Attorneys for the Sierra Club will reargue the case to halt dredging of the Assawoman Canal in front of a full Delaware Supreme Court panel at 1:45 p.m. on Wednesday at the court off The Green in Dover.
Ken Kristl, an attorney with the Widener Law School in Wilmington, led the arguments in early December, claiming that the General Assembly had violated the “separation-of-powers” doctrine by approving funding for the project before a state board had ruled on an earlier appeal.
Only three Supreme Court Justices heard the December appeal of a Court of Chancery decision; a full panel of five will be on hand Wednesday. The re-argument is a result of a court order to have a full bench hear the appeal.
“We just have to do it again,” Kristl said this week, adding that his presentation will mirror the one he delivered on Dec. 6.
The Sierra Club, an environmental organization with a strong presence locally, has opposed the project for nearly a decade and claims that deepening the man-made canal would harm wildlife in there and only benefit property owners and pilots of larger boats, which could speed through the small throughway if it is deepened.
Rep. Gerald Hocker (R - 38th), a strong proponent of the project, has consistently argued the opposite. The canal has been too shallow to support much life or spawning in the canal, he says — a point strongly contended by local Sierra Club members.
Hocker’s camp prevailed — at least briefly — when dredging began on Oct. 1 of last year in the face of an ongoing appeals process.
Officials plan to dredge about two-thirds of the man-made canal to make the average depth 3 feet at low tide, state officials have said, allowing larger boats to navigate the shallow waterway. The project should take two to three years to complete because officials are only allowed to dredge from Sept. 1 to Dec. 31 to minimize wildlife impacts.
Those working on the project completed more than 30 percent of the dredging last year before breaking at the end of December. They plan to resume work on Sept. 1.
Kristl argued on Dec. 6 that the Environmental Appeals Board had already made known its decision to halt the project in lieu of another cost-benefit analysis before legislators approved it as a part of the 2006 bond bill on June 30, 2005. An official decision was not filed until July 26, 2005.
“Separation of powers is about protecting the judicial process,” Kristl told the court Wednesday. “The fundamental thing separation of powers is trying to protect against is the General Assembly encroaching on the judicial process. The process is what has to be protected.”
Bob Phillips, the state’s attorney representing the Delaware Department of Natural Resources and Environmental Control, its Secretary John Hughes and Deputy Secretary David Small, argued that the legislature had the right to approve funding because an official decision was not yet rendered.
“The legislature has the right to change the underlying statute,” Phillips said Wednesday, adding that if the court accepted the unofficial decision as a decision, the case against Kristl’s separation of powers argument would be a much tougher one to make. “They appropriated the dollars and wanted to get it done. I think that Section 81 is the result of the fact that this has taken 16 years,” he added of the portion of the bond bill containing funds for the dredging project.
The insertion of funds into the bond bill muted the EAB order and allowed dredging to begin this fall, without the additional cost-benefit analysis. In denying an earlier appeal, Chancery Court Chancellor William B. Chandler addressed the EAB order and questioned its value.
“The EAB order made it clear that the result of DNREC’s amended cost-benefit analysis had no bearing whatsoever on the environmental effects of the dredging. Moreover, the EAB order acknowledged that the required cost-benefit analysis would not itself influence whether the dredging would proceed. The decision to go forward with the dredging project, the EAB correctly observed, remained with the Legislature,” Chandler wrote in his June, 2006 denial of the Sierra Club’s request for a half to the dredging.
Kristl disagreed when he argued in December that environmental impacts could be studied through another cost-benefit analysis because of maintenance needed, for instance, if boats — which could fit in deeper waters — do not follow wake laws and those wakes erode the banks of the man-made canal.