Delaware Department of Natural Resources & Environmental Control v. United States Army Corps of Engineers

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

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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

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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.

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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

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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

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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

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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