(Published in The Press of Atlantic City on Wednesday, Sept. 9, 2009.)
The U.S. Army’s top civil works official authorized the Army Corps of Engineers on his last day in office to deepen the Delaware River shipping channel without Delaware’s approval.
John Paul Woodley, former assistant secretary of the Army for civil works, invoked a little-used federal power that would allow the Army Corps to begin deepening the channel without a Delaware permit, despite the channel traveling through Delaware waters.
Delaware Department of Natural Resources and Environmental Control Secretary Collin O’Mara rejected the Army Corps’ application for a subaqueous lands permit July 23, apparently freezing the long-planned project, but Woodley’s decision could throw that into doubt.
Army Corps spokesman Ed Voigt said officials have not decided to move on without Delaware’s approval, and Woodley’s memo still urged the securing of a Delaware permit.
“It’s not directing what we do,” Voigt said Tuesday of the memo. “It’s allowing a course of action.”
The long-planned project would deepen the channel, which spans from about six miles west of Cape May Point north to the Port of Philadelphia, from 40 to 45 feet.
Supporters say it would create jobs and allow larger ships to travel up the channel to the Port of Philadelphia, thereby increasing business there. Critics say it would loosen contaminants from the riverbed and dump spoils almost entirely in New Jersey. A U.S. Government Accountability Office report found the project would return only 50 cents on every dollar invested.
E-mails and memos obtained through a Freedom of Information Act request by the Delaware Riverkeeper Network showed Army Corps officials pressed Woodley to invoke two seldom-used sections of the Clean Water Act to supersede Delaware’s permit rejection.
Woodley’s April 30 memo shows just how seldom the power was used.
“Moreover, I am aware of only one other instance where any Department of the Army official ever has invoked Federal supremacy under 404(t) and 511(a); in that instance, Federal supremacy was invoked to protect interstate navigation,” Woodley wrote.
Lance Wood, assistant chief counsel of the Army Corps’ environmental law and regulatory programs, advised Philadelphia district officials that Woodley’s replacement was unlikely to take such action, according to a Feb. 5 e-mail from Barry Gale, an attorney for the Army Corps’ Philadelphia district.
“(Wood) says we must act quickly because Woodley’s days are numbered and an acting ASACW or a new Obama ASACW is not likely to support such action,” Gale wrote to Army Corps officials, including Lt. Col. Thomas Tickner, head of the Army Corps’ Philadelphia district.
Woodley, an appointee of former Republican President George W. Bush, served his last day in office April 30, the same day he authorized the action. His interim replacement, Terrence Salt, the principal deputy secretary of Army civil works, likely would not have signed the memo, nor likely would a permanent replacement, according to Gale.
Jo-Ellen Darcy, a former environmental policy adviser to two U.S. Senate committee, assumed the permanent role last month.
“Mr. Salt was also at the meeting,” Gale wrote in a May 1 e-mail to Tickner about an April 30 meeting with Woodley. “He did not seem overly enthusiastic about the 404(t)/511(a) memo. I did not get the feeling that he would have signed it if it were up to him.”
Delaware officials are optimistic the Army Corps will respect Delaware’s authority rather than begin work without the state’s permission. Melinda Carl, a spokeswoman for the Delaware Department of Natural Resources and Environmental Control, noted that Woodley’s decision predates Delaware’s rejection of the key permit required for the deepening project, which had been delayed six years.
“We continue to work with the Corps and have every confidence that they will pursue the permit that they need to do the main channel deepening project,” Carl said.
If they do not, the Delaware Riverkeeper Network will take legal action to stop the deepening, Delaware Riverkeeper Maya van Rossum said.
Her organization has won such challenges before. In 2007, less than a month after it sued the U.S. Army over its plans to dispose of the lethal Vx nerve agent waste at a DuPont facility along the Delaware River, the proposal collapsed.
Van Rossum described Woodley’s decision and the lobbying behind it as “calculated, manipulated, behind closed doors, under cover of night,” and said that has been the case throughout the project.
Pennsylvania government agencies, which support the project, gained sponsorship of the project only after a deal between Pennsylvania Gov. Ed Rendell and New Jersey Gov. Jon S. Corzine that dictated dredge spoils would not be dumped in New Jersey.
The Army Corps and Philadelphia Regional Port Authority later refused to honor the deal, and Rendell said he had no power to make them.
The spoils are now set to be dumped mostly at federal sites in southwestern New Jersey.
Daniel Walsh 