Greenwich Terminals LLC v. Department of Natural Resources & Curran v. Department of Natural Resources
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Opinion
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
GREENWICH TERMINALS LLC, ) GLOUCESTER TERMINALS LLC and ) GMT REALTY, LLC, ) ) Appellants, ) ) v. ) C.A. No. N24A-06-002 KMM ) DEPARTMENT OF NATURAL ) RESOURCES AND ENVIRONMENTAL ) CONTROL AND DIAMOND STATE ) PORT CORPORATION, ) ) Appellees. ) ) ) WALTER F. CURRAN, ) ) Appellant, ) ) v. ) C.A. No. N24A-06-005 KMM ) DEPARTMENT OF NATURAL ) RESOURCES AND ENVIRONMENTAL ) CONTROL AND DIAMOND STATE ) PORT CORPORATION, ) ) Appellees. ) )
Date Submitted: January 14, 2025 Date Decided: April 14, 2025
MEMORANDUM OPINION AND ORDER
Appeal from Environmental Appeals Board: Affirmed in part, Reversed and Remanded in part. Thaddeus J. Weaver, DILWORTH PAXSON LLP, Wilmington, DE, Shoshana (Suzanne Ilene) Schiller (argued), Jill Hyman Kaplan, Brandon P. Matsnev, MANKO GOLD KATCHER FOX LLP, Bala Cynwyd, PA, Attorneys for Appellants Greenwich Terminals LLC, Gloucester Terminals LLC, and GMT Realty, LLC.
Patrick M. Brannigan, ECKERT SEAMANS CHERIN & MELLOTT, LLC, Wilmington, DE, Michelle M. Skjoldal, ECKERT SEAMANS CHERIN & MELLOTT, LLC, Harrisburg, PA, David A. Rockman (argued), ECKERT SEAMANS CHERIN & MELLOTT, LLC, Pittsburgh, PA, Attorneys for Appellant Walter F. Curran.
Devera Breeding Scott, (argued) STATE OF DELAWARE DEPARTMENT OF JUSTICE, New Castle, DE, Attorneys for Appellees Department of Natural Resources and Environmental Control.
Wali W. Rushdan II, William J. Burton (argued), Gabriella Mouriz, BARNES & THORNBURG LLP, Wilmington, DE, Attorneys for Appellee Diamond State Port Corporation.
ii I. INTRODUCTION
The former DuPont Edge Moor facility, located along the Delaware River
Channel (the “Channel”) just east of Wilmington, was plagued by toxic
contamination for years. After the plant closed, Diamond State Port Corporation
(“Diamond State”) purchased the site and announced plans to develop a new state-
of-the-art port. The project provided both a solution to the contamination and a boost
to Delaware’s economy. The new port would quadruple the Wilmington Port’s
capacity, cleanup the toxic waste, create over 10,000 jobs, and generate millions in
tax revenue for Delaware.
To proceed with the project, Diamond State applied for various state and
federal permits, including a permit from the Department of Natural Resources and
Environmental Control (“DNREC”) under the Subaqueous Lands Act. Diamond
State’s DNREC permit application drew lots of support and several objections,
including objections by Walter F. Curran (“Curran”), and Greenwich Terminals LLC,
Gloucester Terminals LLC, and GMT Realty, LLC (collectively “Greenwich”).
Curran raised objections based on the project’s impact on recreational fishing in the
area. Greenwich, which owns and operates ports north of the site, raised objections
based on the negative impact the new port would have on navigation in the Channel,
among other concerns.
1 After a long public comment period and a hearing, DNREC’s Secretary issued
an Order approving Diamond State’s permit application. Greenwich and Curran
appealed to the Environmental Appeals Board1 (the “Board”). The Board
consolidated the appeals and heard oral argument after the parties submitted
testimony through affidavits. The Board ruled that Greenwich and Curran did not
carry their burden to demonstrate that the Secretary’s Order was not supported by
the evidence in the record, and DNREC’s decision was affirmed.
Here, Greenwich argues that the Board’s procedural errors require its decision
to be reversed and remanded, asserting that the Board applied an incorrect standard
of review and failed to make factual findings. Curran argues that the Board
improperly consolidated his appeal with the other appellants. Both argue that the
Board’s decision is not supported by substantial evidence and that the Board
committed error by not requiring Diamond State to file an updated permit
application.
Curran has shown no prejudice, let alone undue prejudice, by the
consolidation. The Board did not abuse its discretion in consolidating the appeals.
The Board’s ruling on consolidation is AFFIRMED.
1 The Philadelphia Regional Port Authority (“Philadelphia Port Authority”) also appealed to the Board but it did not pursue a further appeal in this Court. 2 The parties spar over whether the Board effectively rubber-stamped DNREC’s
decision or applied the appropriate standard of review. Greenwich points to
language in the decision that it says supports the notion that the Board essentially
conducted a “check-the-box” review. Diamond State and DNREC argue that the
Board properly deferred to the Secretary’s judgment. But because the Board did not
explain its reasoning, the Court cannot determine what level of review the Board
actually applied.
The Board concluded that Greenwich and Curran did not sustain their burden
of proof on appeal. Given the magnitude of the project and the significant amount
of dredging that will be required, it appears that Greenwich’s and Curran’s experts
raised valid and serious concerns, but the Board summarily rejected this evidence
without explanation. While this Court’s review of an administrative board’s decision
is deferential, it cannot defer to a decision that fails to reflect a rational consideration
of the evidence. The Court cannot conduct its review if the administrative board
does not make findings and provide an explanation for its decision. Here, the Board
did not make factual findings, provide an analysis of the evidence presented, or
explain its reasoning. Accordingly, the decision is REVERSED, and the matter is
REMANDED.
3 II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Site and the Parties
Until 2016, DuPont, and later Chemours, operated a titanium dioxide
production facility at its Edge Moor facility.2 The site is approximately 115 acres
located along the Delaware River Channel just east of Wilmington. The site has
been plagued by toxic contamination for years. The facility was demolished prior
to Diamond State’s purchase of the site in 2017.
The Channel begins just off the Delaware coast between Lewes, Delaware and
Cape May, New Jersey and runs up to Trenton, New Jersey. Many commercial ports
are situated along the Channel. The Pilots’ Association for the Bay & River
Delaware (the “Pilots’ Association”) is responsible for the safe navigation of
commercial vessels in the Channel.3 A pilot will board a ship before it enters the
Channel and directs the navigation of the vessel through the Channel.4
Diamond State is “a public entity within the Delaware Department of State,
created to support the public interest and to serve Delaware citizens.”5 It was created
in “1995 [after] the State of Delaware purchased the Port of Wilmington from the
2 Secretary’s Order, p. 2, PORTAPPX000029. 3 https://delpilots.org/ 4 Id. 5 Environmental Appeals Board Hearing Transcript, February 13, 2024 (“Board Tr.”), p. 140, CURRANAPPX-0162. 4 City of Wilmington.”6 Diamond State is responsible for promoting and maintaining
the Port of Wilmington as a competitive and viable commercial operation.7
Curran is a Delaware citizen who has a background in the shipping industry.
He worked as a Stevedore/Marine Terminal operator at several ports and assisted in
dredging projects.8 He has worked, boated, and fished on the Delaware River in the
area near the proposed new port for over 30 years.9 In recent years, he fished on the
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
GREENWICH TERMINALS LLC, ) GLOUCESTER TERMINALS LLC and ) GMT REALTY, LLC, ) ) Appellants, ) ) v. ) C.A. No. N24A-06-002 KMM ) DEPARTMENT OF NATURAL ) RESOURCES AND ENVIRONMENTAL ) CONTROL AND DIAMOND STATE ) PORT CORPORATION, ) ) Appellees. ) ) ) WALTER F. CURRAN, ) ) Appellant, ) ) v. ) C.A. No. N24A-06-005 KMM ) DEPARTMENT OF NATURAL ) RESOURCES AND ENVIRONMENTAL ) CONTROL AND DIAMOND STATE ) PORT CORPORATION, ) ) Appellees. ) )
Date Submitted: January 14, 2025 Date Decided: April 14, 2025
MEMORANDUM OPINION AND ORDER
Appeal from Environmental Appeals Board: Affirmed in part, Reversed and Remanded in part. Thaddeus J. Weaver, DILWORTH PAXSON LLP, Wilmington, DE, Shoshana (Suzanne Ilene) Schiller (argued), Jill Hyman Kaplan, Brandon P. Matsnev, MANKO GOLD KATCHER FOX LLP, Bala Cynwyd, PA, Attorneys for Appellants Greenwich Terminals LLC, Gloucester Terminals LLC, and GMT Realty, LLC.
Patrick M. Brannigan, ECKERT SEAMANS CHERIN & MELLOTT, LLC, Wilmington, DE, Michelle M. Skjoldal, ECKERT SEAMANS CHERIN & MELLOTT, LLC, Harrisburg, PA, David A. Rockman (argued), ECKERT SEAMANS CHERIN & MELLOTT, LLC, Pittsburgh, PA, Attorneys for Appellant Walter F. Curran.
Devera Breeding Scott, (argued) STATE OF DELAWARE DEPARTMENT OF JUSTICE, New Castle, DE, Attorneys for Appellees Department of Natural Resources and Environmental Control.
Wali W. Rushdan II, William J. Burton (argued), Gabriella Mouriz, BARNES & THORNBURG LLP, Wilmington, DE, Attorneys for Appellee Diamond State Port Corporation.
ii I. INTRODUCTION
The former DuPont Edge Moor facility, located along the Delaware River
Channel (the “Channel”) just east of Wilmington, was plagued by toxic
contamination for years. After the plant closed, Diamond State Port Corporation
(“Diamond State”) purchased the site and announced plans to develop a new state-
of-the-art port. The project provided both a solution to the contamination and a boost
to Delaware’s economy. The new port would quadruple the Wilmington Port’s
capacity, cleanup the toxic waste, create over 10,000 jobs, and generate millions in
tax revenue for Delaware.
