Full 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. N25A-08-003 KMM ) DEPARTMENT OF NATURAL ) RESOURCES AND ENVIRONMENTAL ) CONTROL AND DIAMOND STATE ) PORT CORPORATION, ) ) Appellees. ) ) ) WALTER F. CURRAN, ) ) Appellant, ) ) v. ) C.A. No. N25A-08-001 KMM ) DEPARTMENT OF NATURAL ) RESOURCES AND ENVIRONMENTAL ) CONTROL AND DIAMOND STATE ) PORT CORPORATION, ) ) Appellees. ) Date Submitted: June 1, 2026 Date Decided: September 23, 2026 MEMORANDUM OPINION AND ORDER Upon Diamond State Port Corporation’s Motion for Application of Judicial Notice: Denied Appeal from Environmental Appeals Board: Affirmed Thaddeus J. Weaver, DILWORTH PAXSON LLP, Wilmington, DE, Shoshana (Suzanne Ilene) Schiller (argued), Jill Hyman Kaplan, Danielle N. Bagwell, MANKO GOLD KATCHER FOX LLP, Bala Cynwyd, PA, Attorneys for Appellants Greenwich Terminals LLC, Gloucester Terminals LLC, and GMT Realty, LLC. Patrick M. Brannigan (argued), ECKERT SEAMANS CHERIN & MELLOTT, LLC, Wilmington, DE, Michelle M. Skjoldal, ECKERT SEAMANS CHERIN & MELLOTT, LLC, Harrisburg, PA, David A. Rockman, ECKERT SEAMANS CHERIN & MELLOTT, LLC, Pittsburgh, PA, Attorneys for Appellant Walter F. Curran. Matthew F. Lintner, Devera Breeding Scott (argued), Lucinda C. Cucuzzella, STATE OF DELAWARE DEPARTMENT OF JUSTICE, New Castle, DE, Attorneys for Appellees Department of Natural Resources and Environmental Control. Wali W. Rushdan II, Elise K. Wolpert (argued), BARNES & THORNBURG LLP, Wilmington, DE, Attorneys for Appellee Diamond State Port Corporation. Miller, J. ii I. INTRODUCTION Diamond State Port Corporation (“Diamond State”) applied for a permit from the Department of Natural Resources and Environmental Control (“DNREC”) under the Subaqueous Lands Act (the “Act”) to expand the Port of Wilmington to the site of the former DuPont Edgemoor facility. Walter F. Curran (“Curran”) and Greenwich Terminals LLC, Gloucester Terminals LLC, and GMT Realty, LLC (collectively “Greenwich”) were among the objectors. Curran raised objections based on the project’s impact on recreational fishing in the area and lack of mitigation. Greenwich, which owns and operates ports north of the site, raised objections based on navigational and safety concerns, among others. DNREC approved the permit and Greenwich and Curran appealed to the Environmental Appeals Board (the “Board”), which affirmed DNREC’s decision. Greenwich and Curran appealed to this Court. In its April 14, 2025 Memorandum Opinion and Order (the “Remand Order”), 1 the Court found that the 0F Board summarily rejected the objectors’ evidence without explanation. Because the Board did not make factual findings, provide an analysis of the evidence presented, or explain its reasoning, the Board’s decision was reversed and remanded. 1 2025 WL 1098975 (Del. Super. Apr. 14, 2025). 1 On remand, the Board issued an eighty-page Decision and Order Upon Remand (the “Remand Decision”). 2 Greenwich and Curran again appealed. The 1F objectors argue that the Board committed legal error and its findings and rulings are not supported by substantial evidence. The Court finds that the Board did not commit legal error, credibility determinations and weighing the evidence lies with the Board, and its rulings are supported by substantial evidence. Greenwich and Curran failed to carry their burden of proof and the Remand Decision is Affirmed. II. FACTUAL AND PROCEDURAL BACKGROUND A. The site and the parties DuPont’s former titanium dioxide production facility is on approximately 115 acres located along the Delaware River, just east of Wilmington and near the Port of Wilmington. 3 The site has been plagued by toxic contamination for years. 2F Diamond State is “a public entity within the Delaware Department of State, created to support the public interest and to serve Delaware citizens.” 4 Diamond 3F State is responsible for promoting and maintaining the Port of Wilmington as a competitive and viable commercial operation. 5 4F 2 PORTAPPX000905-89. 3 Secretary’s Order, p. 2, PORTAPPX000029. 4 Environmental Appeals Board Hearing Transcript, February 13, 2024 (“Board Tr.”), p. 140, CURRANAPPX-0162. 5 https://port.delaware.gov/. 2 Curran is a Delaware citizen who resides in Sussex County. He previously worked as a Stevedore/Marine Terminal operator at several ports and assisted in dredging projects. 