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Getting DNREC To Respond
Victor Singer

October 9, 2008

In real estate matters, if a seller backs out of a contract, the buyer can bring suit for specific performance. We haven't found an analog when Government refuses to do what the law requires. Dick Fleming's presentation at CLNCC's 9/08 meeting focused on DNREC's refusal to rule on a five-year-old proposal to deepen the Delaware River. And Vic Singer has focused on DNREC's ignoring of Coastal Zone Act (CZA) provisions and a Superior Court ruling on lightering in Delaware Bay.

On Deepening the River: Nearly a decade ago, upstream shipping interests proposed to deepen the river channel to 45 feet. Activity already ongoing when the CZA became law in 1971 would be expanded or extended by the deepening. A CZA permit is required for any expansion or extension. DNREC hasn't said either yea or nay for five years. A new applicant is now trying to re-open the old proposal.

It makes sense to assume that DNREC's activity five years ago was under the CZA. The CZA defines its jurisdictional area, including 24 miles of riverbed, which is Delaware all the way to the New Jersey shore. At 7 Del C. 7005, the CZA says that:

". . The Secretary of the DNREC shall first determine whether the proposed use is, according to this chapter and regulations issued pursuant thereto, (1) a heavy industry use under Section 7003 of this title; (2) a use allowable only by permit under Section 7004 of this title; or (3) a use requiring no action under this chapter. The Secretary of the DNREC shall then, if he or she determines that Section 7004 applies, reply to the request for a Permit within 90 days of receipt of the said request for permit either granting the request, denying same, or granting the request but requiring modifications; the Secretary shall state the reasons for his or her decision." (emphasis added)

If the DNREC Secretary has issued a CZA Status Decision (Step One) declaring the CZA be the controlling law, a ruling on the permit itself is long overdue.

Therefore the first step ought to be a FOIA request to examine the Secretary's ruling on the Status Decision and on the Permit Application (Under FOIA, DNREC can charge for copies. Access is free, and we can photograph the documents either with a camera (fair results) or a scanner (excellent results).

If the response is that the deepening issue was not handled under the CZA so neither ruling exists, an explanation should be demanded as to why not. And if it WAS handled under the CZA, the absence of a ruling needs an explanation.

The US Supreme Court Master's ruling on the NJ quarrel about where the state line is (after the Coastal Zone Industrial Control Board's denial of the BP appeal on their LNG proposal), disposed of that complication. It follows that no allowable alibi for the absence of a 90 day ruling appears in the CZA. An incomplete application produces a permit denial, not a delay.

Once it's established that the permit application is under the CZA, the next step will be finding a path to specific performance.

On Lightering in the Bay: Delaware's Superior Courtruled last November that a permit is required for expansion or extension of lighering at Big Stone Anchorage. The Court also ruled that because the vessel that an Applicant had proposed to build to serve Sonoco obviously wasn't operating in 1971, it could not have a "grandfathered" right. "Expansion" obviously is the increased lightering volume since 1971, and "Extension" applies to equipment replacements since 1971.

Responding to Vic's inquiries about when DNREC will comply with the Court's ruling, DNREC's CZA Staff has only referred the matter to DNREC's counsel.

EPILOG: Complying with relevant law is one of the DNREC Secretary's job requirements. He's compelled to do so only if he wishes to remain on the public payroll. He can continue to ignore the law by removing himself from our payroll. At long last!

 


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