)(1). (AR025148) The parties now appear to concur that the Corps has complied with the CAA. The court does not reach the merits of environmental plaintiffs' disagreement with the quality of the Corps' 2009 reassessment in view of its holding, but simply notes the benefit of the Corps' efforts in this regard.

Supplementation is required "if the proposed activity will affect any coastal use or resource substantially different than originally described" in the coordination process.

Plaintiffs sought judgment that the 2009 EA is incomplete and that the Corps has violated the CAA for failing to account for indirect emissions. The primary dispute concerned whether the Corps purchased sufficient Emission Reduction Credits ("ERCs") from the appropriate Air Quality Control Region ("ACQR"). In its answering papers, the Corps provides declarations and other evidence documenting that the ERCs have been purchased and their transfers approved. Plaintiffs do not address the CAA in their reply briefs and, consequently, the court presumes the Corps' evidence sufficiently demonstrates complaince in this regard.

Interestingly, DNREC Secretary O'Mara (or his predecessor) did not ask the Corps to provide a supplemental consistency determination prior to 2009; O'Mara's request was in response to the 2009 EA. Notwithstanding, environmental plaintiffs assert that the Corps' refusal to provide a supplemental consistency determination is arbitrary and capricious because: (1) only a "limited, surface-level discussion of project changes" is provided; (2) corresponding to three issues (the quantity and placement of dredged material, Athos oil spill and expansion in the number of shortnose sturgeon); and (3) the 2009 EA does not "certify to DNREC's satisfaction that the Main Channel Deepening Project is consistent with Delaware's Coastal Management Program and, therefore, by extension, federal law." (D.I. 90 at 30-31) Plaintiffs do not clearly articulate how any project changes create a "substantially different" effect on any coastal use or resource. That plaintiffs disagree with the Corps' conclusion does not indicate an arbitrary or capricious action on the Corps' part. The court does not make any findings in this regard.

4. Conclusion

Having determined that the navigation exception of CWA § 404(t) is applicable here, and that plaintiffs have not demonstrated that the Secretary's invocation of the exception constitutes an abuse of discretion, the Corps is exempt from compliance with the CWA, CZMA and CAA and judgment must be entered in its favor.

B. The Corps Need Not Comply with CWA § 404(r)

Environmental plaintiffs seek judgment that the Deepening Project is subject to CWA § 404(r) (13 U.S.C. § 1344(r)), which provides an alternative method by which the Corps could seek exception from state regulation. (D.I. 100 at 7) Environmental plaintiffs assert that the Corps must comply with the very specific process for exception provided by § 404(r). ( Id.) Specifically:

(r) Federal projects specifically authorized by Congress.

The discharge of dredged or fill material as part of the construction of a Federal project specifically authorized by Congress, whether prior to or on or after December 27, 1977, is not prohibited by or otherwise subject to regulation under this section, or a State program approved under this section, or section 1311(a) or 1342 of this title (except for effluent standards or prohibitions under section 1317 of this title), 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.

(emphasis added) Having found that the Corps is excempt from state regulation pursuant to the navigation exception of § 404(t), which contains no comparable requirements, the court need not determine whether the Corps must pursue exemption through other statutory means.

C. Motion to Stay

On October 26, 2010, environmental plaintiffs filed a motion to stay these proceedings. (D.I. 102) Environmental plaintiffs advise the court that, on October 6, 2010, the National Marine Fisheries Service ("NMFS") proposed to list Atlantic sturgeon, a fish native to the Delaware River channel, as endangered under the Endangered Species Act ("ESA"). This may result in the Atlantic sturgeon's gaining protected status under the ESA "within the next twelve months." (D.I. 103 at 13) In its Proposed Rule, NMFS made specific findings, as follows:

