2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-3-2012

State of Delaware Department v. US Army Corps of

Eng

Precedential or Non-Precedential: Precedential

Docket No. 11-1283

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 11-1283 & 11-1421

___________

STATE OF DELAWARE DEPARTMENT OF NATURAL

RESOURCES AND ENVIRONMENTAL CONTROL

DELAWARE RIVERKEEPER NETWORK;

THE DELAWARE RIVERKEEPER;

DELAWARE NATURE SOCIETY;

NATIONAL WILDLIFE FEDERATION;

NEW JERSEY ENVIRONMENTAL FEDERATION;

CLEAN WATER ACTION,

Intervenor-Plaintiffs

STATE OF NEW JERSEY DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

Intervenor-Plaintiff

v.

UNITED STATES ARMY CORPS OF ENGINEERS;

HONORABLE JOHN McHUGH,

Secretary of the Army, in his official capacity;

HONORABLE JO-ELLEN DARCY,

Assistant Secretary of the Army for Civil Works,
2

in her official capacity;

Lt. Gen. ROBERT L. VAN ANTWERP, JR., Commander,

USACOE, in his official capacity;

Lt. Col. THOMAS TICKNER, Commander,

USACOE, North Atlantic Division,

Philadelphia District, in his official capacity

PHILADELPHIA REGIONAL PORT AUTHORITY,

 Intervenor-Defendant

Delaware Riverkeeper Network;

The Delaware Riverkeeper;

Delaware Nature Society;

National Wildlife Federation;

New Jersey Environmental Federation;

Clean Water Action,

Appellants at No. 11-1283

State of New Jersey Department

of Environmental Protection,

Appellant at No. 11-1421

_______________________

On Appeal from the United States District Court

for the District of Delaware

D.C. Civil Action No. 09-cv-00821

(Honorable Sue L. Robinson)

___________
3

___________

Nos. 11-1414 & 11-1424

___________

STATE OF NEW JERSEY, DEPARTMENT OF

ENVIRONMENTAL PROTECTION; BOB MARTIN;

DELAWARE RIVERKEEPER NETWORK;

THE DELAWARE RIVERKEEPER;

DELAWARE NATURE SOCIETY;

NATIONAL WILDLIFE FEDERATION;

NEW JERSEY ENVIRONMENTAL FEDERATION;

CLEAN WATER ACTION

v.

UNITED STATES ARMY CORPS OF ENGINEERS;

LIEUTENANT COLONEL THOMAS TICKNER,

as District Commander of the Army Corps

of Engineers Philadelphia District;

JO-ELLEN DARCY, as Assistant Secretary for Civil Works,

United States Army Corps of Engineers;

JOHN McHUGH; LIEUTENANT GENERAL

ROBERT L. VAN ANTWERP, JR.,

Commander (in his official capacity);

COLONEL PETER A. DeLUCA, Commander,

North Atlantic Division in his official capacity

PHILADELPHIA REGIONAL PORT AUTHORITY,

 Intervenor-Defendant
4

State of New Jersey, Department of

Environmental Protection; Bob Martin,

Appellants at No. 11-1414

Delaware Riverkeeper Network;

The Delaware Riverkeeper;

Delaware Nature Society;

National Wildlife Federation;

New Jersey Environmental Federation;

Clean Water Action,

Appellants at No. 11-1424

_______________________

On Appeal from the United States District Court

for the District of New Jersey

D.C. Civil Action No. 09-cv-05591

(Honorable Joel A. Pisano)

______________

Argued January 18, 2012

Before: SCIRICA, FUENTES and

HARDIMAN, Circuit Judges.

(Filed: July 3, 2012)

JANE P. DAVENPORT McCLINTOCK, ESQUIRE (ARGUED)

Delaware Riverkeeper Network

300 Pond Street, 2ND Floor

Bristol, Pennsylvania 19007

Attorney for Delaware Riverkeeper Network;
5

The Delaware Riverkeeper;

Delaware Nature Society;

National Wildlife Federation;

New Jersey Environmental Federation;

Clean Water Action

KRISTEN D. HEINZERLING, ESQUIRE (ARGUED)

EILEEN P. KELLY, ESQUIRE

JEAN PATRICE REILLY, ESQUIRE

Office of Attorney General of New Jersey

Richard J. Hughes Justice Complex

25 Market Street, P.O. Box 093

Trenton, New Jersey 08625

Attorneys for State of New Jersey

Department of Environmental Protection; Bob Martin

MARK R. HAAG, ESQUIRE (ARGUED)

United States Department of Justice

Environment & Natural Resources Division

P.O. Box 7415

Washington, D.C. 20044

Attorney for United States Army Corps of Engineers;

John McHugh; Jo-Ellen Darcy;

Robert L. Van Antwerp, Jr.; Thomas Tickner;

Peter A. DeLuca

HARRY WEISS, ESQUIRE (ARGUED)

MICHAEL C. DUFFY, ESQUIRE

MARLENE S. GOMEZ, ESQUIRE

Ballard Spahr
6

1735 Market Street, 51ST Floor

Philadelphia, Pennsylvania 19103

BETH E. MOSKOW-SCHNOLL, ESQUIRE

Ballard Spahr

919 North Market Street, 11TH Floor

Wilmington, Delaware 19801

BARRY A. STEINBERG, ESQUIRE

Kutak Rock

1101 Connecticut Avenue, N.W., Suite 1000

Washington, D.C. 20036

CLAUDIA M. TESORO, ESQUIRE

BARRY N. KRAMER, ESQUIRE

Office of Attorney General of Pennsylvania

21 South 12th Street, 3RD Floor

Philadelphia, Pennsylvania 19107

Attorneys for Philadelphia Regional Port Authority

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

At issue is whether the U.S. Army Corps of Engineers 

can deepen the main channel of the Delaware River by five 

feet, enabling river ports to be economically competitive and 

at the same time, comply with statutes that protect the 

environment. The roots of the project trace back decades. In 
7

1992, Congress authorized the project and appropriated $195 

million. It continued to support the effort with regular 

appropriations for the next twenty years.

1

 1 See, e.g., H.R. Rep. No. 111-278, at 50 (2009) (Conf. Rep.) 

(appropriating $4.8 million to the deepening project in the 

Energy and Water Development and Related Agencies 

Appropriations Act of 2010); H.R. Rep. No. 109-275, at 73 

(2005) (Conf. Rep.) (approving $2.25 million to the project in 

the Energy and Water Development Appropriations Act of

2006). In 1999 and 2000, Congress also supported the project 

by extending credit to non-federal entities for costs related to 

design, construction, and disposal. See Water Resources 

Development Act of 2000, Pub. L. No. 106-541, § 306, 114 

Stat. 2572 (2000) (“The project for navigation, Delaware 

River Mainstem and Channel Deepening . . . is further 

modified to authorize the Secretary to credit toward the nonFederal share of the cost of the project . . . the costs incurred 

by the non-Federal interests in providing additional capacity 

at dredged material disposal areas . . .”); Water Resources 

Development Act of 1999, Pub. L. No. 106-53, § 308, 113 

Stat. 269 (1999) (same). Most recently, the U.S. House of 

Representatives approved $29.45 million for fiscal year 2013. 

See H.R. Rep. No. 112-462, at 29 (2010).

Commencement 

was delayed for several reasons, but in the fall of 2009, the 

Corps was ready to proceed. In October 2009, New Jersey 

and Delaware filed suits in the District Courts of New Jersey 

and Delaware to enjoin the Corps from dredging the deeper 

channel. They alleged violations of the National 

Environmental Policy Act (“NEPA”), the Clean Water Act 
8

(“CWA”), and the Coastal Zone Management Act 

(“CZMA”). Each District Court granted summary judgment 

to the Corps, holding no environmental statutes would be 

breached. We will affirm.

I.

A. 

The federal government has maintained navigation in 

the Delaware River for over one hundred years. The initial 

project, “Philadelphia to the Sea,” was authorized by 

Congress in 1910 and ensures a navigation channel of 40-foot 

depth between Allegheny Avenue, Philadelphia, and a deep 

water point in the Delaware Bay, near Ship John Light. It 

requires the Corps to dredge 3.45 million cubic yards of 

material annually and to deposit the sediment at nearby 

locations, either owned or leased by the federal government. 

In 2009, the Corps used seven confined sites and one openwater site for disposal. 

The deepening project dates to 1954, when the Senate 

Committee on Public Works, by resolution, requested the 

Corps to study “the Delaware River between Philadelphia and 

the sea, for the purpose of identifying the need for any 

modification to the existing channel dimensions and 

anchorage areas.” In 1970, the House Committee on Public 

Works also instructed the Corps to analyze commerce along 

the Delaware River and to identify projects that would 

promote development of its ports. Pursuant to these 

directives, the Corps made extensive studies during the 1970s 
9

and 1980s. In 1992, it published a Feasibility Report and 

Environmental Impact Statement (“EIS”), recommending a 

deepening of five feet along the “main stem” of the Delaware 

River, the 102-mile stretch between the mouth of the 

Delaware Bay and the Philadelphia and Camden harbors. 

The Environmental Impact Statement predicted the 

deepening project would yield substantial economic benefits 

in the form of reduced costs to shippers. The main stem of the 

river hosts a concentration of heavy industry, as well as the 

second largest complex of oil refineries and petrochemical 

plants in the nation. But, as the EIS observed, “current 

authorized channel dimensions . . . present a constraint to 

efficient vessel movement.” The report determined that 

deepening the main navigation channel by five feet would 

benefit oil tankers, dry bulk shippers, and other large vessels, 

because it would enable them to service Delaware River ports 

without needing to “lighter” (transfer a portion of their cargo 

in the lower Delaware Bay) or “light load” (travel at undercapacity). While the EIS identified potential adverse impacts 

to water quality, benthic organisms, and fishery resources, it 

concluded these would be minimal and were outweighed by 

the project’s benefits. Altogether, it forecast that construction 

and maintenance of a 5-foot deeper channel for five years 

would require the Corps to dredge 375 million cubic yards of 

material above the dredging associated with the Philadelphia 

to the Sea project. 

In June 1992, the Corps submitted the Environmental 

Impact Statement to Congress. That October, Congress 

passed the Water Resources Development Act, authorizing 
10

the deepening project to go forward. See Water Resources 

Development Act of 1992, Pub. L. No. 102-580, § 101(6), 

106 Stat. 4797 (“WRDA”). Congress estimated the project 

would cost a total of approximately $295 million, with $195 

million to be borne by the federal government. Id. In 

December 1992, the Corps issued a Record of Decision 

stating the deepening project was “economically justified, in 

accordance with environmental statutes, and in the public 

interest.” Not only would “transportation cost savings . . . 

outweigh any adverse effects,” but the project was preferable 

to all other alternative plans, including a “no action” 

alternative. 

After issuing the Record of Decision, the Corps 

initiated the Preconstruction, Engineering and Design 

(“PED”) phase of the project. It consulted federal and state 

agencies and outside experts, and conducted new 

environmental analyses. In 1997, the Corps published a 

Supplemental Environmental Impact Statement (“SEIS”). Its 

goals were first, to “provide additional information and 

environmental analysis to address environmental concerns 

raised during review of the 1992 [EIS]”; and second, to 

evaluate modifications to the deepening project that had been 

made since the EIS was published.

2

 2 These modifications were primarily to the project’s disposal 

plan. In the EIS, the Corps assumed it would deposit the 

dredged sediment from the project at two existing and three 

new disposal sites. By 1997, the Corps planned to use four, 

rather than three, new disposal facilities. The Corps also 

embraced a proposal to store dredged material at four 

Like the EIS, the SEIS 
11

recommended the project proceed. At the same time, it 

reduced its estimate of the amount of material to be dredged 

over 50 years – for initial project construction and future 

maintenance – from 375 to 321 million cubic yards. Like the 

EIS, the SEIS concluded the project would yield considerable 

economic benefits at a minimal environmental cost. On 

December 18, 1998, the Corps issued a second Record of

Decision stating it had “reviewed and evaluated documents 

concerning the proposed action, including additional PED 

phase studies,” and it concluded “[t]he public interest will 

best be served by implementing the improvements identified 

and described in the Feasibility Report and the Supplemental 

Environmental Impact Statement.” The Record of Decision 

reiterated that “[a]ll practical means to avoid or minimize 

adverse environmental effects have been incorporated into the 

recommended plan.” 

