Victor Singer's Submission RE: Delaware River Dredging Project by the U.S. Army Corps of Engineers

RE: July 13 & 14, 2010 Public Hearing on the Delaware River Dredging Project by the U.S. Army Corps of Engineers
Dear Folks at DNREC:

SUMMARY: From the start of DNREC's handling of the Corps of Engineers' Dredging Proposal, I have been troubled by the general absence of news media mention of the relevance of Delaware's Coastal Zone Act. But the notion that it was only a journalistic omission provided an easy excuse for not looking further to ascertain that it's nothing more.

Secretary O'Mara's 6/15/2010 letter to the Corps of Engineers brings me briskly to recognition that there's MORE to it than just journalistic omission. It appears to me that DNREC has disregarded a key element of the Coastal Zone Act and the Coastal Zone Regulation (therein authorized), or at least is giving that element less weight than is appropropriate. The purposes of this statement are therefore:

• To point out what I regard as error by DNREC in its handling of the dredging project;
• To suggest immediate correction; and
• To ask for an explanation from DNREC as to why the error occurred in the first place if indeed it is error, or why DNREC thinks it isn't error. (In this sense, "error" may be singular or plural.)

DETAILS: My remarks for this Hearing reflect my own thoughts. I have neither asked for nor received comments or endorsements from any of the boards, commissions or other organizations that I am or have been a member of. I have given careful attention to ongoing news coverage of the Corps of Engineers Dredging Project for about a decade. I use the word "careful" because I am perahaps more interested than most news readers and listeners. I have been a member of Delaware's Coastal Zone Industrial Control Board since early 1998 when I was appointed Chairman of the New Castle County Planning Board.

Before me is a copy of DNREC Secretary O'Mara's June 15, 2010 letter to Lt. Col. Tickner (US Army Corps of Engineers Philadelphia District). This letter announces the July 13 & 14 public hearing dates and lists "Issues which should be provided and/or addressed in further detail" for the hearing. In particular, I am drawn to "Attachment 1: Comments Re: Kelly Island" in the letter, where the following language appears, quarreling with the balance between environmentally damaging and environmentally beneficial aspects of what the Corps proposes: ". . . we have not been provided with any quantitative data that indicates that the benefits will outweigh the environmental cost." The notion that there ought to be more environmental good than harm is more than just nice.

As I understand the Delaware Coastal ZoneAct ("CZA") and the Regulations Governing Delaware's Coastal Zone ("the Reg"), adopted in 1999 under CZA authorization, the environmental benefits MUST outweigh the negative impacts. But my understanding is that that requirement applies to the project as a whole - - or at most to the portion of the entire project that is within Delaware's boundaries - - rather than separately to its several parts. Of course, my interpretations of the law could be wrong - - after all, I'm not a lawyer; I'm only a retired rocket scientist. In that light, however, I have been troubled that I have seen nothing in the ongoing news coverage of the dredging project suggesting that DNREC's treatment of the Corps' application since its submission about a decade ago reflects the CZA requirements, which apply of course cumulatively with other relevant law at both the Federal and State levels.

Obviously, all of the dredging project that is within the State of Delaware is within Delaware's Coastal Zone. But applying the CZA and the Reg to the dredging proposal could well be distasteful to those who are completely opposed to the entire project because among the purposes stated at the very outset of the CZA is the following: ". . . to strike the correct balance between [two policies], encourag(ing) the introduction of new industry into Delaware, [and] the protection of the environment, natural beauty and recreation potential of the State . . .". (Ref. 7 Del. C. 7001) That language prevents absolute disapproval of the dredging application except on a finding that the application would enable new heavy industry or bulk product transfer operations not entitled by grandfathered rights. (The CZA enables expansions or extensions of forbidden activities if they began before enactment of the CZA. The Delaware River was used for shipment of commercial cargo long before the CZA.)

The Reg doesn't set a standard for damage control. But it contains features that could be useful as regulatory devices:

• Under Section 8.0 (also known as Section H) Permitting Procedures, Section 8.1.4 (AKA Section H.1.d) requires an Environmental Impact Statement complying with Section 8.2 (AKA Section H.2); and Section 8.1.10 (AKA Section H.1.j) requires an offset proposal if required under Section 9.1.1 (AKA Section I.1.1)
• Under Section 9.1.1 (AKA Section I.1.1) says: "Any application for a Coastal Zone permit for an activity or facility that will result in any negative environmental impact shall contain an offset proposal. Offset proposals shall more than offset the negative environmental impacts associated with the proposed project or activity requiring a permit. It is the responsibility of the applicant to choose an offset project that is clearly and demonstrably more beneficial to the environment in the Coastal Zone than the harm done by the negative environmental impacts associated with the permitting (sic) activities themselves."

Counting on the CZA as the basis for dealing with the dredging proposal would, in my untrained view, be advantageous because it brings with it several prior Court decisions. In particular, the Norfolk Southern (et al) case involving a proposal to lighter coal at Big Stone Anchorage comes to mind. It was the culmination of actions in several lower tribunals. The final decision was by the US Court of Appeals for the 3rd Circuit (a three judge panel, that I think is called "en banque")(filed 6/30/87, on Case No. 86-5322)(822 F.2d 388; U.S. App. Lexis 8295; 26 ERC (BNA) 1193; 1987 AMC 2896; 17 ELR 20941). The panel's decision was on Norfolk Southern's appeal from a prior decision by the US District Court for the District of Delaware, D.C. Civil No. 84-0330) in which the judge denied summary judgment to Southern on dormant Commerce Clause grounds, and found that Congress, thru the CZMA (Coastal Zone Management Act, at the federal level) had consented to the Delaware Coastal Zone Act and thus the CZA was immune from Commerce Clause scrutiny. This finding was the basis for granting summary judgment to the defendants.

The appeal followed. The two sentence Conclusion and the paragraph just before it, are particularly worth repeating here: "In essence, Norfolk Southern's arguments reduce to an assertion that increasing coal exports is in the national interest and that Delaware, in seeking to protect its own environment, has struck an unwise balance between these competing interests. In our view, the dormant Commerce Clause does not authorize a federal court to engage in the kind of broad-based 'national interest balancing' requested by Norfolk Southern. Balancing the societal value of decreasing unemployment in the Eastern coal mines and shrinking the size of the trade deficit against the societal value of protecting the coastal zone is within the province of the Congress. In contrast, the Commerce Clause, as applied by the judiciary, acts as a limitation on the authority of the states designed to preclude the establishment of protectionist state barriers that would threaten the operation of the federal union. We conclude that Section 7003 of the CZA was not immunized from Commerce Clause review by the CZMA. We further hold that Section 7003 of the CZA does not violate the dormant Commerce Clause. Thus, we will affirm the order of the district court granting summary judgment for appellees."

The words of that decision seem to be exactly applicable to the current Corps of Engineers dredging application. But relying on that Norfolk Southern decision, by a three judge panel of the US Court of Appeals for the 3rd Circuit, requires some sort of explanation as to why it hasn't been relied upon earlier - - unless it HAS BEEN - - as well as why other features of the CZA were not given weight earlier - - unless they HAVE BEEN. In particular, what comes to mind is the last sentence of 7 Del. C. 7005, which requires a DECISION on an application 90 DAYS after submission. The dredging application has been festering for more than 90 MONTHS.

Yours very truly, Victor Singer