Mid-Atlantic Environmental Law Center

Center Argues Case Before Delaware Supreme Court

On December 6, 2006, the Center argued its appeal of the dismissal of the Sierra Club’s challenge to the dredging of the Assawoman Canal in Southern Delaware. In May 2005, before the Environmental Appeals Board, the Center secured a remand of a permit to dredge the Canal because of the failure of Delaware’s Department of Natural Resources and Environmental Control to conduct a proper cost/benefit analysis and to consider mitigation of the adverse effects of increased boat traffic in the Canal. The Delaware General Assembly attached a rider to its appropriations bill that sought to reverse the May 2005 decision. The Department then decided it would dredge without complying with the Remand instructions in reliance on the rider—a legislative interference that violated the separation of powers doctrine. After the Chancery Court rejected the Center’s challenge, a three-judge panel of the Supreme Court heard arguments on the separation of powers issues. On February 14, 2007, the Court heard re-argument of the case with five judges participating. Despite the Center’s best efforts, the Court has determined that the Delaware legislature has the authority to override the administrative procedure process that it has authorized in the form of the Environmental Appeals Board.

Opposing the Deepening of the Assawoman Canal

The Center is working with the Delaware Chapter of the Sierra Club to oppose DNREC's plans to dredge the Assawoman Canal, located in southern Sussex County, Delaware. The Sierra Club and others are concerned about the proposed dredging's adverse environmental impact.

Assawoman Canal Update: Center Seeks Restraining Order to Block Legislative Interference

Before the Delaware General Assembly broke for summer recess in June 2005, it included a provision (§ 81) within the Bond Bill directly aimed at the Assawoman Canal Dredge project. Without holding hearings of any kind, the legislature "found" that the benefits of the dredging outweigh the harms, and directed DNREC to proceed with the project. Governor Minner signed the bill. In late September, DNREC announced that it believed § 81 required it to proceed with dredging despite its complete failure to comply with the Environmental Appeal Board's Order. The Center has now sued DNREC, seeking injunctive relief on the basis that dredging without complying with the EAB Order violates the underlying statute and denies the Sierra Club its right to appeal without due process of law. The Center's complaint directly takes on § 81, arguing that it is unconstitutional because it violates the separation of powers doctrine and the Delaware Constitution's requirement that all legislation be limited to a single subject.

See the Press Release ( pdf

26.58 Kb) on Delaware Chancery Court Lawsuit

Hard-Won Remand Keeps Assawoman Canal Dredging on Hold

In May 2005, the Center, on behalf of the Sierra Club, obtained a critical ruling that continues to thwart the conversion of the Assawoman Canal, a narrow, six-mile long waterway linking Indian River Bay with Little Assawoman Bay in Sussex County, Delaware, from a tranquil recreational passageway into an environmentally destructive, powerboat-dominated channel. In the summary ruling, the Delaware Environmental Appeals Board (EAB) remanded the third state permit to dredge the Canal back to the Department of Natural Resources and Environmental Control (DNREC) and ordered the performance of an appropriate cost-benefit analysis. The order comes after the Center actively participated in two days of evidentiary hearings in February and March 2005 before the EAB in Dover, and filed subsequent written closing arguments. One of the Center's central arguments was that the cost-benefit analysis provided by DNREC was completely insufficient, inflating benefits and omitting significant categories of costs that would have otherwise shown that the project does not meet regulatory requirements. The Board appears to have adopted the Center's reasoning in its decision, although the full opinion will be forthcoming in the weeks ahead.

MAELC has represented Sierra Club in the effort to prevent the dredging of the Assawoman Canal for several years. In 2001, the Center successfully urged the Secretary of DNREC to recuse himself because of his previous involvement in the process. In 2003, MAELC appealed the second state permit to dredge the Canal (the first expired before the dredging could begin). After MAELC presented its case-in-chief during an April 2004 EAB hearing, DNREC withdrew the second permit. The latest proceedings deal with a new state dredging permit issued in August 2004. While the Canal's current shallowness restricts use to canoeing, kayaking and birdwatching, the permits seek to allow DNREC to dredge a channel through the Canal that would allow motor boats and jet skis to pass between the bays. Evidence presented at both the April 2004 and February/March 2005 hearings showed that the dredging would likely result in increased shoreline erosion, damage to essential fish habitats and hibernating diamondback terrapins in the Canal, and increased pollution in the Canal itself and in Little Assawoman Bay.

History

In October 1989 the State applied for, and in June 1990 received, a land grant for the canal and adjoining property from the U.S. Department of Interior, through the U.S. Park Service, as state parkland. The Division of Parks and Recreation of DNREC maintains the property. In 1995, DNREC granted itself a state Subaqueous Lands Act ("SLA") permit to dredge the canal, and applied to the U.S. Corps of Engineers for a CWA § 404 permit for the project.

In May 2001, the Center sent DNREC a letter ( pdf

5.43 Kb) on behalf the Sierra Club noting the SLA permit had expired, and urging DNREC to reapply if it elected to go forward with the project. DNREC agreed on both matters, and has announced its intention to apply for a new SLA permit.

On November 25, 2002, the Center provided comments ( pdf