For the next eleven years, progress on the deepening 

project stalled. One reason for the delay was that in the mid2000s, the Delaware River Port Authority (“DRPA”) 

withdrew the support it had tendered in 1999, leaving the 

Corps without a local partner.3

 

“beneficial use” sites in Delaware and New Jersey – at Kelly 

Island, DE, for wetlands restoration; at Egg Point Island, NJ, 

also for wetlands restoration; and at Broadkill and Slaughter 

Beaches, DE, for beach nourishment. The sand for Broadkill 

Beach would first be stockpiled elsewhere. 

In June 2008, the Philadelphia 

3 The bi-state board of the DRPA came to stalemate at its 

meeting in December 2005, when the New Jersey 

commissioners on the board refused to endorse the deepening 
12

River Port Authority (“PRPA”) came forward and signed a 

partnership agreement with the Corps. The agencies agreed to 

share costs: 75% for the Corps, 25% for PRPA.

By late 2008, the Corps was ready to commence 

dredging the deeper channel. But over a decade had passed 

since the SEIS was published, and there were new 

developments. First, improved survey technology meant the 

deepening could be deployed more efficiently, reducing the 

amount of sediment. The total estimated dredging for the 

project over a 50-year period was reduced again, from 321 to

232 million cubic yards. Accordingly, the updated disposal 

plan called for using only existing, federally-owned sites –

the four new disposal sites included in the SEIS were no 

longer necessary. Second, the construction plan now called 

for dredged sand from the Delaware Bay to be deposited 

 

project and Pennsylvania Governor Ed Rendell, Chairman of 

the DRPA, refused to adopt the agency’s budget until the 

project was approved. See Geoff Mulvihill, Dredging Spat 

Deepens Between Two Neighbors, Associated Press, Dec. 31, 

2005. For the next 18 months, the meetings of the DRPA 

were suspended. In May 2007, the two states finally reached a 

deal: DRPA would return the $38.5 million set aside for the 

project to Pennsylvania and New Jersey, half-and-half; DRPA 

would hand jurisdiction over the project to the Philadelphia 

River Port Authority (“PRPA”); Pennsylvania would proceed 

in collaboration with PRPA; and New Jersey would use its 

share of the returned money for local improvement projects. 

See Deborah Yao, Pa., N.J. Finally Agree on Delaware River 

Dredging Project, Associated Press, May 18, 2007.
13

directly onto Broadkill Beach, DE, rather than temporarily 

stockpiled offshore. Third, the reduction in the amount of 

predicted dredged material meant a wetlands restoration 

project at Egg Point Island, NJ, would be deferred. Finally, 

there were two environmental changes since 1997. An oil 

spill from the T/S Athos I in November 2004 had released 

265,000 gallons of oil into the Delaware River, temporarily 

increasing the toxicity of the river’s sediments. Also, recent 

surveys predicted an expansion in the number and distribution 

of shortnose sturgeon in the Delaware River, potentially 

increasing the risk that rock blasting in the Marcus Hook 

region could cause the species. 

The Corps released a public notice on December 17, 

2008, announcing it was undertaking a new “environmental 

review.” The notice stated:

Notice is hereby given that the Philadelphia 

District, U.S. Army Corps of Engineers, is 

conducting an environmental review of all 

applicable, existing and new information 

generated subsequent to the Supplemental 

Environmental Impact Statement (SEIS) of 

1997 prepared for the Delaware River Main 

Stem and Channel Project . . . . At present, the 

Philadelphia District has found no factors 

precluding the Project from moving forward 

based on previous studies. A summary of 

project changes and environmental changes 

known to date is attached. The public and all 

agencies are invited to comment on the attached 
14

changes, and to identify any applicable existing 

and new information generated subsequent to 

the 1997 SEIS by responding to this Public 

Notice. A copy of the SEIS of 1997 and other 

environmental studies performed since the 

completion of the SEIS, are among the 

information available on the District’s website. 

The environmental review referenced above 

will be used to update the environmental record, 

and to determine whether further environmental 

work and analyses are needed.4

On April 3, 2009, the Corps published an 

Environmental Assessment (“EA”). The report’s central 

conclusion was that no additional environmental impact 

statement was necessary. None of the developments since 

1997 – the elimination of the four new disposal sites, the plan 

for direct stockpiling at Broadkill Beach, the deferment of 

wetlands restoration at Egg Point Island, and the possible 

changes to the natural environment – had materially altered 

the project’s environmental risk profile. Thus, the EA closed 

with a signed declaration by the Commander of the Corps’ 

Philadelphia District, stating:

Based on the information contained in this EA . 

. . 1) none of the changes to the proposed 

project are “substantial”; and 2) there are no 

 4 The Corps provided the public four weeks for comments 

(initially, two weeks were provided but the Corps lengthened 

this in response to requests for more time). 
15

new circumstances that can be considered 

“significant.” Therefore, I have determined that 

the threshold for preparation of a Supplemental 

Environmental Impact Statement (SEIS) . . . has 

not been met and that changes to the project or 

project conditions since the 1997 SEIS will not 

have a significant adverse effect on the human 

environment.

Like the Environmental Impact Statement and Supplemental 

Environmental Impact Statement, the Environmental 

Assessment recommended the project proceed because its 

substantial economic benefits outweighed any possible 

adverse environmental effects.5

 5 The 2009 EA described the economic benefits of the 

deepening project as follows:

 On April 8, 2009, the Corps 

The NED [National Economic 

Development] benefits quantified include the 

reduced costs of transportation realized through 

operational efficiencies (reduced lightering and 

lightloading), and the use of larger more 

efficient vessels, both resulting from navigation 

improvements at the harbor. Reduced 

transportation costs result in reduced production 

and distribution costs and thereby increase the 

net value of the national output of goods and 

services.

Benefits will result from the decrease in 

the cost per ton for shipping commodities into 

or out of the Delaware River Port System. The 
16

transmitted the 1997 Supplemental Environmental Impact 

Statement and 2009 Environmental Assessment to the chairs 

of the Senate and House Subcommittees on Energy and Water 

Development in the Committees on Appropriations. 

When Congress first authorized the deepening project 

in 1992, the Corps initiated a comprehensive process of 

discussion, coordination, and collaboration with New Jersey 

and Delaware to obtain the state authorizations mandated by 

various environmental statutes. Two statutes are relevant to 

this appeal. First, the Coastal Zone Management Act 

 

45 foot channel depth will improve the 

economic efficiency of ships moving through 

the Delaware River ports. No induced tonnage 

(i.e., commodity shifts from other ports) will 

take place with the proposed project deepening. 

The largest vessels in the port fleet, crude oil 

tankers, currently lighter at Big Stone 

Anchorage in the naturally deep water of the 

lower Delaware Bay. These vessels will 

continue to carry the same tonnage from foreign 

origin ports but will be able to operate more 

efficiently in the Delaware River with a 

deepened channel from reduced lightering. This 

will also result in a reduction in barge traffic 

needed to move the lightered crude oil upriver 

to the refineries. Also, a deeper channel depth

will allow current dry bulk and container 

vessels to carry more cargo as well as allow a 

fleet shift in the charter dry bulk market.
17

obligates the Corps to submit a “consistency determination” 

to any state whose “coastal zone” will be affected by one of 

its activities. 16 U.S.C. § 1456(c)(1)(A), (C). The 

consistency determination describes how the Corps will 

deploy the project “in a manner which is consistent to the 

maximum extent practicable” with the state’s program for 

managing coastal areas. Id. If the Corps receives a 

“concurrence,” it may proceed; if it does not, it can proceed 

over the state’s objection in limited circumstances. 15 C.F.R. 

§§ 930.41(a)-(d), 930.43(d). Second, the Clean Water Act 

requires the Corps to comply with all state laws “respecting 

the control and abatement of water pollution.” 33 U.S.C. § 

1323(a). The Corps must obtain a state “water certification” 

when, on the basis of a federally-issued permit, it plans to 

discharge pollutants into a state’s navigable waters. 33 U.S.C. 

§ 1341(a).

To comply with the CZMA, the Corps submitted 

“consistency determinations” to the Delaware Department of 

Natural Resources and Environmental Control (“DNREC”) 

and the New Jersey Department of Environmental Protection 

(“NJDEP”) in 1996. Delaware identified several concerns, but 

provided a concurrence on May 1, 1997. New Jersey signed a 

Memorandum of Understanding with the Corps on August 29, 

1997, and on the same day, provided a concurrence. 

Accordingly, both CZMA clearances were in place in 1997. 

But each state retreated. New Jersey attempted to “revoke” its 

CZMA concurrence in September 2002, and requested 

supplemental filings from the Corps in 2008 and again in 

2009. Delaware issued an order requiring the Corps to submit 

a new consistency determination in 2009, contending 
18

“substantial project modifications” had rendered its 1997 

concurrence outdated. 

The Corps did not provide supplemental consistency 

determinations to New Jersey or Delaware. Rather, on 

November 9, 2009, it issued a Memorandum of Record 

concluding that no additional coordination was necessary for 

the Corps to comply with the CZMA. The Corps referred to 

the April 2009 EA, which had found that no substantial 

changes to the project had been made and no significant new 

information about the project’s consequences had surfaced 

since the 1997 SEIS. Because concurrences from each state 

had been in place at that point in time, and because the 

project’s risk profile had not changed, it was not necessary to 

provide supplemental consistency determinations. 

On January 19, 2001, the Corps initiated coordination 

with Delaware to comply with the Clean Water Act; that is, it 

applied to the Delaware Department of Natural Resources and 

Environmental Control for a water quality “certification” as 

well as for Subaqueous Lands and Wetlands permits. See 7 

Del. Code chs. 60, 66 & 72. These efforts were unsuccessful. 

Significantly, Delaware took no action on the Corps’ 

application for the next eight years.6

 6 DNREC did hold hearings on the Corps’ application in 

December 2001, soliciting public comments and hiring an 

independent consultant to serve as a Hearing Officer. In 2003, 

the Hearing Officer published a report recommending that 

Delaware deny the application. But DNREC did not act on

the recommendation for the next five years. 

On December 30, 2008, 
19

it filed a comment in response to the public notice issued by 

the Corps on December 17, stating it would review any new 

information on the project “in the context of a new Delaware 

subaqueous lands and wetlands permit application.” The 

implication was that Delaware had denied, by inaction, the 

prior requests for Subaqueous Lands and Wetlands permits 

and was now requesting a new application.7

The record does not indicate whether the Corps 

applied for a water quality certification from New Jersey to 

comply with the Clean Water Act. But neither party disputes 

that to date, the Corps has not obtained such a certification 

from New Jersey. 

On July 23, 

2009, eight and a half years after the Corps filed its 

application, Delaware made its denial of the 2001 application 

official by order of the Secretary of DNREC. 

Despite these roadblocks, the Corps issued a 

Memorandum of Record on April 30, 2009, invoking its 

authority to “maintain navigation” under Section 404(t) of the 

Clean Water Act. See 33 U.S.C. § 1344(t). This authority, the 

Corps contends, relieved it of any further obligation to obtain 

Subaqueous Lands and Wetlands permits from Delaware. The 

Corps drew additional authority from Section 404(r) of the 

CWA, which provides a special waiver for projects that are 

congressionally authorized. Id. § 1344(r). It contends Section 

404(r) obviated the need to obtain water quality certifications 

from Delaware or New Jersey.

