USA: Corps Seeks Congress’ Approval for Savannah Dredging

The Army Corps of Engineers is asking Congress to exempt a controversial harbor-dredging project in Savannah, GA, from state permitting requirements under the Clean Water Act (CWA) — a move that would short-circuit contentious litigation over the permits, and bar EPA from vetoing them.

It is the Corps’ second move this year to exempt such projects from EPA and state regulatory authority, just as many ports are looking to do similar dredging to accommodate a new class of massive vessels able to transit the widened Panama Canal.

Jo-Ellen Darcy, assistant secretary of the Army for civil works, has submitted letters to House Speaker John Boehner (R-OH), Vice President Joe Biden and the chairs and ranking members of the Senate and House appropriations and environment committees asking for Congress to exercise authority under section 404(r) of the CWA to “specifically authorize” the controversial Savannah Harbor Expansion Project (SHEP).

“I am seeking a CWA subsection 404(r) exemption in order to prevent inappropriate delays to this project due to pending litigation,” Darcy says in the letters to legislators, submitted to the U.S. District Court for the District of South Carolina Nov. 15.

Under 404(r), dredging performed as part of “a Federal project specifically authorized by Congress” is exempt from review by both EPA and state permitting programs, provided the Corps submits to legislators a final environmental impact statement (FEIS) crafted under the National Environmental Policy Act (NEPA).

A spokesman says the Corps is not currently considering applying for permit exemptions in other dredging projects. However, earlier this year the Corps avoided state requirements for a deepening project in the Delaware River by invoking authority under the water law to issue “dredge and fill” permits without state approval when the permits are designed to “maintain navigation” — a move that led to the U.S. Court of Appeals for the 3rd Circuit supporting the Corps’ decision in a case of first impression.

In addition to exempting SHEP from permit requirements, 404(r) approval would prevent EPA from applying its authority to “veto” Corps dredge-and-fill permits. While the agency rarely exercises that power, its ability to do so has recently been the subject of high-profile litigation — including Mississippi Board of Levee Commissioners v. EPA, where the 5th Circuit specifically tested the trigger for 404(r). There, a panel of judges ruled that without explicit proof that a final, rather than preliminary, EIS had been submitted, the exemption does not apply.

And Darcy points out in each letter that an FEIS is included, in a statement that “if the Congress authorizes this project or next appropriates funds for construction after receipt of this FEIS, it would be providing an exemption” from state permitting authority.

A draft version of the Water Resources Development Act under consideration in the Senate, which would authorize a host of Corps projects, does not mention the Savannah dredging. And while Sen. Lamar Alexander (R-TN) has pledged to introduce legislation aimed at streamlining permitting and funding of deepening projects, his office has not yet released a draft bill.

Dredging Projects

SHEP is one of many dredging projects scheduled around the country to accommodate the 50-foot “Panamax” ships and the increases in trade that are expected to result once the canal is widened, scheduled for 2014. SHEP and similar projects have met opposition from environmentalists and some state regulators who say they carry high environmental costs, such as damage to freshwater marshes and potential dangers to drinking-water aquifers.

In the litigation over SHEP, Savannah Riverkeeper, et al. v. U.S. Army Corps of Engineers, et al., petitioners argued that the Corps has ignored state permitting requirements as it proceeds with the project. But that case has stalled after eight months of litigation thanks to a Nov. 2 ruling by the South Carolina Supreme Court, which held that state permits for SHEP were improperly issued. The court held that new permits must be considered by the Savannah River Maritime Commission — rather than the state Department of Health & Environmental Control, which originally signed off on the project.

“These developments, which may both clarify some issues and raise new and difficult legal questions, suggest that this may be a propitious moment for the parties to sit down and attempt to resolve through mediation these complex and difficult issues. If a mediated resolution of the case is not possible, the Court further anticipates that it will need to consider anew motions to amend the pleadings,” Judge Richard Mark Gergel wrote in a Nov. 5 order.

But the Corps’ letters to Congress indicate that it will attempt to sidestep the case altogether. And in previous filings, it indicated that it might seek to extend the 3rd Circuit’s ruling in Delaware Department of Natural Resources and Environmental Control (DNREC), et al. v. U.S. Army Corps of Engineers, et al., where a panel of judges ruled July 3 to broadly interpret the Corps’ CWA authority to issue “dredge and fill” permits without state approval when the permits are designed to “maintain navigation.” The court said that authority includes projects that “improve a body of water in order to keep navigation levels steady in light of changes to commercial markets, technology, and environmental conditions,” such as the “Panamax” canal and harbor deepenings.

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Source: defensenewsstand, January 2, 2013