6 He has worked, boated, and fished on the Delaware River for 5F over 30 years, including a few times in recent years. 7 6F Greenwich owns and operates a marine terminal at the Port of Philadelphia and two port terminals in New Jersey. 8 These terminals receive delivery all types of 7F goods, including perishable products, from ships traveling up the Delaware River, passing the Port of Wilmington. 9 Receiving ships into a port is highly sequenced; 8F 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. 10 Larger ships traverse the river only at high tide, so stoppages can 9F result in delaying deliveries by more than 12 hours. 11 10F B. The Project In 2020, Diamond State announced its development of the Edgemoor site into a new state-of-the-art port to expand the current Port of Wilmington (the “Project”). The new port would vastly expand capacity, clean up the toxic waste, avoid impact on wetlands that other potential sites would have created, create (directly or 6 Curran Aff., CURRANAPPX-0685. 7 Id. 8 Whene Aff., PORTAPPX000339; Inskeep Aff., PORTAPPX000346. 9 Id. 10 Whene Aff., PORTAPPX000340-41. 11 Inskeep Aff., PORTAPPX000348. 3 indirectly) 3,000 jobs, and generate economic benefits to Delaware in the tens of millions. 12 Delaware is vying for the business generated by servicing New Panamax 11F ships. 13 12F The Project requires large-scale dredging in the area of the new port to accommodate the large ships’ depth requirements. In addition to the dredging required for the port’s construction, annual dredging would be required to maintain the needed depth. 1. DNREC’s Permitting Process DNREC does not advocate for permits, but evaluates permit applications by engaging subject-matter experts and considering comments from the public, among other relevant information. 14 A technical response memorandum is prepared for the 13F DNREC Hearing Officer to incorporate into the Report to the Secretary of DNREC. 15 The Secretary makes the final permitting decision, which may be 14F appealed to the Board. 16 15F 12 Remand Decision, pp. 19-20. 13 In 2017, the Panama Canal expanded its capacity to accommodate larger New Panamax ships. These ships can carry more than twice the cargo as ships passing through the canal before the expansion. The main Channel was dredged to increase its depth to 45 feet. Remand Decision, p. 18. See Greenwich Terminals LLC v. U.S. Army Corps of Engineers, 2024 WL 4595590, at *2 (E.D. Pa. Oct. 28, 2024). 14 Remand Decision, pp. 20-21. 15 Id., pp. 21-22. 16 Id., p. 22. 4 2. The Permit Application and Mitigation Plan In June 2020, Diamond State applied for a Subaqueous Lands Permit to construct the new port (the “Permit”). 17 The Permit application proposed installing 16F a 2,600 foot long pile-supported wharf and 3,200 feet of shoreline bulkhead. 18 A 17F turning basin, which would allow ships to navigate in and out of the port, extends into the main navigational path in the channel (the “Channel”), which will impact other ships traversing the Channel. 19 18F 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. 20 In addition to dredging at the site of the new port, the area 19F adjacent to the main Channel into the port (another 87 acres) also would need to be dredged to allow ships to use the turning basin to enter the port. 21 20F The dredging would occur between September 1 and December 31, and the dredged material would be removed through a pipeline discharged to a confined disposal facility. 22 21F The initial dredging is expected to take over a year. 23 22F 17 Diamond State Permit Application, PORTAPPX000091-126. 18 Id., PORTAPPX000117. 19 Remand Decision, p. 38. 20 Diamond State Permit Application, PORTAPPX000120; Secretary’s Order, p. 2, PORTAPPX000029. 21 Environment Assessment Technical Document, p. 2, PORTAPPX000141. 22 Diamond State Permit Application, PORTAPPX000124-25. 23 Id., PORTAPPX000122. 5 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 23F DNREC provided notice of the Permit application on August 23, 2020 and held a virtual public hearing on September 29, 2020. 25 The public comment period 24F was held open until December 1, 2020. 26 25F Curran and Greenwich objected. 