 7 Delaware’s letter did not directly mention the issue of the 

water quality certification. 
20

By late 2009, the Corps believed it had complied with 

all statutory mandates and could begin dredging the deeper 

channel. Under NEPA, it had published an Environmental 

Assessment in April 2009, concluding the project was in the 

public interest and that no additional environmental impact 

statements were necessary. Under the CZMA, it had 

submitted consistency determinations to New Jersey and 

Delaware in 1996, obtained concurrences within a year, and 

issued a Memorandum of Record announcing no additional 

CZMA coordination was necessary. Under the Clean Water 

Act, it had issued a separate Memorandum of Record in April 

2009, invoking Section 404(t) of the Act to overcome the 

need for the special Delaware permits, and believed it could 

otherwise rely on the Section 404(r) exemption to circumvent 

the water quality certifications. In October 2009, the Corps 

entered into a contract with PRPA which authorized it to 

initiate the project at “Reach C,” a 12-mile stretch spanning 

from the Delaware Memorial Bridge to the C&D Canal. The 

contract did not authorize the Corps to deepen any other 

portion of the river until December 2010. 

B.

On October 30, 2009 and November 2, 2009, the 

Delaware Department of Natural Resources and 

Environmental Control and the New Jersey Department of 

Environmental Protection initiated actions in the District 

Courts of Delaware and New Jersey to prevent the Corps 

from commencing dredging of the deeper channel. In the 

Delaware action, DNREC sued under the Clean Water Act, 

Clean Air Act, Coastal Zone Management Act, and the 
21

Delaware Code, requesting the court enjoin the Corps until it 

obtained the authorizations and concurrences from Delaware 

specified by those statutes. Delaware Riverkeeper Network 

(“Riverkeeper”) intervened as a plaintiff, and PRPA as a 

defendant. On January 29, 2010, the District Court granted in 

part and denied in part Delaware’s request. It preliminarily 

enjoined the project at Reaches A, B, D, and E, but allowed 

the Corps to commence at Reach C.8

 8 The reasoning for the District Court’s ruling was as follows. 

At a hearing in December 2009, the Corps claimed 

construction at Reach C was slated to begin imminently, but 

subsequent phases would not commence until December 

2010. Meanwhile, despite its delay, DNREC had represented 

that it was prepared to complete its administrative review of 

the Corps’ application for the various state authorizations 

within a year. The District Court reasoned that while the 

Corps was likely to prevail on its claim that all federal 

statutes had been complied with, and so construction at 

Reach C should commence, there was no harm in enjoining 

the remainder of the project to enable DNREC to provide its 

decisions on the Corps’ application. Given that future phases 

of the project were not slated to begin for a year anyway, and 

that DNREC claimed it would complete its review within that 

time, the partial injunction would facilitate federal-state 

coordination while not compromising the Corps’ interests. 

 The parties filed and 

cross-filed motions for summary judgment, and on December 

7, 2010, the District Court dissolved its partial injunction and 

granted summary judgment to the Corps and PRPA. It held 

the Corps had properly invoked its authority to “maintain 
22

navigation” under Section 404(t) of the CWA, and this made 

all the difference. It held: “Having determined that the 

navigation exception . . . is applicable here . . . the Corps is 

exempt from compliance with the CWA, CZMA, and CAA, 

and judgment must be entered in its favor.” 

In the New Jersey action, NJDEP sought relief under 

NEPA, the CWA, the CZMA, the Clean Air Act, the Fish & 

Wildlife Coordination Act, the Water Resources 

Development Act, and the Magnuson-Stevens Fishery 

Conservation and Management Act. NJDEP asked the court 

to enjoin the Corps until it had “comprehensively sample[d] 

and analyze[d] the sediment within the areas to be dredged,” 

issued a new SEIS, obtained a water quality certificate from 

New Jersey, and completed its supplemental coordination 

under the CZMA. Riverkeeper again intervened as a plaintiff, 

and PRPA again intervened as a defendant. The parties filed 

and cross-filed motions for summary judgment and on 

January 13, 2011, the court granted summary judgment in 

favor of the Corps and PRPA. The court held the Corps had 

complied with NEPA when it issued the 2009 EA, complied 

with the CZMA when it declined to provide a supplemental 

consistency determination, and was relieved of its obligations 

under the CWA because Congress authorized the project in

1992. Riverkeeper and New Jersey appealed both judgments 

under NEPA, the CZMA, and the CWA, and we consolidated 

their cases for review. Delaware did not file an appeal.

As this litigation unfolded, the Corps made headway 

on the project. After receiving court approval in January 

2010, it commenced dredging at “Reach C” and completed 
23

that segment in September 2010. In November 2011, the 

Corps began deepening the 4-mile stretch known as “Lower 

Reach B,” which extends from Oldsman Creek to the 

Delaware Memorial Bridge. That segment is now also 

complete. See Delaware River Main Channel Deepening 

Project: Construction Status, U.S. Army Corps of Engineers 

Philadelphia District, http://www.nap.usace.army.mil/cenappl/drmcdp/drcs.htm (last updated Jan. 20, 2012); Jon Hurdle, 

New Federal Funding May Move Delaware River ChannelDeepening Project Forward, DFMNews (Feb. 20, 2012), 

http://www.delawarefirst.org/23188-delaware-river-channeldeepening.

II.9

We review grants of summary judgment de novo. 

Startzell v. City of Phila., 533 F.3d 183, 192 (3d Cir. 2008). 

Summary judgment is proper when the pleadings, the 

discovery, the disclosure materials on file, and any affidavits 

show that there is no “genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). Because appellants challenge the 

actions of a federal agency (the Corps) in its application of 

federal law (NEPA, the CWA, the CZMA, and corresponding 

regulations), our standard of review is informed by 

administrative law doctrines prescribing the degree of 

 9 Appellants’ causes of action arise under federal law. 

Accordingly, the Delaware and New Jersey District Courts 

had jurisdiction under 28 U.S.C. § 1331 and we have 

jurisdiction under 28 U.S.C. § 1291. 
24

deference a reviewing court should apply to agency conduct. 

We elaborate further on the amount of deference due for each 

of the statutory challenges.

III. 

New Jersey and Riverkeeper contend the Corps’ 

decision to proceed with the project in 2009 ran afoul of 

NEPA procedurally and substantively. As for procedures, 

appellants contend the publication of the EA was arbitrary 

and capricious because the Corps failed to comply with the 

regulations governing the preparation of NEPA studies. As 

for substance, appellants contend the EA fell short of the 

“hard look” demanded by NEPA on whether an SEIS was 

necessary. As explained below, we find all NEPA claims 

unavailing. 

A.

Congress enacted the National Environmental Policy 

Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (codified at 42 

U.S.C. § 4321 et seq.), to further two goals: ensure federal 

agencies consider the environmental consequences of projects 

before committing resources; and facilitate agencies’ 

communication with the public about their environmental 

analyses. Robertson v. Methow Valley Citizens Council, 490 

U.S. 332, 350-52 (1989). NEPA is a procedural statute. Its 

goal is to “prohibi[t] uninformed – rather than unwise –

agency action.” N.J. Dep’t of Envtl. Prot. v. U.S. Nuclear 

Regulatory Comm’n, 561 F.3d 132, 134 (3d Cir. 2009) 

(internal quotation marks and citation omitted). NEPA also 
25

created the Council of Environmental Quality (“CEQ”) within 

the Executive Office of the President, granting it authority to 

issue regulations effectuating NEPA. CEQ regulations are 

“mandatory” for all federal agencies, carry the force of law, 

and are entitled to “substantial deference.” See Marsh v. Or.

Natural Res. Council, 490 U.S. 360, 372 (1989); Andrus v. 

Sierra Club, 442 U.S. 347, 358 (1979). In addition to CEQ 

regulations, agencies are bound by whatever regulations they 

promulgate under NEPA. E.g., 33 C.F.R. § 230 et seq. (U.S. 

Army Corps of Engineers’ regulations).

NEPA requires federal agencies to prepare 

environmental impact statements before undertaking “major 

[f]ederal actions significantly affecting the quality of the 

human environment.” 42 U.S.C. § 4332(C).

10

 10 In full, NEPA provides:

 To comply, an 

[A]ll agencies of the Federal Government shall . 

. . include in every recommendation or report on 

proposals for legislation and other major 

Federal actions significantly affecting the 

quality of the human environment, a detailed 

statement by the responsible official on – (i) the 

environmental impact of the proposed action, 

(ii) any adverse environmental effects which 

cannot be avoided should the proposal be 

implemented, (iii) alternatives to the proposed 

action, (iv) the relationship between local shortterm uses of man’s environment and the 

maintenance and enhancement of long-term 

productivity, and (v) any irreversible and 
26

agency must first decide whether a contemplated project 

qualifies as a “major federal action significantly affecting the

quality of the human environment.” CEQ regulations instruct 

the agency to consider both the “context” and “intensity” of 

the action to determine if its environmental effects will be 

“significant.” 40 C.F.R. § 1508.27(a)-(b). If the project 

qualifies, the agency should assess whether it is of a type that 

“[n]ormally requires an environmental impact assessment” or 

“[n]ormally does not require either an environmental impact 

statement or environmental assessment (categorical 

exclusion).” Id. § 1501.4(a)(1)-(2). If the action normally 

requires an impact statement, the agency should prepare one. 

If it normally requires neither an impact statement nor an 

assessment, the agency can proceed with the project. In all 

remaining situations, the agency should “prepare an 

environmental assessment” for the action. Id. § 1501.4(b). An 

EA is a “concise public document” that “[b]riefly provide[s] 

sufficient evidence and analysis for determining whether to 

prepare an [EIS].” Id. § 1508.9(a). If the agency concludes on 

the basis of the EA that no environmental impact statement is 

needed, it must issue a Finding of No Significant Impact 

(“FONSI”). Id. § 1501.4(e). 

Agencies must update – or “supplement” – their 

environmental impact statements over time to ensure they are 

 

irretrievable commitments of resources which 

would be involved in the proposed action 

should it be implemented.

42 U.S.C. § 4332(C).
27

current. Marsh, 490 U.S. at 370-74. CEQ regulations instruct 

agencies to “prepare supplements to either draft or final 

environmental impact statements” in two situations: (1) if 

“[t]he agency makes substantial changes in the proposed 

action that are relevant to environmental concerns,” or (2) if 

“[t]here are significant new circumstances or information 

relevant to environmental concerns and bearing on the 

proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1); see 

also 33 C.F.R. § 230.13(b) (requiring the Corps to 

supplement an EIS “whenever required as discussed in 40 

CFR 1502.09(c)”). The Supreme Court has elaborated that an 

agency must take a “hard look” in assessing whether either of 

the Section 1502.9(c) scenarios is present. Norton v. S. Utah 

Wilderness Alliance, 542 U.S. 55, 72-73 (2004). 

Understandably, neither NEPA nor CEQ regulations 

prescribes particular proceedings agencies should use in 

carrying out this “hard look.” In re Operation of Mo. River 

Sys. Litig., 516 F.3d 688, 695 (8th Cir. 2008).

11

 11 For instance, there is no requirement that the agency use an 

EA to determine if a supplemental EIS is needed. In Marsh, 

the Supreme Court upheld a decision by the Corps not to 

issue a supplemental EIS when the agency had used a 

Supplemental Information Report (“SIR”) rather than an EA 

to assess new information. Marsh, 490 U.S. at 385 (holding 

“the Corps acted within the dictates of NEPA in concluding 

that supplementation was unnecessary” when its SIR found 

“the new information was of exaggerated importance”).
28

B.

Judicial review of agency conduct under NEPA is 

deferential. The sole question on review is whether the 

agency’s actions were arbitrary or capricious. See 5 U.S.C. § 

706(2)(A). When an agency publishes an EA and concludes 

an EIS is not needed, courts set those determinations aside 

only if there is evidence they were arbitrary or capricious. See 

Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 763 (2004) 

(“An agency’s decision not to prepare an EIS can be set aside 

only upon a showing that it was ‘arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with

law.’” (citing 5 U.S.C. § 706(2)(A)); Soc’y Hill Towers 

Owners’ Ass’n v. Rendell, 210 F.3d 168, 180 (3d Cir. 2000). 

