Appeals board rules on canal dredging

The long saga that is the Assawoman Canal dredging project concluded on July 26 — at least, as far as the state’s Environmental Appeals Board (EAB) is concerned.

The quasi-judicial EAB handles things whenever someone appeals a decision handed down by the Secretary of the Department of Natural Resources and Environmental Control (DNREC).

And this one project has generated numerous appeals — providing all the job security the (unpaid) EAB members could ever want.

A quick recap:

• The state issued itself a permit to dredge the canal in 1995, but didn’t act on it within five years, so it expired.

• The Sierra Club demanded they issue another before moving forward, so they did (2002).

• Then the Sierra Club appealed that decision, protesting a lack of rigor in environmental assessments, and in conducting a realistic cost-benefit analysis.

• The EAB never had a chance to deliberate on those matters, because a paperwork mix-up late in the appeals process forced DNREC to revoke its own permit. The Sierra Club claimed victory.

• DNREC quickly reissued (2004) and the Sierra Club re-appealed — same problems as before.

• This time, the EAB made it all the way through expert testimony, received final briefs from all the interested attorneys, deliberated and voted on the matter.

• However, by the time they’d gathered to sign their final order and decision (July 26), the state legislature effectively countermanded that final order and decision (July 1).

EAB members referenced that 2006 bond-bill language: “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…”

Apparently, EAB members recognized a conflict.

From their final order and decision: “As a result of this action (passage of the above mentioned bond bill), the Board conducted further deliberations on this matter on July 26, 2005 to consider the potential effects of the General Assembly’s action relative to the appeal. The General Assembly’s pronouncement on this matter may raise issues of import under both the Constitutions of the United States and the State of Delaware.

“The Board recognizes that the consideration of such issues may be outside its purview.

“Furthermore, as the interaction between the Board’s statutory authority and the General Assembly’s pronouncement in section 81 of the Bond Bill (referenced above) is not entirely clear, the Board chooses to continue in its role consistent with its enabling statute and issue its decision and order in this appeal.”

This being the sum total response to the actions of the state legislature, EAB members then proceeded to outline a nearly 50-page final order and decision.

In brief, they found that the appellant (the Sierra Club) “did not meet its rather substantial burden of proof.”

In the next paragraph, “The Sierra Club, however, has also focused on the issues that are of primary concern to the Board: the enforcement of the no-wake speed limits and the failure of the agency to consider certain secondary costs in its cost-benefit analysis.”

The board found that “the likelihood of the public fully complying with no-wake speed limits is small,” and “the likelihood the agency will be able to strictly enforce the no-wake speed limits is similarly small.”

As the board concluded, DNREC hadn’t considered the environmental impacts associated with boat wakes and hadn’t included no-wake enforcement costs in the cost-benefit analysis.

As they’d announced back in May, the EAB on July 26 remanded the Assawoman Canal dredging permit to DNREC with instructions to conduct a new cost/benefit analysis.

Board member Gordon Wood elaborated on that topic in a concurring and supplemental opinion, which all the other board members also adopted.

Wood recognized DNREC shouldn’t have to conduct a full-blown Army Corps of Engineers cost-benefit analysis, but concluded that the department should have to include some estimates above and beyond the initial construction costs, noting maintenance and enforcement costs specifically.

Rep. Gerald Hocker (38th District), a staunch supporter of the dredging project, said he was pleased the EAB had finally put everything in writing.

However, he said he’d been rather of the opinion that the matter had been settled back in May. Although the final order and decision wasn’t signed until July 26, the cover sheet does carry the statement, “This matter was concluded on May 10, 2005 when the Board deliberated and voted on the matter.”

“I think the legislature — we sort of thought it was finalized,” he said. “And there’s no negative impact — at least, the Sierra Club didn’t prove any.

“The legislature felt it was time to get this done,” Hocker concluded. “It’s been 20 years — that’s long enough.”

He said he did believe the actions of the legislature superseded the appeals board in this matter.