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Delaware Dept. of Natural Resources & Environmental Control v. U.S. Army Corps of Engineers

ELR Citation: 42 ELR 20147
Nos. 11-1283 et al., (3d Cir., 07/03/2012)

The Third Circuit held that a U.S. Army Corps of Engineers complied with NEPA, the CWA, and the CZMA in its decision to deepen the main channel of the Delaware River by five feet. The Corps' 2009 EA was neither arbitrary nor capricious. The Corps complied with the procedural requirements prescribed by NEPA and its corresponding regulations, and it took the requisite “hard look” at the environmental impacts of the project. Nor did the Corps' decision to proceed with the deepening project violate the CWA. Although the Corps never secured water certifications from the states of New Jersey or Delaware for the project under CWA §401(a), the project was authorized by Congress. As such, the “congressionally authorized” exception under §404(r) applies. Likewise, the Corps was statutorily exempt from having to follow states' environmental laws under CWA §§313 and 404(t).  And the Corps' determination that it need not provide supplemental consistency determinations to either state under the CZMA was reasonable.