To proceed with the project, Diamond State applied for various state and
federal permits, including a permit from the Department of Natural Resources and
Environmental Control (“DNREC”) under the Subaqueous Lands Act. Diamond
State’s DNREC permit application drew lots of support and several objections,
including objections by Walter F. Curran (“Curran”), and Greenwich Terminals LLC,
Gloucester Terminals LLC, and GMT Realty, LLC (collectively “Greenwich”).
Curran raised objections based on the project’s impact on recreational fishing in the
area. Greenwich, which owns and operates ports north of the site, raised objections
based on the negative impact the new port would have on navigation in the Channel,
among other concerns.
1 After a long public comment period and a hearing, DNREC’s Secretary issued
an Order approving Diamond State’s permit application. Greenwich and Curran
appealed to the Environmental Appeals Board1 (the “Board”). The Board
consolidated the appeals and heard oral argument after the parties submitted
testimony through affidavits. The Board ruled that Greenwich and Curran did not
carry their burden to demonstrate that the Secretary’s Order was not supported by
the evidence in the record, and DNREC’s decision was affirmed.
Here, Greenwich argues that the Board’s procedural errors require its decision
to be reversed and remanded, asserting that the Board applied an incorrect standard
of review and failed to make factual findings. Curran argues that the Board
improperly consolidated his appeal with the other appellants. Both argue that the
Board’s decision is not supported by substantial evidence and that the Board
committed error by not requiring Diamond State to file an updated permit
application.
Curran has shown no prejudice, let alone undue prejudice, by the
consolidation. The Board did not abuse its discretion in consolidating the appeals.
The Board’s ruling on consolidation is AFFIRMED.
1 The Philadelphia Regional Port Authority (“Philadelphia Port Authority”) also appealed to the Board but it did not pursue a further appeal in this Court. 2 The parties spar over whether the Board effectively rubber-stamped DNREC’s
decision or applied the appropriate standard of review. Greenwich points to
language in the decision that it says supports the notion that the Board essentially
conducted a “check-the-box” review. Diamond State and DNREC argue that the
Board properly deferred to the Secretary’s judgment. But because the Board did not
explain its reasoning, the Court cannot determine what level of review the Board
actually applied.
The Board concluded that Greenwich and Curran did not sustain their burden
of proof on appeal. Given the magnitude of the project and the significant amount
of dredging that will be required, it appears that Greenwich’s and Curran’s experts
raised valid and serious concerns, but the Board summarily rejected this evidence
without explanation. While this Court’s review of an administrative board’s decision
is deferential, it cannot defer to a decision that fails to reflect a rational consideration
of the evidence. The Court cannot conduct its review if the administrative board
does not make findings and provide an explanation for its decision. Here, the Board
did not make factual findings, provide an analysis of the evidence presented, or
explain its reasoning. Accordingly, the decision is REVERSED, and the matter is
REMANDED.
3 II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Site and the Parties
Until 2016, DuPont, and later Chemours, operated a titanium dioxide
production facility at its Edge Moor facility.2 The site is approximately 115 acres
located along the Delaware River Channel just east of Wilmington. The site has
been plagued by toxic contamination for years. The facility was demolished prior
to Diamond State’s purchase of the site in 2017.
The Channel begins just off the Delaware coast between Lewes, Delaware and
Cape May, New Jersey and runs up to Trenton, New Jersey. Many commercial ports
are situated along the Channel. The Pilots’ Association for the Bay & River
Delaware (the “Pilots’ Association”) is responsible for the safe navigation of
commercial vessels in the Channel.3 A pilot will board a ship before it enters the
Channel and directs the navigation of the vessel through the Channel.4
Diamond State is “a public entity within the Delaware Department of State,
created to support the public interest and to serve Delaware citizens.”5 It was created
in “1995 [after] the State of Delaware purchased the Port of Wilmington from the
2 Secretary’s Order, p. 2, PORTAPPX000029. 3 https://delpilots.org/ 4 Id. 5 Environmental Appeals Board Hearing Transcript, February 13, 2024 (“Board Tr.”), p. 140, CURRANAPPX-0162. 4 City of Wilmington.”6 Diamond State is responsible for promoting and maintaining
the Port of Wilmington as a competitive and viable commercial operation.7
Curran is a Delaware citizen who has a background in the shipping industry.
He worked as a Stevedore/Marine Terminal operator at several ports and assisted in
dredging projects.8 He has worked, boated, and fished on the Delaware River in the
area near the proposed new port for over 30 years.9 In recent years, he fished on the
Delaware River three to four times a year.
Greenwich Terminals LLC owns and operates the Packard Avenue Marine
Terminal at the Port of Philadelphia.10 The ships that call on the port use the
Channel, delivering all types of goods. A significant portion of the deliveries is
perishable products, which have a limited shelf-life.11 Receiving ships into the port
is highly sequenced; delays in shipments put the value of the goods at risk, impact
longshoremen staffing and tugboats scheduling, and the ability to receive other ships,
all resulting in increased costs.12
Gloucester Terminals LLC owns and operates the Gloucester Marine Terminal
and Paulsboro Marine Terminal in New Jersey.13 These terminals also receive ships
6 Board Tr., p. 140, CURRANAPPX-0162. 7 https://port.delaware.gov/. 8 Curran Affidavit, CURRANAPPX-0685. 9 Id. 10 Whene Affidavit, PORTAPPX000339. 11 Id. 12 Whene Affidavit, PORTAPPX000340-41. 13 Innskeep Affidavit, PORTAPPX000346. 5 traveling from the Atlantic up the Channel, carrying perishable goods.14 The larger
ships can traverse the Channel only at high tide, so stoppages along the Channel can
result in delaying deliveries by more than 12 hours.15
B. The Project
In 2020, Diamond State announced it was developing the Edgemoor site into
a new state-of-the-art port to expand the current Wilmington Port (the “Project”).
The new port would vastly expand the port’s capacity, cleanup the toxic waste, and
create “a massive economic opportunity for the people of Delaware.”16
To compete for the business of larger ships that pass through the Panama
Canal,17 the Project requires large-scale dredging in the area of the new port to
accommodate these ships’ depth requirements.18 In addition to the dredging required
for the port’s construction, annual dredging would be required to maintain the
needed depth.
14 Innskeep Affidavit, PORTAPPX000346. 15 Innskeep Affidavit, PORTAPPX000348. 16 Board Decision, p. 16, PORTAPPX000016. 17 The Panama Canal expanded its capacity to accommodate larger ships (known as “New Panamax” ships). These ships can carry more than twice the cargo as ships passing through the canal before the expansion. DSPC_PORTOPAPPX-0007-8. 18 The main Channel was dredged to increase its depth from 38 feet to 45 feet. DSPC_PORTOPAPPX-0007-8. See Greenwich Terminals LLC v. U.S. Army Corps of Engineers, 2024 WL 4595590, at *2 (D. Del. Oct. 28, 2024). 6 1. The Permit Application
In June 2020, Diamond State applied for a Subaqueous Lands Permit to
construct the new port (the “Permit”).19 The Permit application proposed installing
a 2,600 foot long pile-supported wharf and 3,200 feet of shoreline bulkhead.20 The
new facility would occupy over 5.5 acres of subaqueous lands and require dredging
3.3 million cubic feet of river sediment and underlying soil to increase the depth to
45 feet.21 The dredging would occur between September 1 and December 31, and
the dredged material would be removed through a pipeline discharge to a confined
disposal facility.22 The initial dredging is expected to take over a year.23
Maintenance dredging is expected to be performed on an annual basis, and shoaling
fans were “being pursued as means of reducing the frequency of dredging.”24
2. The Turning Basin
The proposed port sits along the Channel at a point that is narrowed by shallow
tidal flats known as the Cherry Island Flats.25 The Project contemplates a turning
basin which would allow ships to navigate in and out of the port. The basin extends
19 Diamond State Permit Application, PORTAPPX000091-126. 20 Diamond State Permit Application, PORTAPPX000117. 21 Diamond State Permit Application, PORTAPPX000120; Secretary’s Order, p. 2, PORTAPPX000029. 22 Diamond State Permit Application, PORTAPPX000124-25. 23 Diamond State Permit Application, PORTAPPX000122. 24 Diamond State Permit Application, PORTAPPX000121. 25 Kichner Affidavit, PORTAPPX000389-91. 7 into the main navigational path in the Channel, depicted by the circle in the drawing
below.
