Sussex County Delaware
DNREC Secretary
Disputes N-J Editorial
 
Guest Opinion, August 26, 2002

By NICHOLAS A. DIPASQUALE
Guest Opinion

NOTE: The following letter was submitted to Sussex County Online by outgoing DNREC Secretary Nicholas Dipasquale in response to an editorial in The News-Journal on Aug. 18, 2002.

The New Journal's Sunday (Aug. 18) editorial on the Army Corps of Engineer's main channel deepening project struck me as overly mean-spirited, suggesting that I was granting the Corps request to revise the permit application simply so I could delay the permit review process and pass the buck on to the next Secretary to make the decision.

The News Journal should know by now that this is not characteristic of my tenure as Secretary. I have never shied away from a tough decision. In fact, whether the paper cares to believe it or not, I was attempting to get a definitive response from the Corps that it agreed to the department's terms and conditions for granting the request so that if it did not find these conditions acceptable we could move forward with a decision while I was still secretary.

The request came in well before my decision to resign. The decision to grant the extension was not made in a vacuum. I consulted with the Governor's staff and with the Governor, who felt this was the appropriate course of action.

As Dick Fleming notes, no fewer than three independent reviews have concluded that the Corps erred in its presentation of the economic justification for the project. It now proposes to correct those errors. As a matter of practice, the department has allowed permit applicants the opportunity to correct the record by revising their applications. Last time I checked, we still operate in a democracy, not a dictatorship. The final decision on the permit application for this project should be made based on the merits of the proposal, a complete and accurate record and the best information available, not on our feelings about the Corps as an institution, however objectionable one finds its behavior.

The department required that the Corps' revision to its application be limited to changes that relate only to the economic justification. It will not be allowed to make wholesale changes in the project or major modifications to the application. If it does, the department will terminate its review of the permit application. If the Corps insists on pursuing the project, it will be required to submit a new application and start the process all over again.

The Corps is required to submit changes to the application within 30 days of completing its re-analysis of the project's economic justification. The public will be given ample opportunity to review the modification and to provide comment to the department. The revisions and the public's comments will be given to the department's economic consultant, the same consultant that reviewed the Corps' economic justification initially, for analysis. The consultant's review will be incorporated into the Hearing Officer's report and recommendation to the secretary, which will serve as the basis for the final decision to grant or deny the permit. The Corps and the project sponsor, the Delaware River Port Authority, have agreed to cover the additional costs associated with this review, so there is no cost to the state.

If this project is as fundamentally flawed on both economic and environmental grounds, as Mr. Fleming and the News Journal believe, then they should not be concerned about a delay of a few months in a project that has been in the works for more than a decade. If someone believes the law requires us to act immediately, they are free to seek a writ of mandamus from the courts to compel the department to act on the application in its present form. I suspect there is no basis to obtain such a writ. If someone disagrees with the department's final decision, they have the right to appeal it.

Contrary to the News Journal's claim, I have not waffled on this issue. They should recall that we demanded that the Corps obtain a state permit for this project, despite its claim that it was legally exempt under federal law. My actions have been consistent and are designed to ensure the integrity of the department's decision-making process, to result in an appropriate, lawful and well-reasoned decision and to prevail upon appeal if challenged. Whether we like it or not, sometimes the processes of democracy take time.

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