Similarly, arbitrary and capricious review attaches to an 

agency decision not to supplement an EIS. Marsh, 490 U.S. at 

375-76 (“We conclude that review of the narrow question . . . 

whether the Corps’ determination that the FEISS need not be 

supplemented should be set aside is controlled by the 

‘arbitrary and capricious’ standard of § 706(2)(A).”). 

If some years pass between an agency’s completion of 

an EIS and its commencement of a project, a supplemental 

EIS may be indicated. But in Marsh, the Court made clear 

that judicial review of agency conduct in such situations is 

“narrow,” as is generally the case with arbitrary and 

capricious review. Marsh, 490 U.S. at 378. An agency’s 

decision not to supplement an EIS “is a classic example of a 

factual dispute the resolution of which implicates substantial 

agency expertise.” Id. at 376. Thus, the standard is still 

whether the action evidences arbitrary or capricious decision-
29

making. See Town of Winthrop v. Fed. Aviation Admin., 535 

F.3d 1, 3 (1st Cir. 2008) (upholding the FAA’s decision in 

2007 not to supplement an EIS from 2002); Ark. Wildlife 

Fed’n v. U.S. Army Corps of Eng’rs, 431 F.3d 1096, 1103-04

(8th Cir. 2005) (upholding the Corps’ decision in 2004, after 

conducting an EA, not to supplement an EIS from 1999); 

Price Road Neighborhood Ass’n, Inc. v. U.S. Dep’t of 

Transp., 113 F.3d 1505 (9th Cir. 1997) (upholding the 

Federal Highway Administration’s determination that a 

project change did not require a new EA).12

 12 In South Trenton Residents Against 29 v. Federal Highway 

Administration, 176 F.3d 658, 663 (3d Cir. 1999), we 

“assume[d] . . . an agency’s determination not to revise an 

Environmental Impact Statement must be ‘reasonable under 

the circumstances.’” (internal citations and quotation marks 

omitted; alteration in original). But Marsh unquestionably 

held that review in such contexts is for arbitrary or capricious 

action. Marsh, 490 U.S. at 375-76 (“The parties disagree . . .

on the standard that should be applied by a court that is asked 

to review the agency’s decision. Petitioners argue that the 

reviewing court need only decide whether the agency 

decision was ‘arbitrary and capricious,’ whereas respondents 

argue that the reviewing court must make its own 

determination of reasonableness to ascertain whether the 

agency action complied with the law. In determining the 

proper standard of review, we look to § 10(e) of the 

Administrative Procedure Act (APA), 5 U.S.C. § 706 . . . . 

We conclude that review of the narrow question before us 

whether the Corps’ determination that the FEISS need not be 
30

C.

In our review of the Corps’ conduct, we conclude that 

its publication of the 2009 EA was neither arbitrary nor 

capricious.

1.

The Corps complied with the procedural requirements 

prescribed by NEPA and its corresponding regulations 

because it engaged in a transparent and inclusive process, 

soliciting the views of federal and state agencies as well as of 

members of the public, and published an exhaustive, 179-

page Environmental Assessment that reviewed the project’s 

risks, responded to concerns raised, and came to the 

reasonable conclusion the project should proceed.

Neither CEQ nor Corps regulations detail the process 

an agency should follow when publishing an environmental 

assessment. See generally 40 C.F.R. § 1508.9 (CEQ 

regulations defining EAs); 33 C.F.R. § 230.10 (Corps 

regulations defining EAs). There are no notice requirements, 

pre-circulation requirements, or instructions about the public 

comments process. CEQ regulations only provide that 

agencies “shall involve . . . the public, to the extent 

practicable, in preparing [environmental] assessments[.]” 40 

C.F.R. § 1501.4(b). This is different in the case of 

environmental impact statements, for which CEQ and Corps 

 

supplemented should be set aside is controlled by the 

‘arbitrary and capricious’ standard of § 706(2)(A).”). 
31

regulations are detailed.13

The Corps’ procedures in preparing and publishing the 

2009 EA satisfied Section 1501.4(b)’s directive to “involve . . 

. the public to the extent practicable.” On December 17, 2008, 

the agency published a notice stating it was undertaking an 

“environmental review” in order “to update the environmental 

record, and to determine whether further environmental work 

and analyses are needed.” The Corps provided a summary of 

changes to the project that had been made since 1997 and 

links to the SEIS, EIS, and reports by other federal agencies. 

Collectively, the notice and appended materials 

communicated to the public that the Corps was undertaking a 

new environmental study of the deepening project and that its 

goal was to determine whether “further environmental work,” 

See Greater Yellowstone Coal. v. 

Flowers, 359 F.3d 1257, 1279 (10th Cir. 2004) (“NEPA’s 

public involvement requirements are not as well defined 

when an agency prepares only an EA and not an EIS.”).

 13 CEQ regulations mandate that agencies “publish a notice of 

intent in the Federal Register” at the earliest “practicable” 

moment regarding the preparation of an environmental impact 

statement, 40 C.F.R. § 1501.7; disseminate a copy of the draft 

or final EIS for public review before taking further action, id. 

§ 1506.10(b)(1), (2); “[r]equest comments [on the EIS] from 

the public, affirmatively soliciting comments from those 

persons or organizations who may be interested or affected,” 

id. § 1503.1(a)(4); and “respond by one or more of the means 

listed below” to the comments received, id. § 1503.4(a). See 

also 33 C.F.R. §§ 230.19, App. C ¶¶ 1-2 (regulations 

governing draft and final EIS reports).
32

such as a new SEIS, was needed. It directly provided the 

public with access to the information it would rely upon and 

solicited comments. The 30-day comment period was equal 

to the length of time mandated by CEQ regulations for 

comment periods for final EIS studies. 40 C.F.R. § 

1506.10(b)(2). The Corps was transparent, clear, and 

inclusive.

After soliciting and reviewing the public comments, 

the Corps published a thorough, 179-page Environmental 

Assessment on April 3, 2009. The report addressed the 

substance of the most important issues raised in the comments 

– questions about sediment quality, water quality, air quality, 

biological resources, and the impacts of the Athos oil spill. 

Each environmental risk, the report concluded, was minimal 

and could be mitigated through appropriate implementation 

measures. The Corps also responded in great detail to a 

comment filed by the New Jersey Department of 

Environmental Protection on January 14, 2009, sending the 

agency a letter on April 24, 2009 that reiterated the findings 

of the EA and expounded on its conclusions. 

Despite the Corps’ comprehensive public engagement, 

appellants contend it acted arbitrarily and capriciously under 

NEPA. They argue the Corps provided inadequate public 

notice; erred in declining to publish a FONSI alongside the 

EA; erred in not circulating a draft of the EA for public 

review before publication; and did not meaningfully review 

the comments submitted. None of these claims has merit. 
33

Regarding public notice, appellants contend the Corps 

did not specify the form of its forthcoming “review,” i.e., that 

it would be an Environmental Assessment, and that the 

comment period fell during a time of year when many people 

are on vacation. But as explained, neither NEPA nor its 

corresponding regulations impose a public notice requirement 

for EAs. See generally 40 C.F.R. § 1508.9; 33 C.F.R. § 

230.10. The CEQ regulations only direct that agencies 

“involve . . . the public, to the extent practicable.” 40 C.F.R. § 

1501.4(b). The December 17, 2008 notice satisfied this 

mandate by describing a forthcoming “environmental review” 

that would be “used to update the environmental record, and 

to determine whether further environmental work and 

analyses are needed.” Furthermore, the Corps appended a 

wealth of materials to its notice to make evident the 

information it would rely upon and to solicit feedback on that 

information. Courts have upheld EAs preceded by public 

notices with the same or with considerably less detail than 

that here. E.g., Theodore Roosevelt Conservation P’ship v. 

Salazar, 616 F.3d 497, 519 (D.C. Cir. 2010) (involving a 

public notice that did not “suppl[y] any specific 

environmental information”); Bering Strait Citizens for 

Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 

F.3d 938, 952-53 (9th Cir. 2008) (involving a notice that did 

not specify an EA was being prepared); Alliance To Protect 

Nantucket Sound, Inc. v. U.S. Dep’t of Army, 398 F.3d 105, 

108, 115 (1st Cir. 2005) (involving a notice that did not 

mention a forthcoming EA). 

Second, appellants fault the Corps for publishing the

EA without issuing a Finding of No Significant Impact. But 
34

neither CEQ nor Corps regulations impose a FONSI 

requirement in this context – an agency deciding, on the basis 

of an EA, whether to issue a supplemental EIS. The 

regulations require FONSIs only when the agency employs an 

EA to decide whether to issue an initial EIS. See 40 C.F.R. § 

1501.4(e) (instructing agencies to prepare “a finding of no 

significant impact (§ 1508.13) if the agency determines on the 

basis of an environmental assessment not to prepare a[n 

environmental impact] statement”); 33 C.F.R. § 230.11 (“A 

FONSI shall be prepared for a proposed action, not 

categorically excluded, for which an EIS will not be 

prepared.”). Given that CEQ and Corps regulations authorize 

the use of EAs for a wide array of purposes, see 40 C.F.R. § 

1501.3(b) (“Agencies may prepare an environmental 

assessment on any action at any time in order to assist agency 

planning and decisionmaking.”); 33 C.F.R. § 230.10(c), their 

silence on FONSIs for all but the initial EIS-determination is 

instructive. The Corps was not required to issue a FONSI, and 

its decision to refrain from doing so was not arbitrary or 

capricious. See In re Operation of Mo. River Sys. Litig., 516 

F.3d at 695 (“[T]he Corps prepared an EA, not to help it 

decide whether to prepare an EIS, but rather to determine 

whether the change in agency action required an SEIS. As 

this case illustrates, it is reasonable to expect that the Corps 

will sometimes determine that a FONSI is not appropriate 

because the action being taken has a significant impact on the 

environment, but an SEIS is not required because the impact 

was sufficiently analyzed in an earlier FEIS [Final 
35

Environmental Impact Statement]. This approach is neither a 

misuse of the EA procedure nor a violation of NEPA.”).14

 14 We recognize that the Corps’ General Counsel, Earl 

Stockdale, came to a different conclusion on the necessity of 

a FONSI. In an internal memorandum prepared for the 

agency, he reasoned that “all EAs must result in either a 

FONSI or an EIS with no exception” and so “without 

preparing of a FONSI, the Corps will simply not have 

completed its required NEPA process.” This conclusion was 

incorrect. The sole regulatory provisions cited by Stockdale to 

support his analysis were 40 C.F.R. § 1501.4(e) and 33 C.F.R. 

§ 230.11. These provisions do require FONSIs, but only for 

the initial EIS determination. See supra. 

Nonetheless, even if the FONSI requirement under 

Section 1501.4(e) attached, the Corps complied with it. The 

last page of the EA contained a signed declaration by 

Lieutenant Colonel Thomas Ticker, stating: “Based on the 

information contained in this EA and the referenced studies, I 

have concluded that . . . . the threshold for preparation of a 

Supplemental Environmental Impact Statement (SEIS) set 

forth at 40 CFR 1502.9(c) has not been met and that changes 

to the project or project conditions since the 1997 SEIS will 

not have a significant adverse effect on the human 

environment.” It was neither arbitrary nor capricious for the 

Corps to assume this signed declaration operated as a FONSI. 

The CEQ regulations define a FONSI as “a document by a 

Federal agency briefly presenting the reasons why an action . 