3. MITAGS Study
With the Permit application, Diamond State submitted the Full Mission Ship
Simulation for Edgemoor Navigation Feasibility Study conducted by the Maritime
Institute of Technology and Graduate Studies (“MITAGS Study”).26 The study’s
objective was to “demonstrate that the terminal will have minimal adverse impact
on vessels transiting inbound and outbound on the Delaware [River].”27 “The
primary focus of the study was ship maneuvering behavior.”28 It does not address
the turning basin’s impact on ships navigating in the main Channel. The MITAGS
26 MITAGS Study, PORTAPPX000412-80; Board Tr., p. 18, CURRANAPPX-0040. 27 Id. 28 MITAGS Study, PORTAPPX000417. 8 Study was conducted via a ship simulator, and the tests were conducted under clear
visibility conditions.29 The study concluded that “[t]he simulation results indicated
the proposed Edgemoor Terminal would have minimal impact on ships as they
transit the existing navigation channel.”30 The MITAGS Study was “preliminary”
and [“b]erthing procedures, tug power required, and emergency procedures will be
developed in future simulation studies.”31
4. Public Comments
As part of the permitting process, a virtual public hearing was held on
September 29, 2020, which was attended by DNREC staff, representatives of
Diamond State, and members of the public.32 The public comment period remained
open until December 1, 2020, and approximately 200 comments were received by
DNREC, including comments from Curran and Greenwich.33
5. The Mitigation Plan
DNREC required that Diamond State submit a State of Delaware
Compensatory Mitigation Plan (the “Mitigation Plan”).34 Diamond State’s
Mitigation Plan contained three phases. In Phase One, Diamond State will construct
29 MITAGS Study, PORTAPPX000418, 424. 30 MITAGS Study, PORTAPPX000439. 31 Id. 32 Hearing Officer’s Report, PORTAPPX00038-90. 33 Id. 34 Board Tr., p. 121, CURRANAPPX-0143. DNREC rejected Diamond State’s initial mitigation proposal but accepted the plan after modifications were made. Board Tr., p. 133, CURRANAPPX- 0155. 9 one acre of intertidal wetlands north of Fox Point State Park and maintain and
monitor the wetlands for three years to ensure successful habitat creation.35
In Phase Two, Diamond State will fund an environmental DNA Fisheries
Monitoring Program. This will help DNREC “evaluate and understand potential
impacts of the proposed project on both resident and transient fish species that utilize
the Delaware River and will help to supplement traditional data collection methods
used by DNREC fisheries managers in other water bodies throughout the State of
Delaware.”36
Phase Three requires Diamond State to make improvements at Fox Point State
Park, including walking trails, an observation platform, and removal of vegetation
to improve views of the river, in addition to other potential improvements.37
C. DNREC Regulations
Under the Subaqueous Lands Act, DNREC is charged with issuing permits to
“deposit material upon or remove or extract materials from, or construct, modify,
repair or reconstruct, or occupy any structure or facility upon submerged lands or
tidelands.”38 The corresponding regulations are found in Section 7504 of the
Administrative Code.39
35 Hearing Officer’s Report, PORTAPPX00058. 36 Id. 37 Hearing Officer’s Report, PORTAPPX000059. 38 7 Del. C. § 7205(a). 39 7 Del. Admin. C. § 7504, Regulations Governing the Use of Subaqueous Lands. 10 Under Regulation 4.6, DNREC “shall consider the public interest in any
proposed activity which might affect the use of subaqueous lands” including:
4.6.3: The potential effect on the public with respect to commerce, navigation, recreation, aesthetic enjoyment, natural resources, and other uses of the subaqueous lands.40
4.6.7: Given the inability for avoidance or alternatives, the extent to which the applicant can employ mitigation measures to offset any losses incurred by the public.
In determining whether to approve a permit application, under Regulation 4.7,
DNREC “shall” consider:
4.7.1.2: Any effect on shellfishing, finfishing, or other recreational activities, and existing or designated water uses.41
4.7.1.3: Any harm to aquatic or tidal vegetation, benthic organisms or other flora and fauna and their habitats.42
4.7.4: …whether any significant impacts or potential harm could be offset or mitigated by appropriate actions or changes to the proposed activity by the applicant. If so, the required mitigating measures may be included as conditions of the permit or lease.
4.7.5.1: The degree to which the project represents an encroachment on or otherwise interferes with public lands, waterways or surrounding private interests.43
40 7 Del. Admin. C. § 7504-4.6.3 (emphasis added). 41 7 Del. Admin. C. § 7504-4.7.1.2. 42 7 Del. Admin. C. § 7504-4.7.1.3. 43 7 Del. Admin. C. § 7504-4.7.5.1. 11 Under Section 4.11.1.2, “Projects shall be designed” to meet the “objective of
[m]aintain[ing] the navigability of channels.”44
Finally, Section 3.1.3, requires an applicant “maintain the application in a
current state.”45
D. DNREC Approval Process
1. United States Coast Guard Email
During the public comment period, Greenwich submitted written comments
to DNREC’s Lisa Vest, a Regulatory Specialist in the Office of the Secretary.46
Under the “Navigation” comments, Greenwich raised concerns over the turning
basin and its negative impact on other vessels’ navigation in the main Channel. The
comment also raised concerns that neither the MITAGS Study nor Diamond State’s
application addressed potential emergency situations in the main Channel by ships
entering or exiting the new port.
In April 2021, Laura Mensch, DNREC Principle Planner in the Division of
Climate, Coastal and Energy, reached out to a colleague in New Jersey seeking an
introduction to personnel in the United States Coast Guard (“USCG”) for input on
the Project’s impact on navigation in the main Channel and the safety concerns.47
44 7 Del. Admin. C. § 7504-4.11.1.2. 45 7 Del. Admin. C. § 7504-3.1.3. 46 Greenwich Comments, pp. 3-5, PORTAPPX000569-75. 47 Mensch email, PORTAPPX000685. 12 Ms. Mensch was connected with a Marine Information Specialist at the USCG in
New Jersey. On April 13, 2021, Ms. Mensch explained that DNREC received
Greenwich’s comments expressing concerns over safety and navigation issues in the
main Channel. Ms. Mensch requested the USCG’s “thoughts on the navigational
component of this project, and on whether the attached supplemental information
provided by [Diamond State’s consultant] addresses navigation concerns associated
with the operation of the port.”48
Having not received a response from the USCG, Ms. Mensch followed up by
email on June 7.49 Ms. Mensch reached out again on August 7, and the Marine
Information Specialist responded that the issue would be better addressed by the
Delaware Bay Sector.50
Ms. Mensch then reached out to the Delaware Bay Sector Commander on
August 17, 2021.51 Ms. Mensch provided additional information and followed up
with the Commander in early September, stating on September 8 “I do apologize for
reaching out again so soon but I have been asked to finalize our determination on
our project review and this is one final outstanding piece.”52
48 Mensch email, PORTAPPX000683. 49 Id. DNREC felt Diamond State’s “submission lack information and analysis addressing emergency procedures.” PORTAPPX000565. 50 Mensch email, PORTAPPX000693. 51 Id. 52 Mensch email, PORTAPPX000760. 13 On September 17, the Commander wrote: “Ms. Mensch, After review of the
documents you have provided Sector Delaware Bay does not see this project posing
a risk to safe navigation”53 (the “USCG Email”).
2. Pilots’ Letter
In response to public comments expressing concern over the potential
negative impact on navigation in the main Channel, Diamond State’s consultant
obtained a letter from the President of The Pilots’ Association (the “Pilots’ Letter”).54
The Pilots’ Letter stated that it reviewed the MITAGS Study and was familiar with
it because the Pilots participated in the study’s simulations.55 The one-page letter
referenced a recommended technical modification to the Project, which had been
incorporated into the Project’s plan, and then quoted the MITAGS Study that “[t]he
simulation results indicated the proposed Edgemoor Terminal would have minimal
impact on ships as they transit the existing navigation channel.”56 The Pilots’ Letter
did not include any analysis.
3. Technical Response Memorandum
After the public hearing and comment period, Ms. Vest requested technical
experts in DNREC’s Division of Water to address the concerns raised by the public
53 PORTAPPX000764. 54 Hearing Officer’s Report, PORTAPPX000056. 55 Pilots’ Letter, PORTAPPX000776. 56 Id. 14 comments and “offer conclusions and recommendations” regarding the pending
Permit.57 In response, the technical experts prepared a Technical Response
Memorandum (“TRM”), dated September 21, 2021. It organized the public
comments in opposition to the Permit into 12 categories.58 Relevant to these appeals
are Comments 2, 9, and 12, summarized below.
(a) Comment 2: “The proposed shoaling fans pose risk to aquatic life and water quality.”
Diamond State’s original Permit application included shoaling fans as an anti-
sedimentation technique to minimize the need for maintenance dredging.59
DNREC’s Division of Fish and Wildlife (“DWF”), Fisheries Section expressed
concerns that the fans would increase fish mortality and degrade aquatic habitats in
the Project area.60 DWF commented that fish caught in the fans may be killed, fan
intakes would entrap fish eggs and larvae, and fan noise could alter fish spawning
runs. In response to these concerns, Diamond State removed the shoaling fans from
the Project.
The TRM determined that removal of the fans “coupled with the proposed
compensatory mitigation package, including the habitat restoration/creation work at
57 Hearing Officer’s Report, p. 6, PORTAPPX000038-90. 58 TRM, PORTAPPX00062-90; CURRANAPPX-351-64. 59 TRM, PORTAPPX00065; CURRANAPPX-354. 60 CURRANAPPX-355. 15 Fox Point State Park61 (FPSP) and the enhanced environmental DNA monitoring
address the significant portions” of DWF’s concern under Sections 4.7.1.2, 4.7.1.3,
4.7.1.4, and 4.7.4
(b) Comment 9: “The proposed project will result in a loss of recreational fishing and crabbing.”
To minimize the impact on two endangered species of sturgeon known to
habitate near the Project, DNREC prohibited all in-water work during fish spawning
season from March 15 to June 30.62 This included all dredging activities.63
DNREC also required in-situ turbidity monitoring near the Cherry Island
Flats, which is an important fish habitat and a spawning area for striped bass, to
ensure no adverse effects.64
The TRM noted that in addition to the components of the Mitigation Plan,
Diamond State was providing further mitigation at Brandywine Creek State Park in
Wilmington. The TRM determined that these mitigation efforts “are considered
adequate mitigation pursuant to Subaqueous Lands Regulation Sections 4.7.1.4 and
4.7.4.”65
61 Fox Point State Park is north of the Project site. 62 TRM, PORTAPPX000070-71; CURRANAPPX-359-60. 63 TRM, PORTAPPX000071; CURRANAPPX-360. 64 Id. 65 Id. 16 (c) Comment 12: “Incomplete/Insufficient navigational studies, particularly for emergency scenarios.”
