A federal appeals court has rejected challenges to a decades-long project by the U.S. Army Corps of Engineers to deepen the Delaware River in a ruling that will enable Philadelphia and other river ports to compete for business with the newest generation of ocean-going cargo vessels.

On July 3, 2012, a three-judge panel of the Third Circuit Court of Appeals upheld rulings by federal judges in New Jersey and Delaware that rejected arguments by the states of New Jersey and Delaware and environmental groups.

Ballard Spahr represented the Philadelphia Regional Port Authority (PRPA) and the Commonwealth of Pennsylvania in urging the courts to hold that the Army Corps had fully complied with environmental laws at every step. The PRPA and the Commonwealth have strongly supported the deepening project as significant for regional economic development, and have already committed tens of millions of dollars to help move it forward.

The appellate court’s decision in State of Delaware v. U.S. Army Corps of Engineers is legally significant because it marks the first time that a court has analyzed a provision of the Clean Water Act (CWA) that clears restrictions that might otherwise apply to projects that are deemed necessary to “maintain navigation.”

Ballard Spahr attorney Harry Weiss argued the appeal for the PRPA and was joined on the brief by Ballard Spahr attorneys Beth Moskow-Schnoll, Michael C. Duffy, and Marlene S. Gomez.

The State of Delaware now supports the project and therefore did not appeal after the lower courts refused to issue an injunction. But New Jersey and the environmental groups continued to argue that the Corps, among other things, failed to conduct all of the proper environmental studies under the National Environmental Policy Act (NEPA).

The appellate court concluded that the Corps had complied with all state and federal environmental laws.

Judge Anthony J. Scirica wrote: “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 [Coastal Zone Management Act].”

When finished in 2015, the project will result in the deepening of the main channel by five feet (from 40 to 45 feet). The increased depth will enable the ports along the Delaware River to attract a newer generation of ocean-going cargo vessels with deeper drafts. To date, ports up and down the East and West coasts, including New York Harbor, have deepened shipping channels in anticipation of these larger vessels, which will soon include vessels being specifically designed to take advantage of widening of the Panama and Suez canals.

Major shipping companies are today making decisions as to where to do business, and it is the general view of shipping and port executives that ports with shipping channels shallower than 45 feet will be marginalized in the competition for the new vessel traffic.

For more information, contact Harry Weiss at 215.864.8129 or weiss@ballardspahr.com, Beth Moskow-Schnoll at 302.252.4447 or moskowb@ballardspahr.com, or Michael C. Duffy at 215.864.8248 or duffym@ballardspahr.com. 


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