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Litigation
A river has no right to defend itself in a court of law, so the Delaware River needs attorneys who are willing and able to pursue legal action on behalf of the River and its affected communities. A river’s needs too often go undefended and its enemies unchallenged due to lack of access to legal and scientific resources needed to effectively take on the challenge. In the Delaware River Watershed, Delaware Riverkeeper Network has stepped up to defend and give voice to our treasured Delaware River.
But pursuing litigation requires a strong voice, effective legal counsel, and well informed experts, data and information. We have in place a strong, educated, committed and professional legal team here at Delaware Riverkeeper Network to ensure our ability to rise to these challenges with bold advocacy and solid legal action whenever necessary to stop them. The Delaware Riverkeeper, serving as lead client and voice for the Delaware River, works with our River Resources Law Clinic to build the strongest possible cases — ones that protect the River and set valuable precedent for its future protection. It is the ability to walk into the courtroom at a moment’s notice that so often has helped us to achieve our river protection goals.
Current Litigation
Agency Guidance
DRBC
Tinicum Creek Bridge Projects Challenged
PennDOT is pursuing two bridge projects over Tributaries of Tinicum Creek at Tettemer and Cafferty Roads in Tinicum Township, Bucks County, PA.
The Tinicum Creek basin is designated as an Exceptional Value stream because it has very high quality waters and healthy habitats. As a result, the law requires that the water quality of the Tinicum and its tributaries be maintained and protected.
The two bridge projects being proposed and pursued by PennDOT will result in water quality, habitat and other degradation of the Exceptional Value streams that comprise the Tinicum Creek. In addition to the damaging nature of the work to be done, when PennDOT submitted materials for the two bridge projects it represented that each of these projects would result in less than one acre of disturbance – the result was that PennDOT was granted waivers from having to pursue certain Clean Water Act permits (NPDES permits). But, expert reviews conducted by the Delaware Riverkeeper Network with the support of our local members now prove that in fact each of the projects disturbs more than one acre of land, and as a resultNPDES permits are required by law. That means that PennDOT is pursuing these two projects without the permits required by federal law.
Not only is the implementation of these projects without the necessary permits a violation of law, had this permitting been pursued there would have been more careful reviews into the degradation these two projects would inflict on the Tinicum Creek because of its Exceptional Value status.
The Delaware Riverkeeper Network has been pursuing several legal pathways in an attempt to protect the creek.
The first was to file for an injunction to try to stop the project until necessary permits were obtained -- that effort was well fought but ultimately failed.
Second and concurrently the Delaware Riverkeeper Network filed the legal notice necessary to pursue a Clean Water Act challenge to the project.
Dredging
Delaware Deepening
Delaware Riverkeeper, et. al. v. US Army Corps of Engineers
In October 2009, the Army Corps announced a Notice to Proceed with the Delaware Deepening project. In November 2009, the Delaware Riverkeeper Network led four other citizen environmental organizations – National Wildlife Federation, New Jersey Environmental Federation, Delaware Nature Society, Clean Water Action in Pennsylvania – to file suit in Federal District Court in New Jersey against the Delaware deepening proposal. DRN and the groups also filed a motion in Delaware District Court to intervene in and support the legal action brought against the deepening by the State of Delaware, including a motion for a preliminary injunction.When the Army Corps announced that it was going to
proceed with the Deepening project at this time, it was announcing its
arbitrary and capricious intent to violate the Administrative Procedures Act,
based on non-compliance with no less than 6 federal environmental and community
protection laws as well as state environmental and community protection
laws.
In addition to being a flagrant violation of state and federal law, the Notice to Proceed and related action by the Army Corps (supported by Pennsylvania) to move forward with the deepening without needed Delaware and New Jersey permits and approvals is a stripping of state environmental protection authority that cannot be allowed to stand.
