It’s been nearly four months since Gov. Ruth Ann Minner put her signature to the fiscal 2006 Bond Bill, and in so doing, cleared the Department of Natural Resources and Environmental Control (DNREC) to move forward with dredging the Assawoman Canal.
It’s been longer than that since the Sierra Club took legal action against DNREC to stop that dredging — but the matter now appears to be headed back toward litigation once again.
The canal, roughly 4 miles in length, runs south-southeast from the Indian River Bay to the Little Assawoman Bay, near South Bethany.
By way of a brief history: Area settlers hand-dug the canal more than 100 years ago, primarily to provide better access to the communities that would one day become Ocean View and Bethany Beach. It was neglected for years thereafter, but partially drag-lined (dredged from the banks) in the mid-1950s.
By the 1980s, the bridges crossing the Assawoman Canal were falling into disrepair, and local Sen. George Howard Bunting (a state representative at the time) pushed for improvements, including increased clearances under the bridges to accommodate the passage of medium-sized craft.
Nearly 20 years later, DNREC is still trying to accomplish phase two — dredging the partially silted-in canal to allow for the passage of those medium-sized craft.
The Sierra Club has argued against the dredging throughout that period, alleging DNREC’s lack of scientific rigor in evaluating environmental impacts, and its lack of economic rigor in assembling a cost-benefit analysis. And, DNREC hasn’t helped its own case, finding itself forced to withdraw from a 2004 Sierra Club appeal due to a paperwork foul-up.
Moving on to modern history, DNREC and the Sierra Club wrapped up another appeals process in May 2005.
Following receipt of the attorneys’ final briefs, members of the state-appointed Environmental Appeals Board (EAB) gave everyone a heads-up — they were going to remand the decision to issue the permit back to DNREC leadership. Late in the game, the EAB had determined DNREC’s cost-benefit analysis left something lacking.
But before the board released that formal document, state legislators added “epilogue language” to the fiscal 2006 bond bill — Section 81.
Section 81 states: “It is the express finding of the General Assembly that the benefits of dredging and maintaining the Assawoman Canal exceed the costs of such project and [DNREC] is hereby directed to initiate all necessary actions to dredge the Canal…”
Minner signed off in the wee hours of July 1. The EAB didn’t issue its final order and decision until July 26. And attorneys for the Sierra Club have been stewing over what they consider a short-circuited appeals process, ever since.
On Oct. 20, they decided it was time to act. Although DNREC hadn’t actually started dredging, Mid-Atlantic Environmental Law Center (MAELC) attorney Ken Kristl said it appeared work was about to commence.
Kristl handled the appeal before the EAB, and attorney Albert Greto will represent the Sierra Club in this new phase. Greto filed the motion for a temporary restraining order and a preliminary and permanent injunction on Oct. 20.
From Greto’s motion: “DNREC has in fact not prepared such a cost-benefit analysis or otherwise complied with any of the provisions and instructions of the remand contained within the EAB order, but instead relies upon the language of (Section 81) to justify its failure to comply with the remand instructions in the EAB Order.”
Greto goes on to say in his motion that the defendants’ reliance on Section 81 doesn’t cut it because: (A) Section 81 is unconstitutional in that it violates the separation-of-powers doctrine, (B) and it is unconstitutional in that it violates the section of the Delaware Constitution, related to petition for redress of grievances.
Small said there’d been considerable legal interpretation, on both sides of the issue. However, DNREC had asked for advice from the state Attorney General’s office, he said, and Deputy Attorney General Robert Phillips had spent a good deal of time studying the matter
In Phillips’ written opinion, addressed to state Controller General Russell Larson, he explains: “Because we have concluded that Section 81 was intended to create project-specific exceptions to the permitting requirements of the relevant environmental statutes, it is our opinion that Section 81 controls over the EAB’s order.”
Further, Phillips cites Robertson v. Seattle Audubon Society (1992), where the U.S. Supreme Court upheld Congress’ enactment of an appropriations bill which approved two federal agencies to move forward with their plans, despite the fact that there were at least three lawsuits pending on the matter.
Quoting from that federal appropriations bill, Phillips wrote: “The Congress hereby determines and directs that management of areas according to [agency plans] on the thirteen national forests…is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the [pending lawsuits]...
“Robertson had quite similar facts and therefore supports our above-stated conclusion,” he continued. “Supreme Court approved, in an appropriations bill, a congressional declaration that the plans of two federal agencies met certain statutory requirements and thereby ended controversial litigation over those requirements.”
“The epilogue language in the Bond Bill seemed pretty clear, to us,” Small pointed out.
When asked what the Assawoman Canal dredging project had cost the department in legal and permitting fees to date, he said he couldn’t tell – but he did say the cost was “considerable and growing.”
This being a particularly Sussex County affair, the Sussex County branch of the Delaware Court of Chancery will handle the case, with head Chancellor and Dagsboro native William B. Chandler III presiding.
According to Chandler’s office and per normal procedure, Greto and company will now formally file a stipulated briefing schedule and order, after which DNREC’s attorneys will file an answering brief.
Then it’s back to Greto for a reply brief, after which Chandler and attorneys from both sides will get together to schedule the hearing for sometime in late November. Chandler would typically make his ruling on the temporary restraining order at that time.