DNREC also requested that the court stay a decision on the merits pending its completion of the Delaware administrative permitting process. (D.I. 86 at 16-18) DNREC alternatively argued that the court should defer to DNREC under the doctrine of primary jurisdiction. ( Id. at 18) The court declined to stay in view of the impending December 1 start date for Reach B and absence of evidence that a final decision would issue prior to December 1, 2010. The court disagreed that "decision-making is divided" between itself and DNREC in this case such as would justify judicial abstention. See Global Naps, Inc. v. Bell Atlantic-N.J., Inc., 287 F. Supp. 2d 532, 549 (D.N.J. 2003). The court was tasked in this APA case with reviewing the Secretary's reading of CWA § 404(t) and decision to invoke the navigation exception therein — legal determinations outside of DNREC's purview.

Dredging and filling operations can impact important features of Atlantic sturgeon habitat because they disturb benthic fauna, eliminate deep holes, and alter rock substrates necessary for spawning. Deposition of dredge sediment has been shown to affect the distribution of Atlantic sturgeon. Dredging can also result in direct takes (killing and injuring) of Atlantic sturgeon. Such takes have the potential to affect the range of Atlantic sturgeon if the takings contribute to the extirpation of a [distinct population segment].

( 75 Fed. Reg. 61,872, 2010 WL 3881904 at *61,883) (citations omitted). With respect to the Deepening Project, NMFS provided:

While the seasonal restrictions imposed by the Delaware River Fish and Wildlife Management Cooperative may help to reduce or prevent direct take of important resident fish species (primarily the federally endangered shortnose sturgeon and other species of diadromous fishes), there is still the potential for direct impacts of [the Deepening] [P]roject on Atlantic sturgeon as they may be found in the project area throughout the year. There is the potential for indirect effects as well, such as changes in hydrology of the river, which may affect possible spawning habitat (e.g., salt water intruding further into the river). The location of spawning habitat for Atlantic sturgeon in the Delaware River has not been confirmed.

Id. at *61,884 (citation omitted). Environmental plaintiffs submit that the foregoing triggers new obligations for the Corps to: (1) conference with NMFS on the impacts of the Deepening Project on Atlantic sturgeon in the Delaware River pursuant to 16 U.S.C. § 1536(a)(4); and (2) conduct a supplemental EA or EIS on the impacts of the Deepening Project on the species. (D.I. 103 at 3)

That statute provides:

(4) Each Federal agency shall confer with the Secretary [of the Interior or the Secretary of Commerce] on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under section 1533 of this title or result in the destruction or adverse modification of critical habitat proposed to be designated for such species. This paragraph does not require a limitation on the commitment of resources as described in subsection (d) of this section.

16 U.S.C. § 1536(a) (emphasis added); see also 16 U.S.C. § 1532 (defining "Secretary").

Motions to stay invoke the broad discretionary powers of the court. See Cost Bros., Inc. v. Travelers Indent. Co., 760 F.2d 58, 60 (3d Cir. 1985).

In determining how to exercise its discretion with respect to a motion to stay, a court considers such factors as: (1) the length of the stay requested; (2) the "hardship or inequity" that the movant would face in going forward with the litigation; (3) the injury that a stay would inflict upon the non-movant; and (4) whether a stay will simplify issues and promote judicial economy. See Landis [v. North Am. Co.], 299 U.S. [248,] 254-55 [(1936)]. Generally, if there is a chance that a stay would damage the non-moving party, the party requesting a stay must make out a clear case of hardship or inequity in being required to go forward with the litigation. See id. at 255.

St. Clair Intellectual Property Consultants, Inc. v. Samsung Electronics Co., Ltd., Civ. Nos. 04-1436, 06-403, 06-404, 08-371, 08-373, 2010 WL 1213367, *3 (D. Del. Mar. 28, 2010). That is, in deciding whether to enter a stay, a court must "weigh competing interests and maintain an even balance." Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936).