27 26F Curran’s objections focused on environmental and navigational issues, future dredging activities, and inadequate mitigation. 28 Greenwich objected to the use of 27F shoaling fans, impact on navigation in the main Channel, the potential impact on aquatic life, and the lack of mitigation. 29 28F 3. The Secretary’s Order After the public hearing and comment period, technical experts in DNREC’s Division of Water prepared a Technical Response Memorandum (“TRM”), dated September 21, 2021. 30 It organized the public comments in opposition to the Permit 29F into 12 categories and provided an analysis of each issue. 31 30F 24 Id., PORTAPPX000121. 25 Hearing Officer’s Report, PORTAPPX00038-90. 26 Remand Decision, p. 22. 27 Id. 28 Id., p. 25. 29 Id., pp. 22-23. 30 Id., p. 25. 31 TRM, PORTAPPX00062-90; CURRANAPPX-0351-64. 6 A Hearing Officer’s Report (the “Officer’s Report”), dated September 29, 2021, was then prepared. 32 31F It 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. 33 The Officer’s Report stated that the DNREC experts who prepared the TRM 32F “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. 34 33F The DNREC Secretary then 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, 35 summarized the TRM, 34F Officer’s Report, and the DNREC Memo on the Mitigation Plan. 36 The Secretary 35F “f[oun]d and conclude[d]” that Diamond State complied with all statutes and regulations and approved the Permit. 37 36F 32 CURRANAPPX-0331. 33 CURRANAPPX-0335, 343, 378-79. 34 Hearing Officer’s Report, p. 21, PORTAPPX000059. 35 Secretary’s Order, pp. 1-5, CURRANAPPX-0380-84. 36 Id., pp. 6-8, CURRANAPPX-0385-87. 37 Id., pp. 9-10, CURRANAPPX-0388-89. 7 III. APPEALS TO THE BOARD Any person “whose interest is substantially affected by any action of the Secretary may appeal to” the Board. 38 The record before the Board “shall include 3 F 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.” 39 Thus, “[a]ll parties to the appeal . . . may produce any competent 38F evidence in their behalf.” 40 Still, there are limits on the evidence submitted to the 39F Board. The Board has discretion to exclude “any evidence which is plainly irrelevant, immaterial, insubstantial, cumulative or unduly repetitive, and may limit unduly repetitive proof, rebuttal and cross-examination.” 41 “The rules of evidence 40F are relaxed ‘because the Board is the finder of fact, not a jury.’” 42 41F The appellant has the burden to “show that the Secretary’s decision is not supported by the evidence on the record before the Board.” 43 The Board “‘must 42F 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.’” 44 43F 38 7 Del. C. § 6008(a). 39 Tulou v. Raytheon Serv. Co., 659 A.2d 796, 803 (Del. Super. 1995) rev’d on other grounds, Delaware Solid Waste Auth. v. Delaware Dep’t of Nat. Res. & Env’t Control, 250 A.2d 94 (Del. 2021). 40 7 Del. C. § 6008(b). 41 Id. 42 Delmarsh, LLC v. Env’t Appeals Bd., 277 A.3d 281, 289-90 (Del. 2022) (citation omitted). 43 7 Del. C. § 6008(b). 44 Delmarsh, 277 A.3d at 292 (quoting Delaware Solid Waste Auth., 250 A.3d at 115). 8 On October 20, 2021, three objectors appealed the Secretary’s Order to the Board. 45 After motion practice, the Board consolidated the appeals. The parties 44F stipulated to submitting testimony by affidavit. After briefing, the parties presented oral argument to the Board. On May 10, 2024, the Board issued a Decision and Final Order (the “Decision”). 465F After appeal to the Superior Court, the Decision was reversed. The Court remanded to the Board with instructions to provide a written evaluation of the evidence and reasoning for its rulings. On July 14, 2025, the Board issued the Remand Decision, making the following findings and conclusions: A. Coordination of permitting relating to the Project DNREC’s permitting authority “is limited to the subaqueous lands involved in [a permit] application.” 47 It is not unusual for a project to require permits from 46F multiple agencies, each being evaluated independently. 48 In considering the Permit, 47F DNREC relied on its own subject-matter experts and coordinated with many other agencies, including the United States Army Corps of Engineers (the “Army Corps”), the United States Coast Guard (the “Coast Guard”), the Delaware River Basin 45 Additional objectors also appealed but their appeals were dismissed for lack of standing or failure to have legal representation. CURRANAPPX-0645-62. 