The TRM noted that the MITAGS Study “appears to reasonably, conclude that
‘The simulation results indicated the proposed Edgemoor Terminal would have
minimal impact on ships as they transit the existing navigation channel.’”66
Public comments expressed concern over the turning basin negatively
impacting ship navigation in the main Channel and in emergency situations, such as
loss of power.67 These comments were to be addressed by Diamond State. In
response, Diamond State submitted the Pilots’ Letter. The TRM stated that the
Pilots’ Letter concurred with the MITAGS Study that the “proposed Edgemoor
terminal would have minimal impacts on ships traveling on the existing navigation
channel.”68
The TRM then stated that DNREC sought input from the USCG “on this
concern” and that it did “not see this project posing a risk to safe navigation.”69 The
TRM determined that the USCG Email and Pilots’ Letter “adequately addressed the
expressed navigational concerns pursuant to Subaqueous Lands Regulation Sections
4.8.4.”70
66 TRM, PORTAPPX000073; CURRANAPPX-362 (emphasis in original). 67 Id. 68 CURRANAPPX-363. 69 TRM, PORTAPPX000074; CURRANAPPX-363. 70 Id. 17 The TRM concluded that the Permit application and subsequent submissions
provided “adequate justification and detail to support” the Project. It also concluded
that DNREC obtained “independent confirmation” from external agencies, including
the USCG, evaluating concerns beyond DNREC’s “typical regulatory purview.”
The TRM found that it “provided sufficient detail and assurances to support the
issuance” of a Subaqueous Land Permit.71
4. Hearing Officer’s Report
The Hearing Officer’s Report (the “Officer’s Report”), dated September 29,
2021, is from Lisa Vest to DNREC’s Secretary.72 The Officer’s Report identified the
record from the public hearing, summarized the TRM’s 12 categories of public
comments and its conclusions on each category, and summarized the components of
Diamond State’s Mitigation Plan.73 The Officer’s Report stated that the DNREC
experts who prepared the TRM (which was attached to the Officer’s Report)
“conducted a comprehensive review” of the Permit application and information
provided by Diamond State, reviewed the Mitigation Plan, and “considered all
statutes and regulations” that govern the Project and recommended that the Permit
be approved.74
71 TRM, PORTAPPX000074; CURRANAPPX-0363. 72 CURRANAPPX-331. 73 CURRANAPPX-0335, 343, 378-79. 74 Hearing Officer’s Report, p. 21, PORTAPPX000059. 18 Ms. Vest “f[oun]d and conclude[d]” that Diamond State complied with all
statutes and regulations, and the record supported TRM’s recommendation. Ms. Vest
then recommended that the Secretary adopt her findings and conclusions that
DNREC: has jurisdiction, provided proper notice and held a public hearing,
considered all timely public comments, and “carefully considered the factors
required to be weighed in issuing the [Permit].” She concluded that the record
supported approval of the Permit.75
5. Secretary’s Order
The next day, DNREC Secretary issued an order approving the Permit (the
“Secretary’s Order”). The Secretary’s Order reiterated the procedural history of the
Permit application and public hearing and comments.76 The order then summarized
the TRM, Officer’s Report, and the DNREC Memo on the Mitigation Plan.77
Reiterating the conclusions from the TRM, the order stated that all public
comments were responded to and the Department “carefully considered the factors
required to be weighed in issuing the [Permit].”78 The Secretary “f[oun]d and
conclude[d]” that Diamond State complied with all statutes and regulations and
75 Hearing Officer’s Report, pp. 22-23, PORTAPPX000060-61. 76 Secretary’s Order, pp. 1-5, CURRANAPPX-0380-84. 77 Id., pp. 6-8, CURRANAPPX-0385-87. 78 Id., p. 10, CURRANAPPX-0389. 19 approved the Permit. Accordingly, the order then made the conclusions
recommended by the Hearing Officer.79
III. APPEALS TO THE BOARD
On October 20, 2021, three objectors appealed the Secretary’s Order to the
Board.80 After motion practice, the Board consolidated the appeals. The parties
stipulated to submitting testimony by affidavit. After briefing, the parties presented
oral argument to the Board.
A. Consolidation
In February 2022, Greenwich and the Philadelphia Port Authority moved to
consolidate their appeals.81 Diamond State and DNREC filed a motion to
consolidate all the appeals.82 Curran opposed consolidation because of time
constraints, among other grounds.83
On March 10, 2022, the Board consolidated the appeals, stating that it was the
“most efficient way to proceed.”84 Additionally, the Board encouraged “the parties
to coordinate in an effort to establish an agreed upon mode of presentation and avoid
repetitive and duplicative presentations.”85
79 Id., pp. 9-10, CURRANAPPX-0388-89. 80 An additional objector also appealed but their appeals were dismissed for lack of standing or failure to have legal representation. CURRANAPPX-0645-62. 81 DSPCAPPX-0133-44. 82 DSPCAPPX-0169-86. 83 PORTAPPX000894-97; CURRANAPPX-0669. 84 CURRANAPPX-0666. 85 Id. 20 The parties conferred and submitted a schedule to hold the merits hearing on
October 11 and 25, 2022. But because the Board could not establish a quorum for
the proposed hearing dates, “the parties agree[d] to the submission of affidavits as
the means of introducing testimony and exhibits and to the scheduling of oral
argument in February 2023.”86 The Board did not sign the proposed schedule, but
instead informed the parties that it would be unable to establish a quorum for the
next possible hearing date, in June.87 The parties again agreed to submit testimony
through affidavits and submitted a proposed Stipulated Amended Scheduling Order
on August 2, 2023, which was approved.88
B. Additional Evidence
The record before the Board included the entire record before DNREC and
the evidence the parties submitted to the Board.
1. Greenwich Appeal
Greenwich continued to assert objections based on safety concerns, the impact
on traffic in the main Channel, dredging, and removal of the shoaling fans. It also
asserted that the Permit application was incomplete because Diamond State failed to
update it after it removed the shoaling fans., and after removal of the shoaling fans,
86 DSPCAPPX-0636. 87 DSPCAPPX-0650. 88 DSPCAPPX-0636, 0651-56. 21 annual maintenance dredging was not addressed. In support of its objections,
Greenwich offered the expert testimony of Captain Kichner and Dr. Craig Jones.
i. Captain Kichner
Captain Kichner is a retired Coast Guard Captain with over 50 years’
experience in vessel safety and navigation.89 Since his retirement, he has been a
consultant on risk management for marine projects around the world. 90 Captain
Kichner’s report was submitted at the DNREC level. He offered testimony for the
first time at the Board level.
Captain Kichner opined that none of the MITAGS Study, the Pilots’ Letter, or
the USCG Email adequately addressed safety and navigational issues in the main
Channel because, among other things: (i) the simulations used a two-vessel model,
which did not account for the various types of vessels that regularly use the Channel;
(ii) the study did not account for the expected increased traffic of 244 additional
vessels in the Channel; (iii) the simulations did not assess the impact of the turning
basin, which occupies the entirety of the usable Channel in this area; (iv) the
simulations were conducted only under “clear visibility” conditions; (v) none
addressed how the Pilots’ recommendation that vessels proceed into the port only at
high tide would impact vessel traffic; and (vi) none addressed safety concerns.91
89 Kichner Affidavit, PORTAPPX-000386-407. 90 Kichner Affidavit, PORTAPPX-000387. 91 Kichner Affidavit, PORTAPPX-000386-407. 22 ii. Dr. Craig Jones
Dr. Craig Jones provided expert testimony on the impact of construction and
maintenance dredging.92 Dr. Jones has been “engaged as a technical expert on
sediment, dredging, and environmental matters on most of the large estuaries in the
northeastern United States including the Delaware River.”93 Dr. Jones opined that
Diamond State significantly underestimated the amount of annual dredging that will
be needed.94 He further opined that even at the level anticipated by Diamond State,
the volume and frequency of the annual dredging was significant, and without the
shoaling fans, the “anticipated amount of maintenance dredging is both unmitigated
and massive.”95
Dr. Jones also opined on the navigational hazards created by the dredging
activities.96
2. Curran Appeal
Curran asserted that DNREC regulations require it to consider the impact of
the Project on recreational use and fishing on the Channel, which would be
negatively impacted by the new port and the dredging, and DNREC failed to
consider or require appropriate mitigation of any attendant harms.97 Like
92 Jones Affidavit, PORTAPPX-000777-91. 93 CURRANAPPX-0694. 94 CURRANAPPX-0697. 95 CURRANAPPX-0699-0700. 96 CURRANAPPX-0707. 97 CURRANAPPX-0972-1013. 23 Greenwich, Curran argued that the Permit application was incomplete. In support
of his appeal, Curran filed three affidavits, in addition to his own.