The Corps has previously stated that shortnose sturgeon were not jeopardized by the Deepening Project. Environmental plaintiffs argue that the "no jeopardy" finding with respect to the shortnose sturgeon cannot automatically be attributed to the Atlantic sturgeon insofar as NMFS has noted that "Atlantic sturgeon do not have the same temporal and spatial distribution [as shortnose sturgeon]." (D.I. 103 at 12, citing 2010 WL 3881904 at *61884) ( see also 2010 WL 3881904 at *61,897, stating that "there may be less than 300 spawning adults per year for the Delaware subpopulation[.]") This is an important substantive consideration for the Corps, not the court.

In the November 2009 Memorandum of Record, the Corps provided that:

Based on recent surveys an expansion in the number and distribution of the shortnose sturgeon in the Delaware River appears likely. Consequently, there is potential for shortnose sturgeon to be in the vicinity of the Marcus Hook rock blasting area. The Philadelphia District prepared an updated Biological Assessment for the entire Delaware River Main Stem and Channel Deepening Project and formal consultation under Section of the Endangered Species Act was initiated with the National Marine Fisheries Service in letter dated 21 January 2009. NMFS provided Final Biological Opinion, dated 17 July 2009, which requires various forms of monitoring for hopper dredging, cutterhead pipeline dredging, bucket dredging, and blasting. NMFS concluded in their Biological Opinion that the project construction is likely to adversely affect but not likely to jeoardize the continued existence of the shortnose sturgeon. The Corps will implement all terms and conditions that the NMFS has made in its Biological Opinion to minimize potential adverse eflects on the shortnose sturgeon. The discovery and capture of sturgeon within the project area in itself is a new development, however it does not constitute significant new circumstance and is not a substantial change in the estuary, but the result of more intense efforts to study sturgeon within the project area. It has been known for decades that the sturgeon utilize the Delaware River as its habitat, and provisions have been made to account for, and avoid their presence in the channel.

(AR025151) (emphasis added)

Upon careful review, environmental plaintiffs do not present any ripe claims for the court's consideration. The proposed listing has just recently occurred and the Corps has yet to render any determinations. A formal conference is required if the Deepening Project is "likely to jeopardize the continued existence" of the Atlantic sturgeon, 16 U.S.C. § 1536(a)(4) — a finding yet to be made by the Corps. The Corps states that it is presently conferring with NMFS to determine its obligations under the ESA in light of the proposed listing of the Atlantic sturgeon, and may request a formal conference as discussions progress. (D.I. 104 at 5) Secondly, the Corps has not yet determined whether a SEIS is appropriate. Until this occurs, and unless the Corps determines that it will not supplement, environmental plaintiffs do not have a claim that the Corps has violated NEPA in this regard.

Judge Pisano has very recently reached the same conclusion in his order denying a similar stay in the concurrent New Jersey litigation involving these parties. (See United States District Court for the District of New Jersey ("D.N.J.") Civ. Nos. 09-5591 09-5589, D.I. 105)

As the Third Circuit has stated,

a [SEIS] is not necessary every time new information comes to light after the [EIS] is finalized. The new circumstance must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned. Thus, the key to whether a [SEIS] is necessary is not whether the area has undergone significant change, but whether the proposed [project] will have a significant impact on the environment in a manner not previously evaluated and considered.

South Trenton Residents Against 29 v. Federal Highway Admin., 176 F.3d 658, 663 (3d Cir. 1999) (internal quotations and citations omitted).

Environmental plaintiffs admit that the "full protections of the ESA do not apply until a species is actually listed," but suggests that the Corps should "fully engage in a formal conference process with NMFS to ensure that the next phase of the Deepening Project does not jeopardize Atlantic sturgeon in violation of ESA Section 7 or unlawfully take the species directly or through habitat destruction in violation of ESA Section 9," or, "out of prudence determine to alter or modify the Deepening Project to avoid jeopardy to the [] Atlantic sturgeon even prior to the species' final listing." (D.I. 103 at 10, 13) It is not within the purview of the court to compel the Corps to formally conference with NMFS or to alter or modify the Deepening Project, nor will the court issue an advisory opinion on these matters. The Secretary of Commerce has one year to render a final decision regarding the Atlantic sturgeon, which may be extended by up to six months if there is "substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination or revision concerned." 16 U.S.C. § 1533(b)(6). There is no indication that the Corps is ignoring its present obligations. Environmental plaintiffs' claims will ripen should the Corps fail to meet these or future obligations.