46 PORTAPPX000001-22. 47 Remand Decision, p. 26. 48 Id. 9 Commission, and the Delaware Department of Transportation. 49 In connection with 48F the Permit application, the Army Corps was designated the lead federal agency. 50 49F B. The Objectors The Philadelphia Regional Port Authority, a public agency of the Commonwealth of Pennsylvania (“PhilaPort”) objected and appealed to the Board. The Board found that PhilaPort is a an up-river competitor of the Port of Wilmington and is engaged in its own multi-billion dollar expansion project. 51 PhilaPort is 50F operated by Holt Logistics Company (“Holt”), which also runs Greenwich’s operations. 52 Curran was an executive and operations director at Holt from 1989 to 51F 2011. 53 With these connections, the Board viewed the objectors’ arguments and 52F evidence through a biased lens. 54 53F C. Regulation 4.0 The Board found that Regulation 7504-4.0 “provides DNREC with a series of non-exclusive operational checklists” and “[h]ow DNREC fulfills those checklist requirements depends on the nature of the application.” 55 The Board also found that 54F 49 Id., p. 27. 50 Id. 51 Id., p. 28. 52 Id., pp. 28-29. 53 Id., p. 29. 54 Id. 55 Id., p. 31. 10 DNREC satisfied each requirement as set forth in Regulation 7504-4.0 56 and 55F addressed the regulations: 1. Regulation 4.6 Regulation 4.6 requires DNREC to consider a variety of factors, such as whether the Project could be accomplished in any other way, as provided in Sections 4.6.5 and 4.6.9. The Board determined, based on the testimony from Brian Devine, 57 56F that the proposed expansion of the Port of Wilmington is necessary to achieve the goal of attracting the large Panamax cargo ships. 58 57F Regulation 4.6 also requires that DNREC to “consider the public interest” 59 58F including: “[t]he potential effect on the public with respect to commerce, navigation, recreation, aesthetic enjoyment and natural resources…”, as provided in Section 56 Id. 57 Mr. Devine is a geotechnical engineer with experience in environmental permitting associated with dredging and subaqueous construction. Devine Aff., DSPCAPPX2_00200-73. He provided a timeline for the Project and discussed (i) the history of the Project and the alternatives considered for the site, (ii) the Army Corps’ review of the Project for implications on existing federal projects, (iii) the MITAGS Study, (iv) the notice and comments periods, (v) the new port’s impact on Delaware’s economy, (vi) the Mitigation Plan, and (vii) an assessment of the proposed dredging, including the removal of the shoaling fans. 58 Remand Decision, p. 34. 59 “Public Interest” means: demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would exceed all demonstrable environmental, social, and economic costs of the proposed action. In determining the public interest in a request for the use, sale, lease, or transfer of interest in subaqueous lands, [DNREC] shall consider the ultimate project purpose to be served by said use, sale, permit, lease, or transfer of lands or materials. 7 Del. Admin. Code § 7504-1.0. 11 4.6.3; “[t]he extent to which any disruption of public land use … is temporary or permanent,” as provided in Section 4.6.4; and “[t]he extent to which the applicant’s primary purpose and objectives can be realized by alternatives, i.e., minimize the scope or extent of a[] … project and its adverse impact,” as provided in Section 4.6.6. a. Navigation - Section 4.6.3 The Board found that DNREC’s authority over navigational issues is limited to the subaqueous land affected by the proposed construction. 60 In connection with 59F the Project, the scope of DNREC’s authority therefore is limited to the 5.5 acres of public subaqueous land occupied by the proposed new port. 61 Navigational issues 60F in the main Channel and the turning basin fall within the authority of the Army Corp. 62 61F 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 (the “MITAGS Study”). 63 The study’s62F objective was to “demonstrate that the terminal will have minimal adverse impact on vessels transiting inbound and outbound on the Delaware [River].” 64 The Pilots’ 63F 60 Remand Decision, p. 37. 61 Id., n.85. 