PHILADELPHIA - A federal judge has blocked plans to dredge the Delaware River to accommodate a proposed port in Delaware, finding the U.S. Army Corps of Engineers "did not engage in reasoned decision making" when approving the project.
Noting he wasn't substituting his thoughts on the project for the Corps', Judge Mark Kearney on Oct. 28 nevertheless found fault with its procedures. Three Pennsylvania ports filed suit over the issue, arguing Delaware wanted to reap the benefits from a larger dredging project despite opposing it first.
Pennsylvania and the federal government are paying for a deepening project for the Main Navigation Channel of the Delaware River, which would allow large ships to have new access to Pennsylvania.
Delaware spent nothing and litigated against the MNC but once it was approved sought to benefit from it with a container port in Edgemoor, PhilaPort and two other plaintiffs claimed. PhilaPort had to contribute about $140 million but was worried the Delaware port would hurt its return on that investment.
The issue is complicated by where Edgemoor sits on the river. A tight turn near the shoreline necessitates deepening the river to 45 feet to give ships water and room to turn around and deliver their cargo.
In March 2020, Diamond State applied for a permit for an access channel - a 1,700-foot diamter turning basin - between the existing Delaware River Navigation Channel and the Edemoor port that it said would increase trafic to Wilmington ports by 55% and net the state $383 million a year.
It provided environmental plans when it applied with the Corps of Engineers. PhilaPort submitted comments shortly after that said Diamond State hadn't applied for dredged material disposal permits, among other things.
An amended plan was approved by the Corps in June 2022 and the group recommended the Distict Commander do the same, which it did in August 2022.
Kearney vacated one of the permits because the Corps relied on traffic data submitted by Diamond State while dismissing concerns raised in comments and found safety concerns were "not applicable."
Another permit was vacated because the Corps did not determine if Diamond State sought a Statement of No Objection from PhilaPort. Kearney wrote the Corps can reconsider the permits with his findings in mind, like the Corps should have assessed the turning basin as a design element of the Edgemoor project.
"The Corps argued before us it would be usurping the role of the Coast Guard if it reviewed the turning basin. We disagree," Kearney wrote.
"Both the plain language of the statutes at issue and the Corps' own regulations requiring the consideration of navigation as a public interest factor required the Corps assess the use of the turning basin as a design element of the project plan."
The Corps also did not fully evaluate the navigation public interest factor, Kearney wrote. The Corps wrote the turning basin will not impact navigation in the Delaware River but comments said otherwise, he wrote.
"The Ports' comments included an analysis by Captain Kichner detailing specific concerns with the Feasibility Study," Kearney wrote.
"Captain Kichner highlighted international authorities on navigation recommend no turning basin intrude on a deep draft channel and expressed concern the Feasibility Study did not account for the size of various vessels using the main Channel as they pass Edgemoor and did not conduct a simulation assessing the impact of a turning basin across the entirety of the main Channel on traffic in the main Channel."