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SF Bay Conservation and Development Commission v. United States Army Corps of Engineers

United States District Court, N.D. California

November 4, 2019

SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION, Plaintiff,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

          ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          RICHARD SEEBORG UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This is an APA action challenging certain plans the U.S. Army Corps of Engineers has made regarding how and when it will periodically dredge two specific shipping channels in the San Francisco Bay to keep them navigable by large ships. Plaintiff is an agency of the State of California-the San Francisco Bay Conservation and Development Commission (“BCDC”).[1]

         Environmental regulation of the Bay implicates a host of federal and state agencies, laws, and regulations. Further complicating matters, in many instances federal law delegates various policy making and enforcement powers to the state, such that state regulations then effectively have the force of federal law and cannot be overridden by a federal agency's rules.

         The parties have brought cross-motions for summary judgment. Navigating through the river of applicable laws and rules, the end of the passage finds defendants entitled to summary judgment because BCDC cannot show the Corps has any obligation to dredge both the channels in dispute on an annual basis.

         II. FACTUAL OVERVIEW

         The Corps conducts maintenance dredging of eleven federal navigation channels in and into the Bay. Six of these channels are deep draft (i.e., greater than 15 feet deep), to allow access for oil tankers and other deep draft vessels. Historically, the Corps dredged all of the channels annually, except for Redwood City Harbor, which it dredges every one to two years. The current dispute relates to the Richmond Outer Harbor and to the Pinole Shoal Channel.

         Dredging involves removing accumulated sediment from the channels. The Corps uses two different types of dredges in the Bay: hydraulic or “hopper” dredges and mechanical or “clamshell” dredges. Hopper dredges use suction pumps to draw sediment and water into a “draghead” that is pulled over the bottom of a channel. Clamshell dredges use buckets that scoop material from the channel bed. There is no dispute that use of hopper dredges negatively impacts fish populations. There also is no question, however, that hopper dredges work much faster, and therefore are more economical to use. BCDC insists clamshell dredges ordinarily do not hurt fish. The Corps contends the degree to which clamshell dredges are less harmful to fish than hopper dredges is an open question.

         Dredged sediment is transported to and deposited at three different types of sites: 1) ocean disposal sites; 2) in-Bay disposal sites; and 3) beneficial reuse sites, where the material is used for projects such as wetland restoration, beach nourishment, and levee maintenance. Currently, three ocean disposal sites exist for Bay sediment. The largest-the San Francisco Deep Ocean Disposal Site-is located 55 miles west of the Golden Gate. There are four in-Bay sediment disposal sites, and several beneficial reuse placement sites that are approved to accept dredged sediment or are in the process of being approved.

         The parties agree that the Richmond Outer Harbor and Pinole Shoal Channel should be dredged-this is not a case where state environmental interests are opposed to Corps activity. Indeed, BCDC's position is that the Richmond Outer Harbor and the Pinole Shoal Channel should be dredged annually-that is, twice as often as the Corps has decided it will dredge the channels. The dispute arose because California state agencies sought to impose certain conditions on the dredging-primarily that hopper dredges be used in no more than one of the two channels-and the Corps contends it cannot afford to comply with the conditions if it dredges every year.

         In essence, when the state agencies imposed conditions BCDC envisioned the Corps would continue to dredge both channels each year-one with a hopper dredge, and the other with a clamshell dredge, presumably alternating which channel got which type of dredge each year. The Corps responded by electing to provide an identical reduction in hopper dredge use-only one channel will be hopper-dredged each year-but eliminating clamshell dredging of the other channel. A more detailed chronology of the dispute is set out below.

         III. REGULATORY FRAMEWORK

         It is undisputed that the Corps has the duty and authority to maintain the federal navigational channels in the Bay, including Richmond Outer Harbor and the Pinole Shoal Channel. Congress has delegated to the State, however, responsibility for protecting coastal resources and water quality under the Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq., (“CZMA”) and the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (“CWA”).

         BCDC is the state agency designated under the CZMA for the Bay. Similarly, the San Francisco Bay Regional Water Quality Control Board (“The Regional Board”) is designated to enforce the CWA.

         The CZMA encourages each coastal state to develop a Coastal Zone Management Plan (“CZMP”), which is then submitted to the Office of Coastal Management (“OCM”) within the National Ocean and Atmospheric Administration for approval. Thus, the CZMA “effect[s] a federal-state partnership to ensure water quality and coastal management around the country, so that state standards approved by the federal government become the federal standard for that state.” Islander E. Pipeline Co. v. McCarthy, 525 F.3d 141, 143-44 (2nd Cir. 2008) (emphasis added & citation omitted).

         Once OCM approves a CZMP, the state obtains delegated federal authority to review and approve any federal agency activity within or outside the state coastal zone “that affects any land or water use or natural resource of the coastal zone.” 16 U.S.C. § 1456(c)(1)(A). The CZMA requires that all such federal agency activities “be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies” of the state's approved CZMP. Id.; 15 C.F.R. §§ 930.30, 930.39(c). The CZMA requires each federal agency that proposes to carry out an activity that may affect any land or water use or natural resource in the coastal zone to provide a “consistency determination” to the designated state coastal zone management agency (here, BCDC) at least ninety days prior to the federal agency's final approval of the activity. 16 U.S.C. § 1456(c)(1)(C); 15 C.F.R. § 930.36(b)(1).