While DRN fully supported (and indeed advocated for) legal challenges by New Jersey and Delaware, DRN did not believe the states’ legal challenges fully represented all of the legal violations, nor did the states represent all the interests that DRN and its partners bring to bear on the issue. New Jersey’s action was broader than Delaware’s and included more environmental claims to be sure, but neither included the full array of environmental harms that is included in the Delaware Riverkeeper Network litigation, and it is impossible to know how the states will proceed strategically. Further, DRN represents a holistic view of the watershed and the protection of the River and environments, not based on political boundaries, but on their importance to our members and the citizens of the region.
In addition to being a flagrant violation of state and federal law, the Notice to Proceed and related action by the Army Corps (supported by Pennsylvania) to move forward with the deepening without needed Delaware and New Jersey permits and approvals is a stripping of state environmental protection authority that cannot be allowed to stand.
While DRN fully supported (and indeed advocated for) legal challenges by New Jersey and Delaware, DRN did not believe the states’ legal challenges fully represented all of the legal violations, nor did the states represent all the interests that DRN and its partners bring to bear on the issue. New Jersey’s action was broader than Delaware’s and included more environmental claims to be sure, but neither included the full array of environmental harms that is included in the Delaware Riverkeeper Network litigation, and it is impossible to know how the states will proceed strategically. Further, DRN represents a holistic view of the watershed and the protection of the River and environments, not based on political boundaries, but on their importance to our members and the citizens of the region.
Responding to a motion for a preliminary injunction filed in the Delaware case the Army Corps was allowed to begin one 12 mile stretch of the project with an injunction imposed on the forward movement of the rest of the project. That initial work began on March 1, 2010.
The New Jersey Judge denied a request by the Army Corps to transfer the New Jersey case to Delaware and therefore to allow the consolidation of the two cases. As a result the two District Court cases proceeded on parallel tracks. RN’s attorneys, on behalf of our coalition of clients, filed motions for summary judgment in both district courts.
Delaware Riverkeeper Network, on October 18, 2010, filed a notice of intent to sue regarding the deepening project and ensuring it does not violate the Endangered Species Act with regards to Atlantic Sturgeon, proposed October 6, 2010 for ESA listing by the National Marine Fisheries Service and identified as at particular risk from the deepening project.
On November 4th, Judge Joel Pisano of the federal District of New Jersey denied our motion to stay proceedings pending the Army Corps of Engineers’ compliance with its obligations under the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) to protect Atlantic sturgeon in the Delaware River. We filed this motion after the National Marine Fisheries Service proposed the Atlantic sturgeon for listing under the Endangered Species Act on October 6, 2010. Judge Pisano ruled that our motion to stay was premature because the Corps needs more time to fulfill its obligations under NEPA and the ESA and that granting the stay would cause economic harm to the Port of Philadelphia. He also stated that granting our motion to stay is unnecessary because the Corps is currently under an injunction issued by Judge Robinson of the federal District of Delaware in our litigation in front of that court, preventing the Corps from proceeding with further dredging.
Notably, however, even prior to Judge Pisano’s ruling, the Corps had already canceled its contract process for the next phase of dredging that was intended to begin on December 1, 2010. We understand that the Corps does not intend to begin further work on the Deepening Project until August 2011, and that it is currently working to fulfill its obligations under the ESA to confer with the National Marine Fisheries Service on the Deepening Project’s impacts on Atlantic sturgeon as well as its obligations under NEPA to consider doing a Supplemental Environmental Impact Statement.
Notably, however, even prior to Judge Pisano’s ruling, the Corps had already canceled its contract process for the next phase of dredging that was intended to begin on December 1, 2010. We understand that the Corps does not intend to begin further work on the Deepening Project until August 2011, and that it is currently working to fulfill its obligations under the ESA to confer with the National Marine Fisheries Service on the Deepening Project’s impacts on Atlantic sturgeon as well as its obligations under NEPA to consider doing a Supplemental Environmental Impact Statement.