62 Id., pp. 37-38 citing Smailer Aff., ¶ 28, Devine Aff., ¶ 10, and Army Corp Engineering Manual 1110-2-1613, Section 9-2.c.2. 63 MITAGS Study, PORTAPPX000412-80; Board Tr., p. 18, CURRANAPPX-0040. 64 MITAGS Study, PORTAPPX000412-80. 12 Association for the Bay & River Delaware (the “Pilots Association”) and the Army Corp also reviewed and commented on the MITAGS Study. 65 64F Because public comments raised concerns over navigation in the main Channel, DNREC conferred with the Pilots Association and the Coast Guard. 66 The 65F Coast Guard advised that it did “not see this project posing a risk to safe navigation” 67 and the Pilots Association stated that “[t]he simulation results 66F indicated the proposed Edgemoor Terminal would have minimal impact on ships as they transit the existing navigation channel.” 68 Thus, the navigational and safety 67F issues raised by the objectors were being addressed by agencies that have authority over navigation in the main Channel. 69 68F DNREC imposed 17 special conditions to minimize the impact on navigation due to dredging and construction on the 5.5 acres under DNREC’s authority, and it subjected the approval of the Permit to approval by the Army Corps. 70 The Board 69F therefore found that DNREC properly considered the Project’s impact on the subaqueous land under its jurisdiction and the waters outside of its jurisdiction. 71 70F 65 Remand Decision, p. 39, PORTAPPX000948. 66 Id. 67 PORTAPPX000764; Remand Decision, pp. 40-41. 68 Pilots Association’s letter, PORTAPPX000776; Remand Decision, pp. 40-41. 69 Remand Decision, p. 42. 70 Id. 71 Id. 13 The Board also addressed the evidence presented by Greenwich. It relied on the testimony of Captain Kichner, a retired Coast Guard Captain with over 50 years’ experience in vessel safety and navigation. 72 Captain Kichner opined that none of 71F the MITAGS Study, the Pilots Association’s letter, or the Coast Guard’s response adequately addressed safety and navigational issues in the main Channel. 73 The 72F Captain’s testimony was “well-received by the Board,” but it did not address the subaqueous land within DNREC’s jurisdiction (the 5.5. acres on which the new port would sit). Greenwich also submitted affidavits from Peter Inskeep and David Whene, managers of Holt’s marine terminals. 74 These witnesses explained the negative 73F impact any delays in traveling up the Channel would have on the products received at the upstream terminals and the trickling effect on various other parties involved in the operations. 75 74F While Messrs. Inskeep and Whene were “undoubtedly experience and knowledgeable regarding shipping,” the Board found that their bias undermined their testimony and therefore, the testimony was “not given [any] weight.” 76 75F 72 Kichner Aff., PORTAPPX000386-407. 73 Id. 74 Remand Decision, pp. 43-44, n.104. 75 Remand Decision, p. 44; Whene Aff., PORTAPPX00039-41; Inskeep Aff., PORTAPPX000346- 48. 76 Remand Decision, p. 44. 14 b. Recreation, Aesthetic Enjoyment, and Natural Resources - Section 4.6.3 In considering these environmental factors, DNREC relied on the TRM, testimony by Diamond State witnesses, including Mr. Devine, and an Environmental Assessment Technical Document prepared by Duffield Associates in March 2020 and revised in April 2022 (the “Technical Memo”), 77 among other evidence. 78 The 76F 7F Technical Memo concluded that recreational use on the river near the Project was limited due to the poor water quality because of chemical contamination. 79 The 78F memo further found that the impact on recreational boating in the area would be minimal and would not impact species in the area, including herring, alewife, and striped bass. 80 79F To minimize the impact on endangered species in the area, DNREC prohibited “in-water” work between March 15 and June 30 each year, which is the spawning season. 81 Additionally, in-situ monitoring during dredging activities was required 80F to ensure no adverse impact on sensitive species in the area. 82 81F 77 DSPCAPPX2_000001-199. 78 Remand Decision, p. 45. 79 Id.; Technical Memo, DSPCAPPX2_000074-75, 90-91. 80 Remand Decision, p. 46; Technical Memo, DSPCAPPX2_000187; Devine Aff., ¶¶ 105-07, DSPCAPPX2_000229-30. 81 Remand Decision, p. 47. 