i. Dr. Theodore Tomasi
Dr. Theodore Tomasi provided expert testimony on the Project’s impact on
recreational use and fishing. Dr. Tomasi is the Managing Principal of Natural
Resource and Environmental services at Integral Consulting.98 He taught,
researched, and published in the area of natural resource and environmental
economics for 40 years.99
Dr. Tomasi noted that while the Officer’s Report and the TRM discussed in-
water work limitations from March 15 to June 30 to protect the fish, there was
nothing in the documents that assessed the impact on fishing or recreational use.100
He also noted that nothing in the Officer’s Report or the TRM provided an analytical
method or approach to determine the Project’s impact on fishing and recreational
use, despite “well-recognized scientific analytic frameworks” for doing so.101
Because DNREC “failed to employ any methodology,” Dr. Tomasi provided an
example of what DNREC could have done to properly analyze the impact on
98 CURRANAPPX-0790-818. 99 CURRANAPPX-0792. 100 CURRANAPPX-0800-01. 101 CURRANAPPX-0801. 24 recreational use of the Channel. Dr. Tomasi’s evaluation estimated that 60,000
fishing and 15,000 non-fishing trips would be impacted annually.102
Dr. Tomasi also opined that the Mitigation Plan failed to address the impact
on recreational use, and DNREC failed to require provide adequate mitigation.103
ii. Damian Preziosi
Damian Preziosi provided expert testimony on the Project’s impact on aquatic
life and habitats in the Project area. He is “an environmental consultant specializing
in ecological risk assessment.”104 Mr. Preziosi’s “area of expertise includes risk
assessment of rare, threatened and endangered species using population, community
and ecosystem models, including use of population viability analysis.”105 He opined
that Diamond State’s Permit application failed to account for the Project’s impact on
Atlantic sturgeon habitat in the area.106
He further opined that Diamond State’s Mitigation Plan was inadequate to
compensate for the injury to sediments and benthic communities, as it failed to
account for “the need for mitigation of the 87 acres of benthic habitat that will be
destroyed by dredging.”107
102 CURRANAPPX-0805. 103 CURRANAPPX-0816-17. 104 CURRANAPPX-0915. 105 Id. 106 CURRANAPPX-0919-24. 107 CURRANAPPX-0930. 25 iii. Dr. Craig Jones
Curran also relied on Dr. Craig Jones’ testimony. In his separate affidavit in
support of Curran’s objection, Dr. Jones also opined on the environmental,
ecological, and recreational impacts of dredging.108
3. Diamond State’s evidence
Diamond State submitted four affidavits to the Board: Brian Devine, David
Small, Laura Mensch, and John Cargill.
i. Brian Devine
Mr. Devine is a geotechnical engineer with experience in environmental
permitting associated with dredging and subaqueous construction.109 Mr. Devine
provided a timeline of the Project and discussed (i) the history of the Project and the
alternatives considered for the site, (ii) the United State Army Corps of Engineers
(“USACE”)’s review of the Project for implications on existing federal projects, (iii)
his views of the MITAGS Study,110 (iv) the notice and comments periods, (v) the
new port’s impact on Delaware’s economy, (vi) his views of the Mitigation Plan, and
(vii) his assessment of the proposed dredging, including the removal of the shoaling
108 Jones Affidavit, CURRANAPPX-693-708. 109 DSPC_PORTOPAPPX-001-35. 110 Mr. Devine noted that the MITAGS Study was validated by the USACE’s approval. DSPC_PORTOPAPPX-0015. 26 fans. Mr. Devine provided his views on various topics, but it does not appear that
he offered expert opinions.
ii. David Small
Mr. Small specializes in project management and support for environmental
permitting and compliance with state and federal environmental regulations.111 He
provide testimony on DNREC’s customs and practices for issuing subaqueous land
permits.
iii. Laura Mensch
Ms. Mensch provided a history of her involvement in the permitting process
and coordination with state and federal agencies. Ms. Mensch also provided a
timeline of the removal of the shoaling fans from Diamond State’s Permit application
and her assessment of responsibility for navigational issues in the Channel.112
iv. John Cargill
Mr. Cargill is a DNREC employee. He provided a timeline of events relating
to the Permit process and evaluation of environmental impact and mitigation.113
111 DSPC_PORTOPAPPX-0075-89. 112 DSPC_PORTOPAPPX-093-103. 113 DSPC_PORTOPAPPX-0104-12. 27 C. Oral Argument
The Board heard oral argument on February 13, 2024.114 Among other things,
Greenwich argued that the Secretary’s Order did not address emergency concerns,
the turning basin’s impact on travel in the main Channel, or the impact of the
dredging. Greenwich noted that while the MITAGS Study stated that emergency
procedures would be developed, Diamond State never provided them.115 Greenwich
highlighted that the author of the Pilots’ Letter116 participated in the MITAGS Study,
and the letter did nothing more than endorse the study.117 Greenwich further noted
that Ms. Mensch posed specific questions to the USCG, including concerns over
emergency scenarios, but the one-line response answered none of them.118
Greenwich argued that neither the Secretary’s Order nor the Officer’s Report
addressed these issues.119
Curran argued that construction of the new port and necessary future
maintenance dredging will negatively impact recreational fishing, yet the Secretary’s
Order failed to even mention recreational fishing.120 In fact, DNREC did not even
114 See Board Tr., CURRANAPPX-0023-242. 115 Board Tr., pp. 23-24. 116 Greenwich also pointed out that it is unknown what information was provided to the Pilots before the undated letter was written. Board Tr., pp. 37-38. See also PORTAPPX000422; PORTAPPX000776. 117 Board Tr., pp. 24-25. 118 Id., pp. 24-26. 119 Id., pp. 30-32. 120 Id., p. 87. 28 attempt to understand the extent of fishing in the area of the Project, Curran asserted.
Further, the evidence submitted by DNREC and Diamond State also failed to address
recreational fishing.
Both DNREC and Diamond State argued that the testimony of Curran’s
experts, and Greenwich’s affidavits, should be disregarded because under Board
Rule 5.3, only the permit applicant or an alleged violator may submit evidence at the
Board level.121
DNREC argued that it is required to “consider” various factors, but it is not
required to “do some specific things.”122 It also argued that the appellants were
attempting to replace their judgment for DNREC’s, which is not permitted. Finally,
DNREC argued that it indeed “carefully consider[ed]” the issues, as required.123
Diamond State attacked the credibility of Greenwich and Curran, asserting
that their objections were solely motivated by achieving a competitive advantage.124
Greenwich, owned by the Holt family, is a competitor of the Wilmington Port, and
Curran was a longtime employee of the Holt family.125
Diamond State addressed the turning basin and the MITAGS Study, arguing
that the purpose of the study was not navigation in the Channel, but to determine
121 Id., pp. 103- 114-15, 139. Captain Kichner’s and Dr. Jones’ reports were submitted at the DNREC level. 122 Board Tr., p. 119. 123 Id. 124 Id., p. 143. 125 Id. It continued to press these attacks here. 29 whether ships could safely berth in the terminal.126 Diamond State also argued that
DNREC’s mandate is to consider the public impact with respect to commerce,
navigation, recreation, and natural resources, among others,127 but these are limited
by the Delaware subaqueous lands and does not mean navigation generally, which
falls under the expertise of agencies like the Pilots and USACE.128 Finally, Diamond
State argued that the Secretary considered all the factors as required under the
regulations.
D. The Board’s Decision
On May 10, 2024, the Board issued a Decision and Final Order (the
“Decision”).129 The Decision summarized the procedural history, the parties’
position, the Secretary’s Order’s conclusions, and identified the evidence in the
record.130 The Board considered the record before the Secretary, the parties’ briefs,
affidavits and exhibits, and argument of counsel.131
The Decision stated that “[a]ssuming DNREC followed its own regulations,
the Board [would] give the processes used and conclusions reached by the Secretary
126 Id., pp. 160-67. 127 Id., p. 155. 128 Id., p. 157. Diamond State, however, agreed that Delaware’s subaqueous lands include certain areas from the Delaware shoreline almost to New Jersey’s shoreline, which would seem to cover the main navigational Channel as well. Id., pp. 174-75. 129 PORTAPPX-00001-22. 130 PORTAPPX-00005. The Board incorporated the Officer’s Report and the TRM. Decision, n.7. 131 PORTAPPX-000010. 30 deference and [would] not consider other possible interpretations of the matters
before the Secretary.”132
The Decision stated that the appellants bear the “burden of proving that the
Secretary’s Order [was] not supported by the evidence on the record before the
Board.”133 The Board ruled that “DNREC’s determination [was] not unreasonable
nor [was] it clearly wrong.”134
The Board found as a matter of fact, that “the Secretary thoroughly vetted the
Project pursuant to the governing law as demonstrated by the record before the
Secretary and the record as supplemented before the Board.”135 The Board found
that Regulation 7504-4.0 “provides DNREC with a series of non-exclusive
operational checklists” and how the Secretary fulfill[ed] “those checklist
requirements will necessarily depend on the nature of the application.”136 It was the
Board’s finding that DNREC satisfied each requirement as set forth in Regulation
7504-4.0.137 The Decision then addressed the regulations:
132 PORTAPPX-000010 (citing Ramsey v. DNREC, 1997 WL 358312, at *4 (Del. Super. March 20, 1997) aff’d 700 A.2d 736 (Del. 1997)). 133 PORTAPPX-000011. 134 PORTAPPX-000012 (citing Div. of Soc. Servs. of Dep’t of Health & Soc. Servs. v. Burns, 438 A.2d 1227, 1229 (Del. 1981)). 135 PORTAPPX-000011. 136 PORTAPPX-000013. 137 Id. 31 1. Regulation 4.6
The Board found that the Secretary considered the public interest, as required
by Sections 4.6.3 (navigation, recreation, aesthetic enjoyment and natural resources),
4.6.4 (disruption of public land use), and 4.6.6 (minimize the project’s adverse
impact). To support this conclusion, the Decision quoted the applicable headings
from the TRM’s Recommendations and Conclusions.138 The Board stated that the
Secretary clearly considered “navigational factors,” as required by 4.6.3, by
conferring with the Pilots and the USCG, and appellants suggestion that DNREC
should “re-do or override” their work was “unwarranted.” The Board also found
that Sections 4.6.4 and 4.6.6 were satisfied because the Project included the three-
phase Mitigation Plan.139
2. Regulation 4.7
The Board found that the Secretary considered “any effect on shellfishing,
finfishing, [and] other recreational activities” as required by Section 4.7.1.2.140
Referencing back to the section of the Decision addressing regulation 4.6 and the
quoted TRM’s headings, the Board determined that DNREC and Diamond State
considered each issue, which were “extensively analyzed and thoroughly vetted by
138 PORTAPPX-000014-16. 139 PORTAPPX-000016. 140 PORTAPPX-000016-17. 32 experts.”141 The Board stated that although Greenwich and Curran “may believe a
different result [was] warranted based on studies conducted by their own experts,
this Board declines to replace the Secretary’s Order, which [was] well-supported by
the evidentiary record, with its own judgment or judgment of [appellants’] expert
witnesses.”142
3. Regulation 4.11
Section 4.11.1.2 requires the proposed project to “be designed” to “[m]aintain
the navigability of channels.” Appellants argued that DNREC did not comply with
this regulation as it relates to dredging activities.143 The Board recognized the need
for “future maintenance dredging” but found that the Permit only related to
construction of the Project, not future maintenance, therefore, “the Secretary would
be premature to opine regarding dredging.”144 The Board also noted that in any
event, “the evidentiary record demonstrate[d] that concerns for navigability of the
channel for through-traffic was a serious consideration for DNREC, which
coordinated its consideration of the matter with the other relevant agencies.”145
141 PORTAPPX-000017. 142 PORTAPPX-000018. 143 PORTAPPX-000019. 144 PORTAPPX-000020. 145 Id. 33 4. Regulation 3.1
Section 3.1.3 requires that a permit applicant keep its application current and
notify DNREC of any changes. The appellants argued that after Diamond State
removed the shoaling fans, it was required to update its application to address the
need for maintenance dredging and because it did not do so, the application was
incomplete. In the summary judgment phase of the appeal, the Board ruled that
“Diamond State’s removal of the shoaling fans from the Project was not substantial
enough to require the permit process to restart” and it was not DNREC’s practice “to
require resubmission of applications when the changes reduce[d] the environmental
impact of the Project as a whole.”146 In the Decision, the Board noted that the parties
did not argue this point at oral argument, and its “view of this issue remain[ed]
unchanged.”147
The Board concluded that Greenwich and Curran failed to carry their burden
to demonstrate that the Secretary’s Order was not supported by the record and
therefore, the Board voted to affirm DNREC’s decision to issue the Permit.