Section 9 of the ESA makes it unlawful to "take" any endangered species of fish or wildlife without permission from the appropriate federal agency. 16 U.S.C. §§ 1538(a)(1)(B); 1539. A "take" includes any action that may "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" such species "or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19).

While plaintiffs' claims are premature at this juncture, defendants have articulated compelling reasons why a stay should not issue. The PRPA is an agency of the Commonwealth of Pennsylvania with a mission to foster and to promote the economic vitality of the Port of Philadelphia and other regional ports. See 55 PA. STAT. ANN. §§ 697.1-697.24. As discussed in the court's prior opinion, the combined Delaware River ports "currently support an estimated 75,000 jobs, generate billions in terms of economic revenue and payroll wages, and contribute more than $150 million in state and local taxes." See Prelim. Inj. Op'n, 681 F. Supp. 2d at 549. Shipping companies are investing in fleets of deeper draft ships; accommodation of such vessels will require shipping channels to be at least 45 feet deep. See id. at 550, n. 2. Other east coast ports have already conducted deepening projects in this regard. Id. As Judge Pisano has stated,

shippers are at this time determining whether to continue conducting business at ports that cannot accommodate the deeper draft vessels, such that further delaying the deepening project by staying the proceedings would have a real adverse impact on the economic vitality of the PRPA's constituents. Similarly, a stay of proceedings would harm the Corps by delaying its Congressionally-authorized deepening of the Delaware shipping channel.

(D.N.J. Civ. Nos. 09-5591 09-5589, D.I. 105) Based on the foregoing, the court finds that plaintiffs have not met their burden of persuasion that, on balance, a stay is favored in this case. Plaintiffs' motion is denied.

In reaching the same conclusion, Judge Pisano also factored in this court's injunction preventing the Corps from proceeding with dredging until the summary judgment motions were decided. Because the court has denied plaintiffs' motions for summary judgment, the court does not consider the injunction in its balancing of facts but, nevertheless, finds that a stay is unwarranted under the present circumstances.

V. CONCLUSION

For the foregoing reasons, the court denies DNREC's motion for summary judgment or, in the alternative, for a stay of proceedings (D.I. 85); denies environmental plaintiffs' motion for summary judgment (D.I. 89); grants PRPA's cross-motion for summary judgment (D.I. 94); and denies environmental plaintiffs' motion to stay proceedings (D.I. 102). The court will remove the injunction entered on January 27, 2010 with respect to the remaining reaches of the Deepening Project. An appropriate order shall issue.

ORDER

At Wilmington this 16th day of November, 2010, consistent with the memorandum opinion issued this same date; IT IS ORDERED that:

1. DNREC's motion for summary judgment or, in the alternative, for a stay of proceedings (D.I. 85) is denied.

2. Environmental plaintiffs' motion for summary judgment (D.I. 89) is denied.

3. PRPA's cross-motion for summary judgment (D.I. 94) is granted.

4. Environmental plaintiffs' motion to stay proceedings (D.I. 102) is denied.

5. The court will remove the injunction entered on January 27, 2010 with respect to the remaining reaches of the Deepening Project.

6. The Clerk of Court is directed to enter judgment in favor of defendant PRPA and against plaintiffs DNREC and intervenor-plaintiffs Clean Water Action, Delaware Nature Society, Delaware Riverkeeper Network, National Wildlife Federation, NJEF, and The Delaware Riverkeeper.

7. Should the court receive no objections thereto, the court will enter judgment in favor of non-moving defendants on November 23, 2010.