. . will not have a significant effect on the human environment
36

Third, appellants contend the Corps’ failure to 

circulate a draft of the EA before final publication was 

procedurally invalid. But neither CEQ nor Corps regulations 

impose a universal requirement to circulate draft EAs before 

publication. The CEQ regulations instruct that a document be 

disseminated for public review only when it is a draft or final 

EIS, 40 C.F.R. § 1506.10(b), or involves a “proposed action” 

that (i) would normally require an EIS which the agency has 

decided to forgo, or (ii) is “without precedent,” id. § 

1501.4(e)(2)(i), (ii). The Corps’ regulations require that EAs 

be circulated before publication only when they concern 

“feasibility, continuing authority, or special planning reports 

and certain planning/engineering reports.” 33 C.F.R. § 

230.11. The EA for the deepening project did not fall into any 

of these categories.15

 

and for which an environmental impact statement therefore 

will not be prepared.” 40 C.F.R. § 1508.13.

See Bering Strait Citizens, 524 F.3d at 

15 The EA by definition was not a draft or final EIS, so was 

not covered by 40 C.F.R. § 1506.10(b). It also did not fall 

under either prong of 40 C.F.R. § 1501.4(e)(2) – it is not an

action “which normally requires the preparation of an 

environmental impact statement” under § 1501.4(e)(2)(i), 

because Corps regulations provide an exclusive list of such 

actions at 33 C.F.R. § 230.6 and the project does not qualify; 

and it is not an action “without precedent” under § 

1501.4(e)(2)(ii), because the Corps has maintained dredging 

operations in the Delaware River since 1910. Finally, the EA 

did not fall under 33 C.F.R. § 230.11. That section refers to 

reports produced by the Corps pursuant to specific regulatory 
37

952 (“We hold today that the circulation of a draft EA is not 

required in every case. . . . Our conclusion is consistent with 

the views of other circuits, which uniformly have not insisted 

on the circulation of a draft EA.”); Fund for Animals, Inc. v. 

Rice, 85 F.3d 535, 549 (11th Cir. 1996) (holding there was 

“no legal requirement that an Environmental Assessment be

circulated publicly and, in fact, they rarely are” (emphasis 

omitted)). Meanwhile, although some evidence in the record 

suggests the Corps often released EAs for public review 

before publication, this was a nonbinding internal practice 

from which the Corps had discretion to deviate. United States 

v. Caceres, 440 U.S. 741, 754 n.18 (1979) (“[A]gencies are 

not required, at the risk of invalidation of their action, to 

follow all of their rules, even those properly classified as 

‘internal.’”). It exercised that discretion reasonably, given the 

long history of public involvement in reviewing and 

commenting on the deepening project, including the recent 

four-week comment period, and given the EA’s central 

conclusion that no factor or development altered the findings 

 

programs, none of which apply here. See 33 C.F.R. §§ 

263.10, 263.15, 263.19 (“Continuing Authorities Program”); 

id. § 230 App. A (“feasibility studies”); see also Procedures 

for Implementing the National Environmental Policy Act 

(NEPA), 53 Fed. Reg. 3120, 3124 (Feb. 3. 1988) (explaining 

that 33 C.F.R. § 230.11 requires a “30 day review of the EA” 

for the “types of actions” specified in the rule, none of which 

include dredging activities). Appellants appear to concede 

that none of the provisions mandating EA pre-circulation 

apply here. N.J. Br. at 44-46; Riverkeeper Br. at 79-81.
38

of the earlier reports. E.g., Pogliani v. U.S. Army Corps of 

Eng’rs, 306 F.3d 1235, 1240 (2d Cir. 2002) (refusing to grant 

a preliminary injunction based on the Corps’ decision not to 

circulate a draft EA because the action was not one which 

“normally requires” an EIS nor “without precedent” under 40 

C.F.R. § 1501.4(e)(2), and so did not have a pre-circulation 

requirement).

Finally, appellants contend the Corps failed to 

meaningfully consider the public comments it received on its 

December 17, 2008 notice. But the 179-page Environmental 

Assessment comprehensively addressed the key issues raised 

in the comments. See supra. Furthermore, the record 

demonstrates over twenty years of engagement by the Corps 

with the public, state governments, and other federal 

agencies. The Corps’ activity in the 2008-2009 period was the 

final chapter of this engagement. On May 4, 1989, the Corps 

issued a notice of intent to file a Draft Environmental Impact 

Statement on the deepening project. It circulated a copy of 

that report for public comment on July 13, 1990, and released 

a final EIS in February 1992, incorporating the comments 

received. The Corps repeated this public engagement process 

for the SEIS in 1997. Between 1992 and 2008, it had a steady 

stream of communications with the EPA, New Jersey, and 

Delaware about the project’s compliance with the Clean 

Water Act and the Coastal Zone Management Act. It also 

engaged in rigorous coordination with the National Marine 

Fisheries Service (“NMFS”), conducting an Endangered 

Species Act consultation in 1996 and preparing a Biological 

Assessment for the agency in 2009. Given this twenty-plus 

year period of public, inter-state, and inter-agency 
39

involvement, the assertion that the Corps failed to engage the 

public or respond to its views lacks merit.16

2.

NEPA not only requires that agencies follow certain 

 16 The record does not show the Corps’ decision to proceed 

with the project was “predetermined,” making the EA a sham 

review. See Riverkeeper Reply Br. at 22; NJ Reply Br. at 15. 

NEPA reviews “must be taken objectively and in good faith, 

not as an exercise in form over substance, and not as a 

subterfuge designed to rationalize a decision already made.” 

Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000). We 

will invalidate projects where the “agency has impermissibly 

committed itself to a course of action before embarking upon 

a NEPA analysis.” Forest Guardians v. U.S. Fish & Wildlife 

Serv., 611 F.3d 692, 716 (10th Cir. 2010). But there is no 

indication that the Corps “impermissibly committed itself” to 

the deepening project before completing the EA. It did not 

begin dredging or make an “irretrievable commitment of 

resources” while the environmental review was pending. 

Metcalf, 214 F.3d at 1143. The one contract it entered into 

before the EA was finalized – the Project Partnership 

Agreement, which was signed with the Philadelphia Regional 

Port Authority on June 23, 2008 – expressly acknowledged 

that the Corps would “expeditiously construct the general 

navigation features . . . applying those procedures usually 

applied to Federal projects, pursuant to Federal laws, 

regulations, and policies.” In other words, construction was 

made contingent on a successful NEPA review.
40

procedures when assembling environmental reports, but also 

that they take a “hard look” at the environmental costs of the 

proposed action as compared to the contemplated benefits. 

See Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 

Inc., 462 U.S. 87, 98 (1983) (“Congress, in enacting NEPA . . 

. . required [] that the agency take a ‘hard look’ at the 

environmental consequences before taking a major action.”); 

Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. 

Council, Inc., 435 U.S. 519, 524 (1978). The Corps provided 

the necessary “hard look” at the project’s costs and benefits, 

and at whether an additional SEIS was needed for the project, 

in the 2009 EA. Riverkeeper and New Jersey advance three 

reasons for why the agency’s review was not sufficient, none 

of which is convincing. 

First, Riverkeeper argues the EA failed to adequately 

address the adverse impacts the project could cause on the 

shortnose sturgeon. The shortnose sturgeon was included in 

the federal Endangered Species list at least as far back as 

1996, meaning it bore that classification at the time the SEIS 

and EA were published. Some agencies and organizations had 

expressed concern during the comments period that the 

analysis of the shortnose sturgeon in the 1997 SEIS was no 

longer sufficient. New information about the species and its 

use of the Delaware River had become available, such that 

“the proposed deepening may affect shortnose sturgeon in a 

manner or to an extent not considered” previously. 

The EA contained no fewer than four separate sections 

on the shortnose sturgeon, including a comprehensive 

assessment of the species in an appended Essential Fish 
41

Habitat Evaluation. The report acknowledged that recent

surveys showed “a significant expansion in the number and 

distribution of shortnose sturgeon in the Delaware River 

appears likely,” but it also cited a 2005 study which found 

that “large aggregations of sturgeon do not exist in the 

blasting area.” Furthermore, it explained how blasting 

techniques could be honed to minimize harm to the species. 

The Corps drew on these analyses – as well as its findings in 

a Biological Assessment published for NMFS earlier that year 

– to conclude that adverse impacts to the shortnose sturgeon 

would be minimal.17

Riverkeeper also contends the EA did not give a hard 

look to the dangers confronting the Atlantic sturgeon. NMFS 

The Corps’ conclusion was neither 

arbitrary nor capricious.

 17 The Biological Assessment was prepared by the Corps in 

January 2009. In it, the Corps had concluded that any risks to 

shortnose sturgeon posed by the deepening project could be 

“minimize[d] and in some cases eliminate[d],” because “the 

majority of potential impacts would be related to the blasting 

activities . . . scheduled to take place in December and 

January of project Years 1 and 2.” NMFS endorsed the 

Corps’ findings in a Biological Opinion published in July 

2009. The Biological Opinion found: “[I]n its entirety, the 

proposed action is likely to result in direct physical effects . . . 

to no more than 57 shortnose sturgeon . . . . this number 

represents a very small percentage of the shortnose sturgeon 

population in the Delaware River . . . . [T]he proposed 

deepening project will not appreciably reduce the likelihood 

of survival . . . for this species . . . .”
42

designated the Atlantic sturgeon as a “candidate” for the 

Endangered Species list in 2006, and throughout the time at 

issue in this litigation, it retained that classification.18

The EA’s analysis of the Atlantic sturgeon was 

sufficient. The report contained two sections on “threatened 

and endangered species and other species of special concern,” 

each of which contained a sub-section on the Atlantic 

sturgeon. The sturgeon’s use of the Delaware River – from 

spawning, to hatching, to other migratory patterns – was 

analyzed in detail. Furthermore, every public comment about 

“Candidate” species receive no statutory protection under the 

Endangered Species Act, but their vulnerability makes them 

appropriate for consideration in a NEPA review. 

 18 On February 6, 2012, NMFS listed the New York Bight 

distinct population segment (“DPS”) of the Atlantic sturgeon 

as an Endangered Species. See Final Listing Rule for Gulf of 

Maine, New York Bight, and Chesapeake Bay Distinct 

Population Segments of the Atlantic Sturgeon in the 

Northeast Region, 77 Fed. Reg. 5880, 5909 (Feb. 6, 2012) (to 

be codified at 50 C.F.R. pt. 224). The New York Bight DPS 

includes sturgeon in the Delaware River. Id. at 5881, 5903, 

5912. Because NMFS’s endangerment listing post-dated the 

events in this litigation, it has no bearing on the quality of the 

EA. Nonetheless, we observe that it is unlikely the February 

2012 listing would change the EA’s conclusion that no 

additional SEIS was necessary for the project because the EA 

treated the Atlantic sturgeon as a species of “special 

concern,” given its “candidate” species listing at that time, 

and analyzed its vulnerability in several discussions. 
43

the vulnerability of the species that Riverkeeper cites in its 

Brief was also addressed in the EA. See Riverkeeper Br. at 85 

(citing comments by NMFS, Prof. Dewayne Fox, and the 

Delaware River Basin Fish and Wildlife Management 

Cooperative). The Delaware River Basin Fish and Wildlife 

Management Cooperative filed a comment recommending the 

Corps “establish dredging and blasting windows that would 

result in the lowest probable impact to existing sturgeon 

populations of both Atlantic as well as shortnose.” The EA 

adopted this proposal: “All of these windows will be met 

during construction of the deepening project,” save for one, 

which was infeasible. Professor Dewayne Fox of Delaware 

State University advised the Corps to take into account “the 

large body of work . . . done primarily by both DSU and the 

Delaware Department of Fisheries and Wildlife” about the 

Atlantic sturgeon. The EA devoted three pages to the studies 

of Professor Fox. NMFS informed the Corps it would 

“recommend protective measures” for the Atlantic sturgeon. 

The Corps committed to using “environmental windows” and 

“[c]onstruction techniques” to “reduce the impacts of rock 

blasting on fish,” and to working collaboratively with NMFS 

during the project design phase.

