United States District Court, N.D. California
SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION, Plaintiff,
UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY
RICHARD SEEBORG UNITED STATES DISTRICT JUDGE
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
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.
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
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.
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.
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
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.
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.
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.
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.
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).
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).
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
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.
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.
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”).
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).
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).
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
[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
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
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
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 ...