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Judge Grants Year Injunction to Delay Burlington Island Dredge Spoils Work

Posted on October 27, 2016

By Rose Krebs, Bucks County Courier Times

A Superior Court judge granted an injunction Monday to delay clearing land on Burlington Island to hold dredge spoils while the state and Burlington City continue to argue over who owns the land.

At the Burlington County Courthouse in Mount Holly, Judge John E. Harrington heard arguments from both sides and ruled that the injunction be in place while both sides prepare their cases. Harrington wants the sides to have all materials to the court by next summer, with a hearing date of Sept. 5, 2017.

The injunction would be in place until then unless an agreement is reached or another decision is made, the judge ruled. His written order is to be formalized Tuesday morning. The judge advised both sides that they should discuss and try to solve the matter beforehand.

Deputy Attorney General Nicholas Seminoff argued an injunction should not be granted because the city did not show it would suffer irreparable harm, nor did it have a compelling case that it owns the land where the dredge cell is located.

Harrington disagreed, stating that although the municipality would not necessarily be harmed financially, there is a public interest in the land, and the work could have an environmental or other impact. The judge also said a case was made that the city may be the rightful owner of the land.

Also, even if the state owns the land, Harrington said he believes a procedure or permitting process would need to be followed. The state was unable to provide documents Monday as to how and why it granted access to the U.S. Army Corps of Engineers to start work to clear land on the dredge cell this week. Initially, work was to begin Monday but was delayed while the court considered the matter.

Seminoff referred to a “water quality certification” from the early 1980s granted to the Army Corps, arguing that he did not know if the state could go back on that without being challenged. He also argued that a contract is already in place to do work, so there could be a financial hardship because of the delay.

On Sept. 30, the Army Corps awarded a $214,888 contract to Mohawk Valley Materials, of Marcy, New York, to clear 40 acres of trees and vegetation from a disposal cell, which, once cleared, could hold about 400,000 cubic yards of sand and mud from the river.

In granting the injunction, Harrington found that the state did not provide evidence that the land needs to be cleared immediately. Seminoff said the clearing of vegetation from the dredge cell is all that is included in the first phase of work.

However, the judge said he does recognize the state’s interest in Delaware River dredging and ensuring that the waterway is navigable. If the state could provide information that the need for dredging is immediate or that it will experience some financial burden due to work being delayed, he could reconsider the injunction.

It was also noted that the Army Corps could enter the legal fray. The agency did not have comment Monday afternoon. The state Attorney General’s Office also had no comment.

Burlington City officials were pleased with the decision, albeit wary about the legal fight still to come.

“We are very happy the judge granted a stay,” Mayor Barry Conaway said. “We do know this won’t be the end.”

Conaway said he knows that the need for a navigable river will continue to be an issue and that all involved parties must engage in discussions.

“I’m a realist,” he said. “We are going to need to sit down and have talks.”

J. Brooks DiDonato, of Parker McCay in Mount Laurel, special counsel for the municipality, suggested in court that the Army Corps could consider other sites for dumping dredge spoils.

DiDonato also continued to argue that Burlington City owns the 396-acre island near Bristol, Pennsylvania, and that work can be done there only if the municipality signs off on it. The state maintains that it owns the tidelands where the dredge cell is.

“They need to prove ownership in a court of law,” he told the judge.

Source: Bucks County Courier Times

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