When the Delaware General Assembly approved funding to begin the Assawoman Canal dredging project as a part of the 2006-fiscal-year bond bill, it violated the separation of powers doctrine, the guiding principal for U.S. government, argued an attorney in Delaware Supreme Court on Wednesday, Dec. 6.
Through its attorney, Kenneth Kristl, the Sierra Club — an environmental protection organization — presented another argument Wednesday to halt the project, which started in October after 16 years of strife. Attempts by the Sierra Club to stop the project in Delaware Chancery Court have already been denied twice.
The General Assembly made an 11th-hour addition to the 2006 bond bill to approve the project after the state’s environmental appeals board had already made a decision to halt the project — at least for a little while — Kristl argued Wednesday. The bond bill was approved on June 30, 2005. An official EAB order was not entered until July 26 of last year.
Still, Kristl said, an e-mail written on May 10, after the EAB hearing, contained the unofficial decision — a point not disputed by the state. The court did not make a ruling Wednesday and one is not expected for a couple of months.
“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.
With its decision, the EAB had ordered that the state perform another cost-benefit analysis before starting the project but dismissed any environmental impacts. The insertion of funds into the bond bill muted the order and allowed dredging to begin this fall, without the additional analysis.
(Kristl said 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.)
In one of two denials by the Chancery Court to halt the project because of possible environmental impacts, Chancellor William B. Chandler addressed the EAB order, questioning 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’s June decision reads. That same logic was presented by the court Wednesday.
Officials plan to dredge about two-thirds of the man-made canal to make the average depth 3 feet at low tide, DNREC officials have said, allowing larger boats to navigate the shallow waterway. The project should take 2-3 years to complete because officials are only allowed to dredge from Sept. 1 to Dec. 31 to minimize wildlife impacts. Those impacts, along with many other issues, have been at the center of the debate between the Sierra Club and the state for more than a decade.
“It’s something that is needed to be done,” said state Rep. Gerald Hocker (R–Ocean View). “I’ve been pushing for it.” Hocker has been a supporter of the project for years, along with state Sen. George Bunting (D–Bethany Beach), countering claims by the Sierra Club.
“It’s so shallow fish can’t even spawn in the canal,” Hocker said. “At one time, the Little Assawoman bay had fish, had clams. Those days are over. There is nothing there. It all needs to be maintained. We got to increase the flow, and this will help it.”
Steve Callanen, an Ocean View resident and active Sierra Club member, denounced Hocker’s comments.
“It’s going to destroy wildlife, dredging the canal,” Callanen said. “(The dredging project) is motivated by the property owners that feel they can increase their value of their property by getting the canal dredged.”