         The consistency determination must explain whether and how the proposed federal activity is “consistent to the maximum extent practicable” with the “enforceable policies” of the federally-approved state CZMP. 15 C.F.R. §§ 930.36(a), 930.39(a), (c). “Consistent to the maximum extent practicable” means “fully consistent with the enforceable policies of management programs unless full consistency is prohibited by existing law applicable to the Federal agency.” Id. § 930.32(a)(1) (emphasis added).

         The state may then concur, conditionally concur, or object to the federal agency's consistency determination. Id. § 930.41(a). If the federal agency does not agree with any conditions imposed by the state, then the federal agency may not proceed with the action unless it finds that: (1) its proposed action is fully consistent with the state CZMP notwithstanding the state's objections; or (2) consistency with the enforceable policies of the state's CZMP is legally prohibited and the federal agency has “clearly described, in writing, to the State agency the legal impediments to full consistency.” Id. § 930.43(d).

         The CWA works in a similar fashion. It requires each state to prepare Water Quality Standards that “protect the public health or welfare, enhance the quality of water and serve the purposes of the [CWA].” 33 U.S.C. § 1313(c)(2)(A). The EPA then reviews the state Water Quality Standards and determines whether they meet the CWA's requirements. 33 U.S.C. § 1313(c)(3). Once approved by the EPA, the State's Water Quality Standards are federally-enforceable standards under the CWA. Id.

         Section 401 of the CWA gives states authority to ensure that activities in navigable waters in the state meet federally-approved state standards. See 33 U.S.C. § 1341. Whenever an entity applies for a federal license or permit for an activity that “may result in any discharge into navigable waters, ” that applicant must first obtain a water quality certification (“WQC”) from the applicable state agency (here, the Regional Board) that the applicant's activity will not violate the standards. Id. § 1341(a)(1). If necessary, the WQC must include “limitations” to ensure the activity meets the requirements of the CWA and “any other appropriate requirement of State law.” Id. § 1341(d); see also 40 C.F.R. § 121.2(a)(4) (authorizing the state to include “any conditions which the [state] deems necessary or desirable with respect to the discharge of the activity”).

         The Corps' maintenance dredging operations are subject to the CWA, including section 401. 33 U.S.C. §§ 1344(t), 1323. The CWA expressly mandates that federal agencies “engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants . . . comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution.” Id. § 1323(a).

         Additionally, CWA section 404 requires a person to obtain a permit from the Corps for any discharge of dredged sediment into navigable waters. 33 U.S.C. § 1344(a), (d). Pursuant to section 404(b)(1), the EPA has adopted criteria for CWA section 404 permits to protect aquatic fish, wildlife, and ecosystems and ensure compliance with state Water Quality Standards. See generally 40 C.F.R. Part 230 (404(b)(1) Guidelines); 40 C.F.R. §§ 230.10(b), (c), 230.12(a)(3). When the Corps is the discharger, it does not need to obtain a section 404 permit from itself; however, the Corps is required to comply with “all applicable substantive legal requirements, including . . . application of the section 404(b)(1) guidelines.” 33 C.F.R. § 336.1(a).

         Finally, the Corps has adopted regulations governing its maintenance dredging operations, which require it to comply with the CZMA, CWA, and other environmental laws. See generally 33 C.F.R. Parts 335-338 (CDR); see also 33 C.F.R. §§ 335.2, 335.5(a), 335.6(h), 336.1(a), 336.1(b)(4). The Corps' regulations set forth its policy:

[T]o regulate the discharge of dredged material from its projects to assure that dredged material disposal occurs in the least costly, environmentally acceptable manner, consistent with engineering requirements established for the project . . . [t]he least costly alternative, consistent with sound engineering practices and selected through the 404(b)(1) guidelines or ocean disposal criteria, will be designated the Federal standard for the proposed project.

Id. § 336.1(c)(1) (emphases added); see also id. § 335.4 (dredging will be done “in the least costly manner . . . consistent with engineering and environmental requirements”). The Corps refers to this as the “Federal Standard” dredging alternative. See id. § 335.7 (definition of the “Federal Standard”).

         IV. CHRONOLOGY

         In 1969 BCDC prepared, and the California Legislature adopted, the San Francisco Bay Plan. In 1977, the Bay Plan was approved in its entirety by OCM as part of California's CZMP. Similarly, the EPA has approved the Water Quality Standards promulgated by the Regional Board as part of the “Water Quality Control Plan for the San Francisco Bay Basin.” In 2001, the Corps, EPA, BCDC, the Regional Board, and the State Water Resources Control Board collectively adopted the Long-Term Management Strategy for the Placement of Dredged Material in the San Francisco Bay Region (“the LTMS”). The primary intent was to move away from the historical practice of dumping approximately 80% of dredged material back into the Bay itself. The LTMS identified four overarching objectives: (1) to maintain navigation channels in an economically and environmentally sound manner and eliminate unnecessary dredging activities in the Bay and Oakland Estuary; (2) to conduct dredged material disposal in the most environmentally sound manner; (3) to maximize beneficial use of dredged material as a resource; and (4) to develop a coordinated and cooperative permitting framework for dredging operations and dredged material disposal in the Bay.

         The LTMS set a long term goal that no more than 20% of dredged sediment would be disposed in the Bay, no more than 40% in the ocean, and not less than 40% would be applied to beneficial reuse. These goals were largely met during the first twelve years of the program, according to a report ...


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