Greenwich Terminals LLC v. Department of Natural Resources & Curran v. Department of Natural Resources

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

53