19

 19 Appellants draw our attention to a recent Ninth Circuit 

decision in which the court invalidated a supplemental EIS 

for, in part, failing to “provide baseline data for many of the 

species, and instead plan[ning] to conduct surveys and studies 

as part of its post-approval mitigation measures[.]” N. Plains 

Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 

1083 (9th Cir. 2011) (“Northern Plains”). Northern Plains is 
44

Finally, New Jersey contends the EA’s analysis of 

potential water contamination was deficient. In two ways, 

New Jersey argues, the EA lacked the necessary data for a 

robust analysis. First, it did not include up-to-date sediment 

samples from “bend-widening areas” in the Delaware River, 

which are necessary to obtain “‘a worst case picture of 

contaminant concentrations that would potentially be in the 

dredged material.’” N.J. Reply Br. 19 (citing the SEIS). 

Second, New Jersey claims the EA omitted a “modified 

elutriate analysis,” which was important for predicting how 

dredged material, stored upstream, would impact surface 

water quality. 

Neither purported data shortcoming rises to the level 

of arbitrary or capricious action. The EA relied on a broad 

array of studies, surveys, and sediment samples to ground its 

analysis of the potential water contamination from the project. 

First, it relied on sediment samples evaluated in the SEIS, 

which New Jersey concedes included samples from bendwidening areas. These had shown no bioaccumulation of any 

significance in the river’s sediment, and no potential for the 

 

inapposite. The report in Northern Plains was deficient 

because it sought to obtain baseline data, necessary for the 

agency’s approval of a project, from mitigation measures to 

be instituted after the project was underway. Id. at 1084. The 

agency put the cart before the horse. Here, the EA contained 

considerable baseline data on the Atlantic sturgeon, such as 

studies from 2003 through 2007, and relied on mitigation 

measures only to conclude the project could be deployed in a 

way that would avoid causing significant harm to the species.
45

deepening to increase the water’s toxicity. Second, the EA 

“incorporated . . . by reference” the modified elutriate 

analysis from the SEIS, which similarly concluded that 

“dredging and dredged material disposal operations would not 

significantly impact water quality within the Delaware 

River.” Third, the EA relied on two studies by the Corps in 

2003 and 2005, analyzing “[a] total of 45 sediment cores” 

from the main channel and concluding there was negligible 

contamination. Finally, the EA relied on 162 sediment 

samples collected by the National Oceanic and Atmospheric 

Administration from intertidal and subtidal areas for a 2007 

report. These samples showed the 2004 oil spill had left no 

lingering effects and “baseline conditions (i.e., no spillassociated service losses) [we]re reached in 14 months.” 

Altogether, this material provided the Corps a sufficient basis 

from which to analyze how the project would impact water 

contamination in the Delaware River and from which to draw 

well-reasoned, non-arbitrary conclusions.20

 20 New Jersey claims it flagged the need for updated sediment 

samples from bend-widening areas and for a modified 

elutriate analyses in its public comment from January 14, 

2009. Accordingly, it claims the EA’s failure to include such 

data was indefensible, as demonstrated in the recent case of 

Sierra Club v. Van Antwerp, 661 F.3d 1147, 1157 (D.C. Cir. 

2011) (holding it would have been arbitrary and capricious 

for the Corps to issue a FONSI that failed to address a 

comment raised by an expert about a threatened species, and 

remanding for factfinding on that issue). But New Jersey’s 

January 14 comment had not mentioned modified elutriate 

 
46

IV. 

Riverkeeper contends the Corps’ decision to proceed 

with the deepening project violated the Clean Water Act. 

First, Riverkeeper argues it violated Section 401(a), which 

requires recipients of federal permits who release “discharge” 

in navigable waters to obtain “a certification from the State in 

which the discharge originates or will originate.” 33 U.S.C. § 

1341(a)(1). The Corps never secured water certifications from 

New Jersey or from Delaware for the project. Second, 

Riverkeeper contends the Corps’ actions ran afoul of Sections 

313 and 404(t), which obligate federal agencies to comply 

with state environmental regulations when engaging in 

dredging operations. 33 U.S.C. § 1323(a); id. § 1344(t). After 

eight years of delay, Delaware denied the Corps two permits 

required by state law for users of subaqueous lands and 

wetlands in July 2009; nonetheless, the Corps decided to 

proceed. In response to Riverkeeper’s challenges, the Corps 

contends it is entitled to two statutory exemptions codified at 

Sections 404(r) and 404(t) of the CWA. For the reasons 

stated, we hold that both exemptions attach. 

 

analysis. And while it called for updated sediment samples 

from bend-widening areas, the EA relied upon reports 

assembled in 2003, 2005 and 2007, all of which included 

updated sediment samples. See supra. The Corps’ judgment 

that these samples were sufficient to offer the agency a 

complete picture of water contamination merits deference. 
47

A.

The Clean Water Act (“CWA”) was enacted in 1972 to 

“restore and maintain the chemical, physical, and biological 

integrity of the Nation’s waters.” Federal Water Pollution 

Control Act, Pub. L. No. 92-500, § 101(a), 86 Stat. 816 

(1972). Under its principal provision, “the discharge of any 

pollutant by any person shall be unlawful.” 33 U.S.C. § 

1311(a). The “discharge of a pollutant” is defined as “any 

addition of any pollutant to navigable waters from any point 

source,” see id. § 1362(12); “navigable waters” are defined as 

“waters of the United States, including the territorial seas,” id. 

§ 1362(7); and “pollutant” is defined as including “dredged 

spoil, . . . rock, sand, [and] cellar dirt,” id. § 1362(6). The 

Delaware River readily qualifies as a “navigable water” 

because it is a “relatively permanent . . . continuously flowing 

bod[y] of water forming geographic features that are 

described in ordinary parlance as . . . rivers,” Rapanos v. 

United States, 547 U.S. 715, 739 (2006) (internal quotation 

marks and citation omitted); and dredging qualifies as the 

“discharge of a pollutant” because it results in the “addition” 

of “dredged spoil” to a navigable water. Under Section 

404(a), however, the U.S. Army Corps of Engineers may 

“issue permits . . . for the discharge of dredged or fill material 

into the navigable waters at specified disposal sites.” See 

CWA § 404(a) (codified at 33 U.S.C. § 1344(a)). The Corps 

“exercises the discretion of an enlightened despot” in issuing 

discharge permits, Rapanos, 547 U.S. at 721, and considers a 

broad range of factors set forth in its regulations, see 33 

C.F.R. § 320.4. But there is one statutory obligation 

incumbent upon the Corps. Before issuing a permit, it must 
48

apply “guidelines developed by the Administrator [of the 

EPA], in conjunction with the Secretary [of the Army],” 

which prescribe a rigorous review of a project’s 

environmental costs. CWA § 404(b)(1) (codified at 33 U.S.C. 

§ 1344(b)); 40 C.F.R. § 230.10 et seq.21

The Clean Water Act requires federal agencies and 

holders of federally-issued discharge permits to comply with 

state and local environmental laws in two pertinent ways. 

First, under Section 401(a), the Act requires holders of U.S. 

Army Corps permits, issued pursuant to Section 404, to 

obtain “certifications” from the states in which the discharge 

into navigable waters will occur. CWA § 401(a) (codified at 

33 U.S.C. § 1341(a)(1)) (“Any applicant for a Federal license 

or permit to conduct any activity . . . which may result in any 

discharge into the navigable waters, shall provide the 

licensing or permitting agency a certification from the State in 

which the discharge originates or will originate . . . that any 

such discharge will comply with the applicable provisions of 

[other sections of this title].”). The state certification “shall 

become a condition of any Federal license or permit subject 

to the provisions of this section.” 33 U.S.C. § 1341(d). 

Second, under Sections 313 and 404(t), the Act requires 

federal departments and instrumentalities to comply with state 

 

 21 When the Corps seeks to undertake a project that will 

release discharge, it does not go through the formality of 

issuing a permit to itself. Instead, it follows “all applicable 

substantive legal requirements” under Section 404, including 

an application of the Section 404(b)(1) guidelines. 33 C.F.R. 

§ 336.1(a).
49

environmental laws when they engage in activities that emit 

pollutants into navigable waters. CWA § 313 (codified at 33 

U.S.C. § 1323(a)) (“Each department, agency, or 

instrumentality of the executive, legislative, and judicial 

branches of the Federal Government . . . shall be subject to, 

and comply with, all Federal, State, interstate, and local 

requirements . . . respecting the control and abatement of 

water pollution . . . .”); CWA § 404(t) (codified at 33 U.S.C. 

§ 1344(t)) (“[Every federal] agency shall comply with such 

State or interstate requirements both substantive and 

procedural to control the discharge of dredged or fill material 

to the same extent that any person is subject to such 

requirements.”).

But the Act also provides exceptions to the provisions 

cited, enacted as part of the Clean Water Act of 1977, Pub. L. 

No. 97-217, 91 Stat. 1566. As to the water certification 

requirement under Section 401(a), Section 404(r) creates an 

exemption for projects “specifically authorized” by Congress. 

See CWA § 404(r) (codified at 33 U.S.C. §1344(r)) (“The 

discharge of dredged or fill material as part of the 

construction of a Federal project specifically authorized by 

Congress . . . is not prohibited by or otherwise subject to 

regulation under this section . . . .”). As to the mandates to 

follow states’ environmental laws, codified at Sections 313 

and 404(t), the final sentence of Section 404(t) provides a 

partial waiver. See CWA § 404(t) (codified at 33. U.S.C. § 

1344(t)) (“This section shall not be construed as affecting or 

impairing the authority of the Secretary to maintain 

navigation.”); see also S. Rep. No. 95-370, at 68-69 (1977) 

(“[C]orps dredging activities are not exempt from State 
50

pollution abatement requirements. . . . [But this] is neither 

intended nor expected to result in compromising the ability of 

the corps to maintain navigation.”). Before Section 404(t) was 

added in 1977, the CWA had included a provision, still in 

force, that similarly preserved the Corps’ authority to 

“maintain navigation.” See CWA § 511(a)(2) (codified at 33 

U.S.C. § 1371(a)(2)) (“This chapter shall not be construed as . 

. . affecting or impairing the authority of the Secretary of the 

Army (A) to maintain navigation or (B) under the Act of 

March 3, 1899[.]”).

B.

The Corps asserts it was relieved of the need to obtain 

water certifications from New Jersey and Delaware under 

Section 401(a) of the CWA by virtue of the “congressionally 

authorized” exception under Section 404(r). Riverkeeper 

disagrees, but we find the Corps’ argument convincing.22

 22 Riverkeeper argued the Corps violated CWA § 401(a), and

that CWA § 404(r) did not apply, at summary judgment in 

both district courts. New Jersey raises this claim for the first 

time on appeal. See N.J. Br. at 60. A party’s failure to raise an 

issue in district court typically results in forfeiture of the 

claim. Brenner v. Local 514, United Bhd. of Carpenters & 

Joiners of Am., 927 F.2d 1283, 1298 (3d Cir. 1991) (holding 

“[i]t is well established that failure to raise an issue in the 

district court constitutes a waiver of the argument” unless 

certain “extraordinary circumstances” exist). We need not 

resolve whether to consider the Section 401(a) claim as to 

 
51

As an initial matter, we agree with the Corps that “all 

of the elements of section 404(r) have been satisfied” for the 

deepening project. Section 404(r) provides:

The discharge of dredged or fill material as part 

of the construction of a Federal project 

specifically authorized by Congress . . . is not 

prohibited by or otherwise subject to regulation 

under this section . . . if information on the 

effects of such discharge, including 

consideration of the guidelines developed under 

subsection (b)(1) of this section, is included in 

an environmental impact statement for such 

project pursuant to the National Environmental 

Policy Act of 1969 [42 U.S.C.A. § 4321 et seq.] 

and such environmental impact statement has 

been submitted to Congress before the actual 

discharge of dredged or fill material in 

connection with the construction of such project 

and prior to either authorization of such project 

or an appropriation of funds for such 

construction.

