Assawoman dredging approval trumps appeal

Epilogue language in the state’s 2006 bond bill (a budget for capital projects, primarily) may have interrupted a state-appointed Environmental Appeals Board action.

According to attorneys on both sides of the appeal, and Department of Natural Resources and Environmental Control (DNREC) Assistant Secretary David Small, enactment of the bond bill settled all questions regarding DNREC’s Assawoman Canal dredging permit.

The roughly 4-mile canal runs south-southeast from White’s Creek (on the Indian River Bay, north of Ocean View) to Jefferson Creek (on the Little Assawoman Bay, south of South Bethany).

Area legislators have encouraged DNREC to pursue the project for years now — and over that same period, a few local environmentalists (with associates from the periphery) have questioned DNREC’s methodologies as the department has tried to respond to that encouragement.

Originally excavated circa 1900, the canal was partially dredged in the late 1950s. It has been silting in ever since, and according to some locals, a blown-out construction dam seriously exacerbated the situation back in the mid-1970s.

According to Sen. George Howard Bunting (20th District), the state had supported the project going all the way back to Gov. Pete DuPont’s administration (1976-1984).

And yet, there always seems to be another stumbling block.

DNREC first issued itself a permit to do the work back in 1995. That permit expired in 2000. The department decided to reissue in 2002 and the Sierra Club appealed that decision.

There was a paperwork mix-up somewhere inside DNREC, and that appeals process came to an abrupt conclusion in 2004 as the department revoked its own permit. Several months later, problem solved, they reissued again, and the Sierra Club re-appealed.

As of May 2005, both sides had presented their expert testimony, attorneys had submitted their final briefs, Environmental Appeals Board members had deliberated — and verbally announced a hint of what was to come.

They’d moved to remand the appeal to DNREC “with instructions to conduct a new cost-benefit analysis in accordance with the agency’s regulations and methodology, and not inconsistent with the board’s reasoning to be incorporated in its final order and decision.”

The board was slated to deliver that “final order and decision” on or before Aug. 10 — Small said department staff had been waiting for that final order, same as everyone else, when state legislators sent the bond bill to the governor’s desk in the wee hours of July 1.

DNREC’s Charles Williams (Assawoman Canal dredging project manager) echoed that comment.

“We were in the process of gearing up for doing another cost-benefit analysis,” Williams said. “The bond bill took us all by surprise — but I’ve received my orders from the front office, and we’re moving forward.”

With Gov. Ruth Ann Minner’s signature on that piece of legislation, there’s some question as to what weight the board’s final order and decision will carry when it finally appears — and what action, if any, DNREC will need to take in response to it.

Mid-Atlantic Environmental Law Center (MAELC) attorney Ken Kristl said he wasn’t sure if Minner’s signature did, or did not, render moot the appeal he’s been working on (on behalf of the Sierra Club) — but it did appear that way.

From the bond bill: “It is the express finding of the General Assembly that the benefits of dredging and maintaining the Assawoman Canal exceed the costs…” DNREC is “directed to initiate all necessary actions to dredge the Canal.”

“Something doesn’t seem quite right,” Kristl suggested. “It’s all very unclear. That this should show up at the 11th hour, buried in the provisions of the bond bill — it has the look like it’s trying to short-circuit the appeals process.”

Small offered a different perspective.

“The department’s position is the epilogue language in the bond bill has the effect of law,” he noted. “The General Assembly is empowered to make law, as it sees fit.”

Kristl countered: “The whole process was set up by the General Assembly — they created the Environmental Appeals Board, and they created this right of appeal,” he pointed out. “But my reading of that language [in the bond bill] — it seems to be saying, ‘Just go forward and get started,’” Kristl concluded. “It’s not just the Sierra Club anymore — the Environmental Appeals Board had a problem.”

Williams said there were other hurdles to overcome, and he was still trying to coordinate with the project manager from the Army Corps of Engineers on tree surveying.

They have work to do at the spoils sites, as well, before actual dredging can take place — and there’s a short window for those operations (Sept. 1 through Dec. 31).

Williams anticipated the Assawoman Canal dredging project would take between two and three years to complete.

“Assuming there’s no court-ordered injunction, we’ll have something done this year,” he said.

Side note: the Environmental Appeals Board is established in the section of Delaware Code titled “Environmental Control,” under “Powers and Duties of the [DNREC] Secretary and Department.”

There are seven members, two from each county plus one from Wilmington. No more than four may hail from one political party. All are appointed by the governor — the chair serves at the governor’s pleasure, and the others serve three-year terms.

The board is defined simply enough as “a quasi-judicial review board which is constituted in order to hear appeals of decisions of the Secretary.”