146 PORTAPPX-000020. 147 PORTAPPX-000021. 34 IV. APPEALS TO THE SUPERIOR COURT
A. Greenwich
Greenwich argues that the Board: (1) committed legal error by applying the
wrong standard of review, failing to make findings of fact, and simply rubber-
stamping DNREC’s decision; and (2) the Decision is not supported by substantial
evidence in finding that: (i) the applicable regulations relating to navigation and
dredging were satisfied, and (ii) the Permit application was complete.148
In response, Diamond State asserts: (1) the Board applied the correct legal
standard, and it is not required to make factual findings; (2) the Decision is supported
by substantial evidence; and (3) its application was complete and current.149
DNREC’s arguments largely track those made by Diamond State. However,
DNREC, recognizing that the Board is required to make factual findings, asserts that
the Board did make such findings.150
B. Curran
Curran argues that: (1) the Board abused its discretion by consolidating his
appeal with the other appellants, depriving him of the opportunity to fully present
his case; and (2) the Decision is not supported by substantial evidence in finding
148 Greenwich Opening Brief (“Greenwich OB”) (D.I. 16), p. 23. 149 Diamond State Answering Brief (“Diamond State or DS AB”) to Greenwich generally, (D.I. 26). 150 DNREC Answering Brief (“DNREC AB”) to Greenwich generally, (D.I. 27). 35 that: (i) DNREC adequately considered the Project’s impact to recreation and
fishing; (ii) Diamond State provided adequate mitigation; and (iii) the Permit
application was complete.151
Diamond State argues that: (1) the Board did not commit legal error by
consolidating the appeals; and (2) the Board’s finding that the Secretary adequately
considered: (i) recreation and fishing; and (ii) mitigation are supported by substantial
evidence; and (3) Diamond State’s Permit application was updated and accurate
throughout the application process.152
DNREC argues that: (1) the Board properly exercised its discretion when it
consolidated the appeals, and Curran waived any procedural objections when he
stipulated to the procedures; (2) the Board’s finding that DNREC adequately
considered the impact to recreation and fishing and mitigation is supported by
substantial evidence; and (3) the Board properly found that Diamond State was not
required to update its Permit application.153
V. STANDARD OF REVIEW
The Court is to determine “whether the [agency’s] decision is supported by
substantial evidence and is free from legal error.”154 Substantial evidence is “such
151 Curran Opening Brief (“Curran OB”) generally, (D.I. 16). 152 Diamond State AB to Curran, (D.I. 18). 153 DNREC AB to Curran, (D.I. 22). 154 Delaware Solid Waste Auth. v. Delaware Dep’t of Nat. Res. & Env’t Control, 250 A.2d 94, 105 (Del. 2021); Booth v. Garvin, 2019 WL 462486, at *2 (Del. Super. Feb. 6, 2019). The Court 36 relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”155 “It is more than a mere scintilla but less than a preponderance of the
evidence.”156 Legal determinations are reviewed de novo.157 The Court will not
reverse a discretionary decision unless it was an abuse of discretion, or arbitrary or
capricious.158
The Court is required “to search the entire record to determine whether, on the
basis of all the testimony and exhibits before the agency, it could fairly and
reasonably reach the conclusion that it did.”159 Ultimately, “[t]he Court may affirm,
reverse, or modify the Board’s decision.”160 The Court must affirm if the agency’s
decision is free from legal error and supported by substantial evidence even if the
Court “would have reached a contrary conclusion from the same evidence.”161
Reversal “is warranted if [the agency] abused its discretion, committed an error of
law, or made findings of fact unsupported by substantial evidence.”162
“accepts the Board’s findings of fact if there is substantial evidence to support them.” Falconi v. Coombs & Coombs, Inc., 902 A.2d 1094, 1098 (Del. 2006). 155 Protecting Our Indian River v. Delaware Dep’t Nat. Res. & Env't Control, 2015 WL 54616204, at *6 (Del. Super. Aug. 14, 2015). 156 Delaware Solid Waste Auth., 250 A.2d at 105 (cleaned up). 157 Fasano v. Delaware Dep’t of Nat. Res. & Env’t Control, 2024 WL 469638, at *2 (Del. Super. Feb. 2, 2024). 158 Kreshtool v. Delmarva Power & Light Co., 310 A.2d 649, 652 (Del. Super. 1973). 159 Fasano, 2024 WL 469638, at *2 (quoting Nat’l Cash Register v. Riner, 424 A.2d 669, 674-75 (Del. Super. 1980)). 160 7 Del. C. § 6009(b)). 161 Kreshtool, 310 A.2d at 652. 162 Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242, 1244 (Del. 1985). 37 “Although [this Court’s] standard of review of a decision by [an
administrative agency] is deferential, it is not altogether without teeth.”163 The Court
does not weigh evidence, determine credibility, or make findings of fact,164 but “it
cannot defer to a decision . . . that fails to reflect a rational consideration of the
evidence.”165
VI. DISCUSSION
A. Did the Board Abuse its Discretion by Consolidating the Appeals?
Curran contends that his procedural due process rights166 were violated when
the Board consolidated his appeal with Greenwich’s and the Philadelphia Port
Authority’s. Though he recognizes that “courts often take a favorable view of
consolidation,”167 he argues that it was improper here because only his appeal dealt
with the Project’s impact on recreation and fishing.
Each of the three appellants’ presentations were limited to 45 minutes, so
Curran was deprived of the opportunity to present his testimony live, and that of his
three witnesses, as there was insufficient time. He therefore agreed to submit the
163 Delaware Div. of Pub. Advoc. v. Delaware Pub. Serv. Comm’n, 2023 WL 2641492, at *6 (Del. Super. Mar. 24, 2023) (quoting Neece v. Unemployment Ins. Appeal. Bd., 2022 WL 130870, at *4 (Del. Super. Jan. 14, 2022)) (citing Murphy & Landon P.A. v. Pernic, 121 A.3d 1215, 1217 (Del. 2015)). 164 Protecting Our Indian River, 2015 WL 54616204, at *6. 165 Div. of Pub. Advoc., 2023 WL 2641492, at *6. 166 Curran OB, p. 12, citing Delaware’s Bill of Rights, Article I, Section 9. Curran also relies on Board rules providing for an opportunity to be heard and submit evidence. 167 Curran OB, p. 13 (citing Olsen v. Motiva Enterprises, L.L.C., 2003 WL 21733137, at *4 (Del. Super. 2003)). 38 testimony by affidavits. Had the appeals not been consolidated, he argues, he would
have been able to present live testimony. Curran argues that the prejudice to him is
“evident” as the Decision shows a lack “of awareness of the content of the expert
witness testimony.”168
As Curran notes, consolidation requires a two-step analysis:
First, the [agency] will consider whether the cases present common questions of law, fact or both—i.e, “whether the two cases have central issues in common.” Second, “the [agency] must examine savings in time, effort and cost, in contrast to additional inconvenience, delay and expense if the motion is granted.”169
Whether to order consolidation is left to the sound discretion of the tribunal.170
Consolidation should be denied “if it would result in undue prejudice….”171
The Board did not abuse its discretion in consolidating the appeals. Whether
DNREC complied with applicable regulations in issuing the Permit was central to
all the appeals. While Curran’s appeal was the only to focus on recreation and
fishing, he raised the same mitigation and dredging issues as Greenwich. Indeed,
they both relied on Dr. Jones’ testimony.
Hearing the appeals together allowed the Board to avoid repetitious
presentations of the facts, which was cost effective for all involved.
168 Curran OB. 169 Henry v. Aaron’s Logistics, 2020 WL 7252979, at *1 (Del. Super. Dec. 10, 2020). 170 Id. 171 Id. 39 Curran assumes that he was prejudiced by the consolidation because the
Decision does not discuss recreational use or fishing. While the Court finds below
that the Board is required to provide an analysis and explain its reasoning, the Court
will not assume that the Board ignored Curran’s evidence simply because it was
submitted by affidavit. Accordingly, the Board’s consolidation ruling is
AFFIRMED.