82 Id. 15 Mr. Devine testified that the subaqueous lands affected by the Project are not “practically accessible for public recreation.” 83 82F None is accessible from the shoreline and the area is “heavily industrialized,” further limiting the opportunity for recreational use. 84 83F The Board also considered Curran’s testimony that he uses the waters near the Project for recreational use. The Board did not find his testimony credible because he lives in Sussex County (which has easily accessible fishing and water recreation options) and he was vague about where he engaged in these activities in relation to the subaqueous lands impacted by the Project. 85 84F The Board concluded that DNREC properly considered the public interest as required by Regulation 4.6.3. Objections raised by Curran and Greenwich relating to navigation and safety issues in the main Channel, the Board ruled, fall within the jurisdiction of other agencies and expertise of other entities (Army Corp, Coast Guard, Pilots Association and Wilmington Tug, Inc.) and DNREC properly deferred to them. 86 85F 83 Id., p. 46. 84 Id., p. 46. 85 Id. Curran claimed to use the river all the way from Philadelphia to Lewes. Id. 86 Remand Decision, pp. 50-51. 16 2. Regulation 4.7 Regulation 4.7 mandates that DNREC “shall” consider: 4.7.1.2: Any effect on shellfishing, finfishing, or other recreational activities, and existing or designated water uses. 87 86F 4.7.1.3: Any harm to aquatic or tidal vegetation, benthic organisms or other flora and fauna and their habitats. 88 87F 4.7.1.5: Any impact of air quality, whether temporarily or permanently, including noise, odors, and hazardous chemicals. 89 88F 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. 90 89F a. Recreation For the reasons discussed above, the Board found that recreational fishing would not be impacted by the Project, as Curran contends. 91 90F b. Other Environmental Impacts Beginning in 2016, Duffield Associates conducted several rounds of sampling and analyses of the sediment and surface water at the site. 92 Working with federal 9 F agencies, such as the EPA and Army Corp, a plan was developed for monitoring 87 7 Del. Admin. C. § 7504-4.7.1.2. 88 7 Del. Admin. C. § 7504-4.7.1.3. 89 7 Del. Admin. C. § 7504-4.7.1.5. 90 7 Del. Admin. C. § 7504-4.7.4. 91 Remand Decision, p. 52, PORTAPPX000961. 92 Id., p. 53. 17 construction dredging and disposal of dredged sediment. 93 With the extensive 92F contamination from the DuPont facility, dredging was expected to have a positive impact, “leading to a ‘healthier more diverse benthic community.’” 94 93F The initial permit application included the “unprecedented use” of shoaling fans as a means to reduce the amount of maintenance dredging needed. The objectors raised concerns over the shoaling fans. DNREC objected to the fans due to their potential impact on aquatic life, including fish mortality. 95 94F Duffield Associates then submitted a revised plan that removed the shoaling fans and included a mitigation package to address the aquatic concerns. 96 The Board found that the 95F public comments regarding the fans were addressed by DNREC. DNREC also considered the environmental impact of dredging activities. The TRM found that the impact of sediment particles carrying contaminates and impacting water quality to “be limited in extent” and would be monitored. 97 Water 96F samples would be analyzed on a regular basis and Diamond State will be required to regularly sample the dredging slurry for toxins. 98 If discharge samples register 97F outside applicable standards, “corrective actions will be implemented.” 99 The 98F 93 Id. 94 Id. 95 Id., pp. 54-55. 96 Id., p. 55. 97 Id., p. 56. 98 Id., pp. 56-57. 99 Id., pp. 57-58, 61-62. 18 Board, relying on the TRM and the subject-matter experts, found that the proposed monitoring and corrective actions sufficiently addressed DNREC’s concerns. 100 99F The Board also addressed Curran’s evidence on environmental impacts. Curran’s expert, Damian Preziosi, 101 offered opinions on the Project’s impact on 100F aquatic life and habitats in the Project area. Mr. Preziosi opined that DNREC did not consider the impact on the habitat of Atlantic sturgeon. 102 The Board found that 01F contrary to this opinion, the record reflected extensive evidence on this “very topic.” 