33 U.S.C. § 1344(r). Accordingly, to trigger Section 404(r), 

there must be a federal project specifically authorized by 

Congress. The deepening project unquestionably qualifies, as 

Congress clearly authorized it in the Water Resources 

Development Act of 1992, Pub. L. No. 102-580, § 101(6), 

 

New Jersey because we find it to lack merit, when evaluated 

as to Riverkeeper.
52

106 Stat. 4797, 4802 (“[T]he following projects for water 

resources development and conservation and other purposes 

are authorized to be carried out by the Secretary . . . . The 

project for navigation, Delaware River Mainstem and 

Channel Deepening, Delaware, New Jersey, and 

Pennsylvania: Report of the Chief of Engineers, dated June 

29, 1992, at a total cost of $294,931,000, with an estimated 

Federal cost of $195,767,000 . . . .”). Section 404(r) also 

requires that “information on the effects of [the project], 

including consideration of the guidelines developed under 

subsection (b)(1)” be “included in an environmental impact 

statement . . . submitted to Congress before the actual 

discharge of dredged or fill material . . . and prior to either 

authorization of such project or an appropriation of funds for 

such construction.” 33 U.S.C. § 1344(r). This prerequisite 

was met. The Corps transmitted an EIS to Congress in June 

1992 that had been prepared pursuant to NEPA and that 

included, as Section 404(r) directs, a “consideration of the 

guidelines developed under subsection (b)(1).” The 

transmission occurred five months before Congress 

authorized the project or appropriated funds, see WRDA, 106 

Stat. at 4797 (showing a date passage of October 31, 1992), 

and years before any “actual discharge” occurred.

Nonetheless, Riverkeeper contends Section 404(r) 

does not apply for two reasons. The first is that the 1992 EIS 

was incomplete because it lacked a Record of Decision. The 

Record of Decision was issued in December 1992, two 

months after the WRDA was enacted. But this is of no 

moment. Section 404(r) mandates that “[an] environmental 

impact statement . . . [prepared] pursuant to the National 
53

Environmental Policy Act” be provided to Congress and that 

it “includ[e] consideration of the guidelines developed under 

subsection (b)(1)”; it never mentions a Record of Decision. 

The absence of a Record of Decision in the congressional 

submission violates no statutory command. Furthermore, the 

purpose of Section 404(r) is for Congress to receive sufficient 

information in order to make an informed judgment about 

whether to authorize a federal project. In cases like this, 

where an EIS is produced after a full-fledged notice and 

comment process, bears the title of “final” impact study, and 

is transmitted to Congress with an explicit request for a 

Section 404(r) exemption, that purpose has been achieved.23

 23 The recent case of Board of Mississippi Levee 

Commissioners v. EPA, 674 F.3d 409 (5th Cir. 2012) is 

consistent with our holding. In that case, the Fifth Circuit held 

that Section 404(r) of the CWA had not been triggered when 

a report provided to Congress lacked, among other things, a 

Record of Decision. The absence of a Record of Decision was 

one factor among several that persuaded the court to find the 

report had not been an agency’s “final EIS.” In addition to the 

lack of a Record of Decision, the agency’s transmittal letter to 

Congress plainly stated the report was not final. Id. at 414-

15. Four months after the report was transmitted to Congress, 

the Chief of Engineers prepared a “final report” for the same 

project. Id. at 415. And because the original report sent to 

Congress was not in the record, the court could not determine 

whether it was labeled a “final” EIS. The Fifth Circuit held 

these factors collectively proved the document provided to 

Congress had not been a “final EIS” and accordingly, Section 
54

Second, Riverkeeper contends the SEIS invalidated 

whatever exemption had been attained by virtue of the EIS. 

Riverkeeper claims the SEIS stands as proof that by 1997, the 

deepening project had changed to such an extent and new 

information had become available to such a degree, that 

Congress’s 1992 statutory authorization was no longer 

binding. But nothing in the text of Section 404(r) suggests 

that once the exemption attached, it lapses. The plain 

language of the statute states that when Congress 

“specifically authorizes” a federal project, following its 

consideration of an EIS, the exemption is triggered. 33 U.S.C. 

§ 1344(r). There is no requirement that the agency submit 

supplemental NEPA reports so Congress can reauthorize the 

venture. Furthermore, the SEIS’s central findings were that 

despite the developments between 1992 and 1997 – e.g., 

modifications to the project, new scientific information that 

became available – the conclusions in the EIS still applied. 

The SEIS stated: “[R]efinements to the authorized plan that 

were recommended in the 1992 Interim Feasibility Report . . . 

. did not alter the environmental impacts that were presented 

in the Final Environmental Impact Statement” and the project 

still “compl[ied] with the 404(b)(1) guidelines.” There was 

no need to solicit reauthorization from Congress because the 

project had not changed in a material way.

 

404(r) had not been triggered. Id. at 419. Here, the EIS 

transmitted to Congress in June 1992 was entitled “Final 

Interim Feasibility Report,” was produced after a full notice 

and comment process, and was sent with a transmittal letter 

requesting the Section 404(r) exemption. 
55

In sum, Section 404(r) of the CWA was triggered in 

1992 and did not lapse by virtue of the Corps’ subsequent 

NEPA analyses. The Corps was relieved of the federal 

permitting requirement under Section 404, see 33 C.F.R. § 

323.4(d) (explaining that “[f]ederal projects which qualify 

under the criteria in section 404(r) of the CWA are exempt 

from section 404 permit requirements”), as well as from the 

water certification requirement under Section 401(a), see 33 

U.S.C. § 1341(a)(1) (stating the certification mandate attaches 

to “applicant[s] for a Federal license or permit to conduct any 

activity”). The fact that the Corps attempted to work 

collaboratively with New Jersey and Delaware for several

years does not undermine its lawful reliance on the Section 

404(r) exemption. 

C.

The Corps contends it was relieved of Sections 313 

and 404(t) of the Clean Water Act, which required it to obtain 

special Delaware permits, because it was entitled to a 

statutory exemption codified at Section 404(t). We afford 

Skidmore deference to the Corps’ invocation of Section 404(t) 

and find its interpretation of the statute reasonable. We also 

find the Corps was neither arbitrary nor capricious in deciding 

to invoke Section 404(t).

The Delaware Subaqueous Lands Act “empower[s] the 

Secretary to deal with or dispose of interest in public 

subaqueous lands.” 7 Del. Code Ann. tit. 7, § 7201. Under 

that authority, DNREC promulgated regulations instructing 

that “[n]o . . . project which may potentially impact the public 
56

interest in the use of tidal or navigable waters [or] contribute 

to water pollution . . . shall be undertaken on public or private

subaqueous lands unless approval has been obtained from the 

Department.” 7 Del. Admin. Code § 7504-2.7. The Delaware 

Wetlands Act provides that “[a]ny activity on the wetlands 

requires a permit from [DNREC].” 7 Del. Code Ann. tit. 7, § 

6604(a). The word “activity” is defined to include dredging 

operations. Id. § 6603. Both permit requirements extend to 

the deepening project because it calls for the disposal of 

dredged material at three subaqueous land-sites in Delaware 

and for a wetlands restoration project in Delaware.24

 24 The record reveals some confusion as to whether the 

wetlands permit was necessary and as to whether the Corps’

2001 application was made pursuant to the Wetlands Act or 

solely the Subaqueous Lands Act. Neither party has raised 

this issue on appeal. We assume both were required and that 

the Corps applied for both. 

It is also worth noting the permits mandated by the 

Subaqueous Lands and Wetlands Acts were not affected by 

the exemption codified at Section 404(r). Section 404(r) 

relieves projects “specially authorized” by Congress from the 

permitting requirements in Section 404. One of those 

requirements, codified at Section 401(a), is to obtain a state 

water certification. 33 U.S.C. § 1341(a)(1). But for a water 

certification to fall under Section 401(a), it must be issued by 

a state body operating a “permit program” that regulates 

“discharges into navigable waters” and that has been 

approved by the EPA. 33 U.S.C. § 1342(b). The Delaware 

Subaqueous Lands and Wetlands Acts create permit programs 
57

The Corps applied for subaqueous lands and wetlands 

permits in 2001. For eight years, Delaware stalled on its 

application. In light of Sections 313 and 404(t) of the CWA, 

which obligate federal agencies to follow states’ 

environmental laws, the Corps was at an impasse. 

Accordingly, it invoked the exemption set forth in Section 

404(t) in the spring of 2009. That provision provides: “This 

section shall not be construed as affecting or impairing the 

authority of the Secretary to maintain navigation.” CWA 

§404(t) (codified at 33 U.S.C. § 1344(t)). On April 30, 2009, 

the Assistant Secretary of the Army for Civil Works signed a 

Memorandum of Record declaring the “failure to construct 

the 45’ Project as authorized by Congress in 1992 has . . . 

impaired the Secretary of the Army’s authority to maintain 

navigation . . . .” The Assistant Secretary was “direct[ing] the 

Corps to proceed with construction of the project.” The 

Memorandum of Record cited Section 404(t) of the CWA as 

the authoritative basis for its action. 

 

for the use of subaqueous lands and wetlands, neither of 

which is approved by the EPA under § 1342. Accordingly, 

the Delaware Subaqueous Lands and Wetlands Acts are 

“other state requirements” that do not fall under Section 

404(r) and that holders of federally-issued permits are 

required to follow. See 33 C.F.R. § 323.4(d) (“Federal 

projects which qualify under the criteria contained in section 

404(r) of the CWA are exempt from section 404 permit 

requirements, but may be subject to other State and Federal 

requirements.”). 
58

The Corps’ invocation of Section 404(t) was entitled to 

Skidmore deference. In cases involving an agency’s legal 

interpretation of a statute, the amount of deference afforded is 

governed by the Chevron framework. First, a court asks 

“whether Congress has directly spoken to the precise question 

at issue.” Chevron, USA, Inc. v. Natural Res. Def. Council, 

467 U.S. 837, 842 (1984). “If the intent of Congress is clear, 

that is the end of the matter; for the court, as well as the 

agency, must give effect to the unambiguously expressed 

intent of Congress.” Id. at 842-43. Second, a court asks 

whether, if the statute is ambiguous, the agency has rendered 

“a permissible construction.” Id. at 843. A court is more 

likely to find the agency’s interpretation permissible if there 

is a “complex and highly technical regulatory program,”

Robert Wood Johnson Univ. Hosp. v. Thompson, 297 F.3d 

273, 282 (3d Cir. 2002) (citations and quotation marks

omitted), or if the agency has employed formal procedures, 

such as notice and comment rulemaking, see Christensen v. 

Harris Cnty., 529 U.S. 576, 587 (2000). If the court declines 

to extend Chevron deference, it may nonetheless extend a 

lesser degree deference under Skidmore v. Swift & Co., 323 

U.S. 134 (1944). 

Before resorting to Skidmore deference, we observe 

that it is likely the phrase “maintain navigation” encompasses 

activities, such as the deepening project, that improve a body 

of water in order to keep navigation levels steady in light of 

changes to commercial markets, technology, and 

environmental conditions. While neither “maintain 

navigation” nor its component words are explicitly defined in 

the Clean Water Act, there is no evidence that Congress 
59

intended the phrase to encompass only those activities that 

preserve bodies of water as they existed in 1977, when the 

statutory language was inserted. See Clean Water Act of 

1977, Pub. L. No. 95-217, 91 Stat. 1566. Arguably, such a 

reading would be irrational. Given that navigation evolves 

over time, limiting the Corps to preserving rivers as they were 

in 1977 could have the counter-productive effect of 

preventing it from “maintaining” ship traffic. The dictionary 

definitions also suggest the phrase reaches improvement 

projects. “Maintain” is defined as “to keep in an existing state 

(as of repair, efficiency or validity): preserve from failure or 

decline,” and “navigation” as “ship traffic or commerce.” See 

Merriam-Webster’s Collegiate Dictionary (11th ed. 2005). 