B. Did the Board Apply the Wrong Standard of Review?
1. Appeals to the Board
Any person “whose interest is substantially affected by any action of the
Secretary may appeal to” the Board.172 The record before the Board “shall include
the entire record before the Secretary” but “it is a denial of an appellant’s due process
rights for the Board to limit the evidence before it to that evidence considered by the
Secretary.”173 Thus, “[a]ll parties to the appeal . . . may produce any competent
evidence in their behalf.”174 Still, there are limits on the evidence submitted to the
Board. The Board has discretion to exclude “any evidence which is plainly
irrelevant, immaterial, insubstantial, cumulative or unduly repetitive, and may limit
172 7 Del. C. § 6008(a). 173 Tulou v. Raytheon Serv. Co., 659 A.2d 796, 803 (Del. Super. 1995) rev’d on other grounds, Delaware Solid Waste Auth., 250 A.3d at 116. 174 7 Del. C. § 6008(b). 40 unduly repetitive proof, rebuttal and cross-examination.”175 “The rules of evidence
are relaxed ‘because the Board is the finder of fact, not a jury.’”176
The appellant has the burden to “show that the Secretary’s decision is not
supported by the evidence on the record before the Board.”177 The Board “‘must
defer to the Secretary’s decision unless the record before the Board—which can
include evidence not before the Secretary—does not support that decision.’”178
2. The Standard Applied in the Decision
Greenwich contends that the Board applied an incorrect standard of review,
arguing that the Board gave the Secretary such a level of deference that the Board
essentially applied a “check[ed] the box” review.179 In support, Greenwich points to
language in the Decision, such as: (i) that DNREC’s decision will be given
“substantial weight” and concluding that “DNREC’s determination is not
unreasonable nor is it clearly wrong[;]”180 (ii) referencing that DNREC had to fulfill
“checklist requirements” and showing that the Secretary completed the checklist by
quoting section headings from the TRM, with no further explanation; and (iii) that
the Board “will give the processes used and conclusions reached by the Secretary
175 7 Del. C. § 6008(b). 176 Delmarsh, LLC v. Env’t Appeals Bd., 277 A.3d 281, 289-90 (Del. 2022) (citation omitted). 177 7 Del. C. § 6008(b). 178 Delmarsh, 277 A.3d at 292 (quoting Delaware Solid Waste Auth. at 115). 179 Greenwich OB, pp. 15-17, 29. 180 Decision, p. 12, PORTAPPX-000012. The Board cited Division of Social Services v. Burns, 438 A.2d 1227, 1229 (Del. 1981) for this proposition, which applies to the Board’s interpretation of its own rules, not review of the Secretary’s Order. 41 deference and will not consider other possible interpretations of the matters before
the Secretary.”181 Greenwich argues, rather than just checking to see if the specified
factors appeared in the Secretary’s Order, the Board was required to “carefully
evaluate[]” the evidence, but it did not do so.182
Diamond State responds that Greenwich attempts to improperly place a
higher standard on the Board, as there is no support in the statute or regulations that
the Board “critically evaluate” the evidence.183 It is the Secretary’s obligation to
“consider” the required factors, and the Board’s only obligation is to determine
whether the appellant met its burden to prove that the Secretary’s decision is not
supported by substantial evidence.184 Here, Diamond State argues, Greenwich did
not.
DNREC argues that the Board’s review is limited to the record before the
Secretary185 and that the Board is only to determine whether the appellants met their
181 Decision, p. 10 (citing Ramsey v. DNREC, 1997 WL 358312, at *4 (Del. Super. Mar. 20, 1997) aff’d 700 A.2d 736 (Del. 1997)), PORTAPPX-000010. 182 Greenwich OB, pp. 29-30. 183 DS AB, pp. 19-22. 184 Id. 185 DNREC also argues that Greenwich and Curran are precluded from offering evidence at the Board level by Board rule 5.3. Under Rule 5.3, “[a]ppellants other than permit applicants . . . may only introduce evidence which was before the Secretary.” Section 6008(b) permits the Board to exclude evidence that “is plainly irrelevant, immaterial, insubstantial, cumulative or unduly repetitive.” But it also provides that “all parties . . . may produce any competent evidence in their behalf.” (emphasis added). DNREC cannot square the statute with the Board rule that precludes a non-applicant appellee from submitting any evidence that was not in the Secretary’s record. Board Tr., pp. 23-26. The Court need not resolve this issue because the Board permitted Greenwich and Curran to submit additional evidence. 42 burden of proof. DNREC asserts that the Board applied the correct standard, finding
that Greenwich and Curran did not meet their burden of proof.
It appears that it is not unusual for the Board to identify in its written decision,
standards of review that may not apply to the particular issue it is addressing.186 For
example, the Board’s decision in Delmarsh v. DNREC included the same standard
of review language as the Decision.187 Delmarsh’s appeal arose under § 6008(b)
from DNREC’s denial of Delmarsh’s application to amend the Wetlands Map to
remove certain of its lots as “wetlands.”188 The Board noted that Delmarsh had the
burden to prove that the “Secretary’s decision is not supported by the evidence in the
record before the Board.”189 The Board’s decision included a statement of the
evidence and summarized each witness’ testimony on direct and cross-examination.
Affirming DNREC’s decision, the Board found that “DNREC’s determination [was]
not unreasonable or clearly wrong” and that Delmarsh failed to carry its burden of
proof.190
On appeal to the Superior Court, Delmarsh argued that the Board applied an
incorrect standard of review. The court disagreed, stating “[i]t is not uncommon for
186 See Delmarsh, LLC v. Env’t Appeals Bd., C.A. No. S20A-11-002, Opinion and Order, pp. 7-13 (Del. Super. July 8, 2021), D.I. 19, (“It is not uncommon for an appellate body to list the different levels of review which may or may not be applicable to that particular case.”). 187 Compare Decision, p. 11 with Delmarsh decision, p. 10, Delmarsh, LLC v. Env’t Appeals Bd., C.A. No. S20A-11-002, D.I. 1. 188 Delmarsh, 277 A.3d at 285. 189 Delmarsh decision, p. 10, Delmarsh, LLC v. Env’t Appeals Bd., C.A. No. S20A-11-002, D.I. 1. 190 Id. 43 an appellate body to list the different levels of review which may or may be
applicable to that particular case.”191 The court noted that after the Board’s decision
recited the “not unreasonable or clearly wrong” standard, it recited the “correct”
standard—that the appellant bears the burden to prove that the Secretary’s decision
is not supported by the evidence. The Board then “enumerate[d] its factual finding
in support of its decision.”192 The Supreme Court affirmed this ruling.193
As Delmarsh teaches, citing an inapplicable standard does not mean the Board
applied the wrong standard. What is important is the standard the Board actually
applied to the dispute.194
Here, the difficulty in determining whether the Board applied the correct
standard is that it did not make factual findings with respect to the evidence
presented or explain its reason why the appellants did not meet their burden of proof.
As explained in the next section, the Board must make such findings and explain its
reasoning.
191 Delmarsh, LLC v. Env’t Appeals Bd., C.A. No. S20A-11-002, Opinion and Order, p. 12 (Del. Super. July 8, 2021). 192 Delmarsh decision, p. 12, Delmarsh, LLC v. Env’t Appeals Bd., C.A. No. S20A-11-002, D.I. 1. 193 Delmarsh, 277 A.3d at 292-93 (although the Board included an inapplicable standard, it “applied the correct standard on appeal”). 194 Id. (after the Board cited an inapplicable standard, it followed with the correct standard and “then enumerate[d] its factual finding in support of its decision.”). 44 C. Is the Board Required to Make Factual Finding and Explain its Reasoning?
1. Greenwich’s Arguments
Greenwich argues that the Board failed to evaluate the evidence and make
factual findings. The Board’s one “factual finding” was that the Secretary
“thoroughly vetted the Project,” which Greenwich argues is not a finding of fact but
a conclusory statement. Greenwich asserts that because the Board failed to weigh
the evidence and explain its reasoning, the Decision must be reversed and remanded
for the Board to do so.
Greenwich further contends that the Board committed error because the
Secretary’s Order is not supported by substantial evidence in several respects. First,
Section 4.11.1.2 requires that the Project “shall be designed” to meet the “objective
of [m]aintain[ing] the navigability of channels.”195 Captain Kichner and Dr. Jones
submitted testimony on the impact and dangers of dredging in the main Channel and
that the Permit application significantly underestimated the amount of maintenance
dredging needed. Yet, the Decision simply stated that considering maintenance
dredging was premature, even though the Permit application required it to be
addressed.196
195 7 Del. Admin. C. § 7504-4.11.1.2. 196 Greenwich also argues that the Board committed legal error by not requiring Diamond State to update its application after removal of the shoaling fans. Curran makes the same argument. 45 Second, Section 4.6.3 requires DNREC to consider the Project’s impact on
navigation, but the Board did not evaluate the evidence. Greenwich argues that the
USCG’s rushed, one-line email cannot support the issuance of the Permit, and the
email did not even address the safety concern raised by Ms. Mensch. The Pilots’
Letter adds nothing to the evidentiary record as it simply restates the conclusion of
the MITAGS Study, in which the Pilots’ Association participated, and neither
DNREC nor the Board considered this potential bias.
Third, the Board failed to acknowledge that the MITAGS Study was
preliminary and conducted under a narrow set of circumstances. Captain Kichner
provided testimony that the study’s critical flaw was that it did not account for the
turning basin encompassing the entirety of the main Channel and the impact it would
have on other ships in the Channel.
Finally, even though Section 4.7.5.1 requires DNREC to consider interference
with waterways and surrounding private interests, and Greenwich argued that
DNREC failed to consider this regulation, the Board did not mention this section in
its Decision.