103 Curran also tendered the testimony of Dr. Tomasi, who opined that 102F DNREC failed to require adequate mitigation for the loss of recreational fishing and boating in the area. 104 Dr. Tomasi then provided his proposal for appropriate 103F mitigation. The Board found that Dr. Tomasi was “clearly a qualified expert in this area” but it was appropriate for DNREC to rely on its subject-matter experts whose conclusions were supported by evidence in the record. 105 104F 100 Id., pp. 57, 62-63. The Board also found the record supported the conclusion that DNREC’s concerns with air quality were addressed by various air quality regulations with which Diamond State must comply. Remand Decision, pp. 57-58. 101 Mr. Preziosi is “an environmental consultant specializing in ecological risk assessment.” CURRANAPPX-0915. 102 Remand Decision, p. 63, PORTAPPX000972. 103 Id.; Technical Memo, DSPCAPPX2_000029-33, 50-51. 104 Remand Decision, pp. 63-64. 105 Id., p. 64. 19 c. The Mitigation Plan DNREC required Diamond State to include a mitigation plan to mitigate against the potential impact of the Project, including the loss of 5.5 acres of subaqueous lands (the “Mitigation Plan”). 106 Diamond State’s Mitigation Plan 105F contained three phases. In Phase One, Diamond State will construct 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. 107 Diamond State will 06F be financially responsible for all aspects of this phase. 108 107F In Phase Two, Diamond State will fund an environmental DNA Fisheries Monitoring Program (eDNA). 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.” 109 108F Phase Three calls for Diamond State to make improvements at Fox Point State Park, including walking trails, an observation platform, and removal of vegetation 106 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; Remand Decision, p. 65. 107 Hearing Officer’s Report, p. 20, PORTAPPX000058. 108 Remand Decision, p. 66. 109 Hearing Officer’s Report, p. 20, PORTAPPX000058.; Remand Decision, p. 67. 20 to improve views of the river, in addition to other potential improvements. 110 109F Additional enhancements, such as road and lighting enhancements, are under consideration. 111 110F Relying on the testimony of Steven Smailer, 112 John Cargill, 113 and Brian 111F 112F Devine, and the TRM, the Board concluded that the Mitigation Plan “provides an adequate combination of direct in-kind replacement of lost habitat.” 114 113F The Board again addressed the evidence presented by Curran. Mr. Preziosi testified that the Mitigation Plan was “grossly insufficient” and did not “meet compensatory mitigation requirements.” 115 The Board noted that the applicable 114F regulation does not mandate how mitigation is to be implemented and Mr. Preziosi cited no legal authority for his conclusions. While Mr. Preziosi provided examples of what DNREC “might have done,” the Board found that the Mitigation Plan adequately balanced the public interest and the benefits of the Project. 116 115F 110 Hearing Officer’s Report, p. 21, PORTAPPX000059. 111 Remand Decision, p. 68. 112 DSPCAPPX2_000303-313. Mr. Smailer is DNREC’s Director of the Division of Water. He testified to the application process and Diamond State’s application timeline, the parallel federal agency process, and the environmental impacts and mitigation for the Project. 113 DSPCAPPX2_000314-323. Mr. Cargill is a DNREC employee. He provided a timeline of events relating to the Permit process, evaluation of environmental impact and mitigation, the shoaling fans, and navigation issues. 114 Remand Decision, pp. 65-71. 115 Id., p. 69. 116 Id. 21 Mr. Preziosi also opined on the need for mitigation of future maintenance dredging. The Board, however, found that future dredging is not a part of the initial permitting process and Diamond State will be required to apply for further permits which will address that issue. 117 116F 3. Regulation 4.11 Section 4.11.1.2 requires the Project “be designed” to “[m]aintain the navigability of channels.” The objectors argued that DNREC did not comply with the regulation as it relates to future dredging activities. 118 The Board noted that 117F Diamond State’s initial proposal included the use of shoaling fans to potentially help reduce the need for future maintenance. After the fan