These are capacious definitions; preserving “ship traffic” 

from “failure or decline” could call for a wide range of 

activities, including repairs, modifications, and 

improvements. 

Nonetheless, were we to find the statutory text 

ambiguous, Skidmore deference would be warranted and 

would support the Corps’ action.25

 25 We need not decide whether Chevron deference should 

attach. Riverkeeper contends it should not, given the 

informality of the agency’s action. Namely, it points out that 

the Corps did not engage in notice and comment rulemaking 

when it invoked Section 404(t), but acted on the basis of a 

Memorandum of Record. See United States v. Mead Corp., 

533 U.S. 218, 230-31 (2001) (holding “the want of” notice 

and comment procedures often compels in favor of not 

deferring to the agency). We need not settle this debate. At 

 A court will afford 
60

Skidmore deference upon consideration of “the thoroughness

evident in [an agency’s] consideration, the validity of its 

reasoning, its consistency with earlier and later 

pronouncements, and all those factors which give it power to 

persuade, if lacking power to control.” Skidmore, 323 U.S. at 

140. The most important considerations are whether the 

agency’s interpretation “is consistent and contemporaneous 

with other pronouncements of the agency and whether it is 

reasonable given the language and purpose of the Act.” 

Cleary ex. rel. Cleary v. Waldman, 167 F.3d 801, 808 (3d Cir. 

1999). The Corps’ interpretation of Section 404(t) is entitled 

to deference under these standards. Its reading did not 

contradict any of the agency’s prior statements about Section 

404(t) – the Corps had only once before invoked the 

exception, and in a context different from but not in conflict 

with that here. See In re Operation of Mo. River Sys. Litig.,

418 F.3d at 915 (affirming the Corps’ invocation of Section 

404(t) to release water from a reservoir and support 

downstream navigation in the Missouri River). The 

interpretation also was reasonable “given the language and 

purpose” of the statute, because the view that “maintain 

navigation” extends to activities necessary to maintain current 

levels of ship traffic, which is what the EA forecasted the 

project would do by enabling shippers to employ a larger 

vessel fleet, see supra note 5, is consistent with the plain 

meaning of “maintain” – i.e., to “preserve from failure or 

 

the least, Skidmore deference is due, and is sufficient to 

support the Corps’ action.
61

decline.” Finally, the canon that “[w]aivers of immunity must 

be construed strictly in favor of the sovereign,” see U.S. Dep’t 

of Energy v. Ohio, 503 U.S. 607, 615 (1992) (internal 

quotation marks and citation omitted), supports the Corps’ 

interpretation. Allowing “maintain navigation” to encompass 

the deepening project would have the effect of limiting the 

federal government’s waiver of sovereign immunity in the 

first part of Section 404(t).

Riverkeeper contends Skidmore deference is improper. 

First, it argues that Congress intended Section 404(t)’s 

“maintain navigation” authority to be “linked with the Corps’ 

historical authorities under the Rivers and Harbors Act of 

1899 . . . . to maintain navigation by preventing the 

obstruction of navigable waterways.” Riverkeeper Br. at 47. 

In other words, Congress only intended for “maintain 

navigation” to protect the Corps’ mandate to do things it did 

in 1899 – such as removing physical blockages from rivers or 

preventing activities that would impede the flow of 

waterborne commerce. The statutory language, however, 

suggests the opposite. Congress did not include a reference to 

the Rivers and Harbors Act in the text of Section 404(t) as it 

had done when it codified Section 511 in 1972. Compare 

CWA § 404(t) (“This section shall not be construed as 

affecting or impairing the authority of the Secretary to 

maintain navigation.”), with CWA § 511(a)(2) (“This chapter 

shall not be construed as . . . affecting or impairing the 

authority of the Secretary of the Army (A) to maintain 

navigation or (B) under the Act of March 3, 1899[.]”). This 

shows that if anything, Congress intended Section 404(t) to 

reach more broadly than the programs the Corps managed in 
62

1899 and to encompass the full scope of the Corps’ activities 

in 1977.26

 26 Furthermore, the Corps had significantly broader authority 

in 1899 than Riverkeeper acknowledges. The Rivers and 

Harbors Act contains twenty-eight pages of appropriations to 

the Corps for conducting “improvement” projects in the 

nation’s waterways. See Rivers and Harbors Act of 1899, ch. 

425, 30 Stat. 1121, 1121-1149 (“Be it enacted . . . [t]hat the 

following sums of money be, and are hereby, appropriated . . . 

to be expended under the direction of the Secretary of War 

and the supervision of the Chief of Engineers, for the 

construction, completion, repair, and preservation of the 

public works hereinafter named: Improving Moosabec Bar, 

Maine: Completing improvement, eleven thousand dollars. . . 

. For improvement of the Buffalo entrance to Erie Basic and 

Black Rock Harbor, New York . . . . Improving New York 

Harbor, New York . . . by a deep channel, two thousand feet 

wide and forty feet deep from the Narrows . . . one million 

dollars . . . Improving Port Chester Harbor, New York: 

Twenty-five thousand dollars, to be expended in enlargening 

the channel below and up to Town Dock to a depth of twenty 

feet . . . . Improving the outer bar, Brunswick Georgie: C.P. 

Goodyear, the contractor with the Government of the United 

States, to deepen the outer bar of Brunswick . . . . Improving

harbor at Pensacola, Florida: . . . seventy thousand dollars . . . 

to be used toward securing a channel depth of thirty feet . . . . 

Improving harbor at Mobile Alabama: . . . with the view of 

ultimately securing a channel twenty-three feet deep and one

hundred feet wide at the bottom . . . . Improving Galveston 
63

Finding the Corps’ interpretation of Section 404(t) 

worthy of deference under Skidmore, our final step is to 

determine whether the agency’s invocation of the exemption 

was arbitrary or capricious. See 5 U.S.C. §706(2)(A); Robert 

Wood Johnson Univ. Hosp., 297 F.3d at 284. It was neither.

After studying commerce patterns in the Delaware River for 

two decades and publishing three extensive reports, in 1992, 

1997, and 2009, the Corps concluded a five foot deepening 

project was necessary to preserve the current flow of 

navigation in the Delaware River. As the EA put it, this 

project was essential to “improve the economic efficiency of 

ships moving through the Delaware ports,” help shippers 

“more efficiently apportion operating costs,” and “allow 

current dry bulk and container vessels to carry more cargo as 

well as allow a fleet shift in the charger dry bulk market.” The 

Corps’ consideration of the issue was “thorough” and its 

determination was reasonable. See Skidmore, 323 U.S. at 140. 

Meanwhile, Delaware had sat on its permit application for 

eight years and, in December 2008, told the Corps it would 

need to submit an entirely new application. Given that the 

first phase of the project was scheduled, as of April 2009, to 

begin in August 2009, the Corps was warranted in invoking 

 

Ship Channel . . . by dredging or otherwise . . . . Deepening 

the channel from Galveston Harbor to Texas City, Texas . . . 

.” (emphases added)). Accordingly, even if Sections 511 or 

404(t) of the CWA circumscribed the Corps’ “maintain 

navigation” authority to its historical authorities in 1899, the 

latter included the execution of improvement and channel 

deepening projects. 
64

the exception to save the project from postponement or 

indefinite delay.

V.

New Jersey contends the Corps acted arbitrarily and 

capriciously under the Coastal Zone Management Act when it 

decided, as memorialized in a Memorandum of Record issued 

on November 9, 2009, to proceed with the project without 

providing supplemental consistency determinations to 

Delaware or New Jersey. Because “significant new 

information” had become available since the Corps submitted 

its initial CZMA determinations in 1997, New Jersey 

contends, supplemental determinations were required. 

According to New Jersey, the Corps’ conclusion to the 

contrary was arbitrary and capricious because it was 

grounded in the procedurally and substantively flawed EA. 

A.

The Coastal Zone Management Act of 1972 was 

enacted “to preserve, protect, develop, and where possible, to 

restore or enhance, the resources of the Nation’s coastal zone 

for this and succeeding generations,” and to “encourage and 

assist the states to exercise effectively their responsibilities in 

the coastal zone through the development and implementation 

of management programs to achieve wise use of the land and 

water resources of the coastal zone[.]” 16 U.S.C. § 1452(1),

(2). States’ “management programs” must provide for “the 

protection of natural resources,” as well as “improved 

coordination between State and Federal coastal zone 
65

management agencies.” Id. § 1452(2)(A), (J). Federal 

agencies conducting activities “within or outside the coastal 

zone” are required to provide the relevant state(s) with a 

“determination” that the activity “shall be carried out in a 

manner which is consistent to the maximum extent 

practicable with the enforceable policies of approved State 

management programs.” Id. § 1456(c)(1)(A), (C). The 

state(s), in turn, must either concur with or object to the 

federal agency’s determination. 15 C.F.R. § 930.41(a). A 

state “cannot unilaterally place an expiration date on its 

concurrence.” Id. § 930.41(d). Moreover, even if a state 

objects, the federal agency can proceed over the state’s 

objection if it “conclude[s] that its proposed action is fully 

consistent with the enforceable policies of the management 

program.” Id. § 930.43(d)(2).

The CZMA regulations require federal agencies to 

supplement their consistency determinations if “the proposed 

activity will affects any coastal use or resource substantially 

different than originally described.” Id. § 930.46(a). 

“Substantially different” effects are “reasonably forseeable,”

and thereby warrant a supplemental determination, if: (1) the 

agency “makes substantial changes in the proposed activity 

that are relevant to the manageable program enforceable 

policies”; or (2) there are “significant new circumstances or 

information relevant to the proposed activity and [its] effect 

on any coastal use or resources.” Id. § 930.46(a)(1), (2). 

B.

The Corps’ conclusion in the Memorandum of Record 
66

that it need not provide supplemental consistency 

determinations to either state under the CZMA was 

reasonable. Federal agencies are required to submit 

supplemental determinations in either of two instances: if the 

agency makes “substantial changes in the proposed activity,” 

or if “significant new circumstances or information relevant 

to the proposed activity and [its] effect on any coastal use or 

resource” arise. Id. § 930.46(a)(1), (2). Relying on the EA,

the Corps concluded neither situation was present. With 

respect to “substantial changes” to the project, the 

Memorandum of Record identified three alterations that had 

been made since 1997, when the original CZMA consistency 

determinations were transmitted: (i) four disposal sites 

identified in the SEIS had been eliminated; (ii) sand would 

now be deposited directly onto Broadkill Beach, rather than 

initially stockpiled offshore; and (iii) a planned beneficial use 

site at Egg Point Island was no longer needed. None of these 

changes were “substantial,” the Corps determined, because 

the 2009 EA had found that none would cause serious 

impacts to the environment. With respect to “significant new 

circumstances or information,” the Memorandum of Record 

noted both the oil spill of 2004 and the recent surveys 

showing an expansion of the shortnose sturgeon in the region. 

But again, relying on the EA and a 2009 Biological 

Assessment the agency prepared for NMFS, the Corps 

concluded neither development was “significant” because 

neither would cause adverse environmental consequences not 

anticipated in the SEIS. The Corps was justified in relying on 

these recent and thorough reports. See supra. The agency’s 

conclusion that 15 C.F.R. § 930.46(a) had been satisfied, and 
67

that no supplemental consistency determinations were 

required, was neither arbitrary nor capricious.

VI.

For over twenty years, the Corps has devoted 

substantial efforts to evaluating the proposed five foot 

deepening project for the Delaware River. It has published 

three comprehensive NEPA reports, received multiple rounds 

of public comments, and had immeasurable communications 

with the relevant state and federal agencies. Its decision in 

2009 to proceed with the project was consistent with NEPA, 

the CWA, and the CZMA. Accordingly, we will affirm the 

judgments of the District Courts of New Jersey and Delaware.