2. Diamond State’s and DNREC’s Responses to Greenwich
Diamond State argues that because of the Board’s standard of review, it does
not need to weigh the evidence presented at the Board level or make factual
46 findings.197 Diamond State asserts that this Court must affirm the Board’s decision
as long as the Court finds evidence anywhere in the record supporting the Board’s
conclusions. With respect to the USCG Email, the Pilots’ Letter, and the MITAGS
Study, Diamond State says that this information was not required in order to issue
the Permit because responsibility for the main Channel lies with federal agencies.198
Nonetheless, DNREC obtained their opinions, and none raised a concern over the
Project impacting the main navigational Channel. Diamond State urges that the
importance of who these agencies are (experts in their fields) is as important as what
they said.199 Thus, with the extensive record, the Board’s decision is supported by
substantial evidence.
Lastly, because this is a construction permit, Diamond State need not address
maintenance dredging, which would be subject to a later permit application.
197 Hearing Transcript (“Hearing Tr.”), January 14, 2025, pp. 55-58. 198 Id., pp. 41-49. 199 Id., pp. 64-66. It appears that the Board was of the same view. See Decision, pp. 16-17 (Board noting that the environmental factors “were extensively analyzed and thoroughly vetted by experts in the field…” and pointing to the Pilots’ Letter and USCG Email in support. Even experts’ opinions, however, must be carefully analyzed. See Greenwich Terminals LLC v. U.S. Army Corps of Engineers, 2024 WL 4595590 (D. Del. Oct. 28, 2024). In vacating authorization for the federal permit for the Project, the court found that the Corps “did not engage in reasoned decision.” The court concluded: “We agree the impact maintenance dredging will have on navigation could be significant, especially where the maintenance dredging is anticipated to be significant and to involve dredging directly next to and with pipelines across the main channel. The Corps ‘completely failed to consider an important aspect of the problem, or provided an explanation that is contrary to, or implausible in light of, the evidence.’” 2024 WL 4595590, at *26 (quoting NVE, Inc. v. Dep’t of Health & Hum. Servs., 436 F.3d 182, 185 (3d Cir. 2006)). 47 DNREC makes a slightly different argument. It agrees that the Board must
make factual findings but asserts that it did so by stating it relied on the Secretary’s
Order, the TRM, and it considered the affidavits.200
DNREC makes similar arguments with respect to the federal agencies having
jurisdiction over the main Channel.201 DNREC characterizes the USCG Email and
the Pilots’ Letter as “going above and beyond.”202
3. Curran’s Arguments
Curran argues that the Board (and DNREC) failed to consider the Project’s
impact on recreational use and fishing, as required by Sections 4.7.1.2 and 4.7.1.3.
Curran argues that Diamond State speculates that there is no real recreational use of
the Channel in the area of the Project. His expert, however, provided an analysis to
determine the extent of the use. While Curran does not contend that DNREC or the
Board must adopt the methodology used by his expert, he contends that some
methodology must be applied.
Curran also argues that DNREC failed to consider mitigation addressing the
impact of the Project on recreational use and fishing (as required by Sections 4.6.7
and 4.7.4.), and the proposed mitigation was inadequate. He submitted expert
200 Hearing Tr., p. 35. 201 Id., pp. 30-33. 202 Id., p. 30. 48 testimony on the impact of dredging to recreational use, fishing, and fish habitats.
Yet, the Decision fails to even mention recreational use or fishing.
4. Diamond State’s and DNREC’s Responses to Curran
Pointing to its own consultant’s bald statement, Diamond State argues that the
“simple fact is, there is very little to no recreational boating or fishing” in the area
of the Project.203 It then relies on its expert’s opinion that the Project will have no
negative impact on recreational activities at Fox Point State Park.204 It argues that
the Board properly relied on this evidence. It further argues that the Board was not
required to adopt Curran’s experts’ opinions in place of DNREC’s judgment.
Finally, Diamond State argues that while mitigation was not required, it was more
than adequate.
DNREC argues that Curran is attempting to place a burden on it that does not
exist; DNREC is not required to follow any particular process to consider the impact
on recreational use. Pointing to the fact that “fishing” was mentioned several times
during oral argument at the Board level, DNREC argues that there is substantial
evidence in the record that it properly considered recreational use.
203 DS AB, p. 26. 204 Id., p. 28. 49 With respect to mitigation, DNREC asserts that it coordinated with several
other agencies, and the parties’ briefs, affidavits, and exhibits reflect that there was
extensive discussion about removing the shoaling fans and mitigation.205
5. Remand is Required
This Court’s function under 7 Del. C. § 6009 is to determine whether the
Board properly exercised its function under 7 Del. C. § 6008; that is, did the Board
abuse its discretion or commit an error of law, or was the Board’s decision supported
by substantial evidence. Section 6009 mandates that the Court is not to set aside the
“Board’s findings of fact” unless they are not supported by substantial evidence in
the record. For the Court to conduct its review, the Board must do more than rule
that the appellant has not satisfied its burden of proof. The Board must analyze the
evidence before it.206 It must weigh the testimony and make credibility assessments
in determining whether “the Secretary’s decision is . . . supported by the evidence
on the record before the Board.”207 Without making findings “and the reasoning
upon which those findings are based, this Court cannot execute its statutorily
mandated examination.”208
205 DNREC AB, pp. 22-23. 206 The Board has conducted an evaluation of evidence in other appeals. See Delmarsh, LLC v. DNREC at https://documents.dnrec.delaware.gov/Admin/EAB/Decisions/2020/EAB-2020-03- Delmarsh-Decision-and-Final-Order.pdf 207 7 Del. C. § 6008(b). 208 See Delaware Div. of Pub. Advoc., 2023 WL 2641492, at *7. 50 Diamond State’s argument otherwise is unpersuasive. While it is true that the
Board must defer to the Secretary’s decision if it is supported by substantial
evidence, in the mix of that determination is the evidence presented to the Board. If
the Board does not weigh and analyze this evidence (i.e., make findings), the Court
would have to decide whether the additional evidence supports the Secretary’s
decision, necessarily requiring it to weigh and analyze the evidence, which the Court
cannot do. Additionally, if the Board does not explain the basis of its decision in
more than conclusory terms, the Court cannot determine whether the Board properly
found that the Secretary’s decision was supported by “relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
DNREC’s argument that the Board made findings and provided a substantive
explanation of its reasoning is also unpersuasive. The Board’s explanation of its
determination that DNREC considered the regulatory requirements was to simply
restate the headings of the 12 topics in the TRM. There is no explanation of why the
headings supported the Board’s conclusions.209 And while the Board did reference
the TRM, the MITAGS Study, the USCG Email, and the Pilots’ Letter, it accepted
these pieces of evidence and rejected the evidence that countered the conclusions,
without explanation.
209 Even incorporating the TRM into the Decision does not satisfy the Board’s statutory duties. The TRM is itself conclusory on many of these topics. 51 The conclusory nature of the Decision raises many questions. As reflected
above, the parties submitted a significant amount of evidence to the Board, but the
Board does not even mention most of the evidence, let alone analyze it. The
Decision does not address why the one-line USCG Email and the Pilots’ Letter
(which appears to do nothing more than reiterate the MITAGS Study’s conclusion)
was evidence that a reasonable mind might accept as adequate,210 especially when it
appears that none of these documents addressed navigational issues in the main
Channel. The Decision also does not address why the MITAGS Study was sufficient
when it expressly did not address safety concerns, nor were these issues addressed
in the Secretary’s Order or the TRM. While it may be appropriate to rely on the
agencies’ experts, the Board must not automatically defer to them (and summarily
dismiss challenges to the experts’ opinions) without reviewing the record and
satisfying itself that the agencies made a reasoned decision.211
Additionally, while Diamond State may be required to apply for another
permit to actually conduct the maintenance dredging, by all accounts, maintenance
210 DNREC and Diamond State argue to the Court that DNREC has no jurisdiction over the main navigational Channel because its review is limited to Delaware’s subaqueous lands. This is a curious argument because Diamond State admitted that the subaqueous lands almost reach the New Jersey shoreline (Hearing Tr., p. 81). There is nothing in the Decision addressing this jurisdictional limitation. 211 Greenwich, 2024 WL 4595590, at *25 (quoting Friends of Cap. Crescent Trail v. Fed. Transit Admin., 877 F.3d 1051, 1059 (D.C. Cir. 2017) (court “‘should not automatically defer to [agency experts] . . . without carefully reviewing the record and satisfying [itself] that the agency has made a reasoned decision based on its evaluation of the significance—or lack of significance—of the new information.’”). 52 dredging will be required, and it may be significant. A permit application requires
the applicant to state how often maintenance dredging will be required and its plan
to reduce its frequency. Yet, the Board simply agreed with DNREC’s assessment
that consideration of maintenance dredging was premature, with no discussion of the
evidence. Further, the shoaling fans were removed to address DWF’s concern over
the impact on fish, but the impact of removal of the fans on maintenance dredging
and the resulting impact to the public and navigation was not addressed.
Finally, the Decision concludes that DNREC “‘considered’ and accounted for”
the Project’s impact on recreational use and fishing, but it does not discuss fishing
or recreational use of the Channel, nor does the record before DNREC.
Accordingly, the appeals are remanded to the Board to make factual findings
and provide an explanation supporting its findings.
VII. CONCLUSION
The Board’s ruling on consolidation of the appeals is AFFIRMED.
The remainder of the Decision is REVERSED and REMANDED. On
remand, the Board is instructed to provide a written evaluation of the evidence and
reasoning for its rulings.
IT IS SO ORDERED.
/s/Kathleen M. Miller Kathleen M. Miller, Judge
Related
Cite This Page — Counsel Stack
Greenwich Terminals LLC v. Department of Natural Resources & Curran v. Department of Natural Resources, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenwich-terminals-llc-v-department-of-natural-resources-curran-v-delsuperct-2025.