On November 17, 2010, Judge Robinson of the federal district court in Delaware issued her decision on the parties’ cross-motions for summary judgment, rationalizing the Army Corps’ decision to proceed with a multi-year, multi-million dollar project to deepen the shipping channel by a full five feet as an action to “maintain” navigation. Her decision found for the Corps on all counts and enabled the Corps to avoid all responsibility for complying with environmental review, particularly review under Delaware state law. Simultaneously she also denied our motion to stay based on the Army Corps’ need to comply with the ESA and NEPA to ensure protection for the proposed endangered Atlantic sturgeon in the River. Judge Robinson lifted her injunction against the Deepening Project’s proceeding in all reaches of the River, giving the Army Corps the green light to proceed with its plans to deepen, straighten, and otherwise permanently degrade and alter the River and its habitats. (See: DRN Press Release regarding Judge Robinson's decision.)
DRN and our co-plaintiffs will file an appeal with the Third Circuit to challenge Judge Robinson’s decision, particularly her faulty reading of the Clean Water Act’s definition of the Army Corps’ ability to “maintain” navigation.
DRN and our co-plaintiffs will file an appeal with the Third Circuit to challenge Judge Robinson’s decision, particularly her faulty reading of the Clean Water Act’s definition of the Army Corps’ ability to “maintain” navigation.
On January 13, 2011, Judge Joel A.
Pisano, District Judge for the United States District Court District of New
Jersey issued his opinion in which he denied the motions for
Summary Judgment filed by the State of New Jersey and five environmental
organizations, including Delaware Riverkeeper Network. In his decision, Judge Pisano gave the Army Corps deference for their actions and decisions, and used this as a firm basis upon which to rest his opinion. The Delaware Riverkeeper Network does not believe this deference is factually or legally warranted and that the judge reached a flawed conclusion.
DRN and our co-plaintiffs will also file an appeal with the Third Circuit to challenge Judge Pisano's decision.
Endangered Species
Atlantic Sturgeon
Deepening and Atlantic Sturgeon -- Letter of Intent to Sue under ESA
On October 18, 2010 the Delaware Riverkeeper Network sent a notice letter of its intent to sue to the Army Corps of Engineers if they fail to fulfill their obligations under the Endangered Species Act for the protection of Atlantic Sturgeon in the Delaware River.
The notice letter was prompted by an October 6, 2010, public notice published the National Marine Fisheries Service (NMFS) proposing to list as endangered or threatened under the Endangered Species Act five distinct population segments (DPS) of Atlantic sturgeon, Acipenser oxyrinchus oxyrinchus, including those in the Delaware River. NMFS explicitly found that “[T]he loss of any of the discrete population segments would result in a significant gap in the range of Atlantic sturgeon, and negatively impact the species as a whole, given the strong natal homing behavior of the species.”
Atlantic sturgeon are known to spawn in the Delaware River, although there may be less than 300 spawning adults per year in this subpopulation, and according to some sources may be even less than 100.
NMFS found that the Delaware River spawning group is essential to the survival of the “New York Bight” population segment (NYB DPS). In the proposed rule, NMFS specifically identified the dredging and blasting activities of the Deepening Project as threats warranting the listing of the NYB DPS as endangered.
The notice letter sent by the Delaware Riverkeeper Network urges the Army Corps to fulfill its obligations to confer with the National Marine Fisheries Service regarding the Atlantic Sturgeon of the Delaware River prior to the deepening project or other damaging projects moving forward. According to the letter, if the Army Corps does not fulfill its legal obligations under the Endangered Species Act the organization will file a lawsuit to enforce the law.
Remember the River
The Delaware is the longest undammed river east of the Mississippi, flowing freely for 330 miles as it travels from New York state, through Pennsylvania, New Jersey, and Delaware to the Atlantic Ocean.
Our Remember the River campaign is a tribute to the Delaware. Learn more about this campaign.