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

Background

The San Francisco Bay Conservation and Development Commission (BCDC), an agency of the State of California, challenged plans by the United States Army Corps of Engineers to maintain two federal navigation channels: the Richmond Outer Harbor and the Pinole Shoal Channel. San Francisco Baykeeper, a private environmental group, intervened as an additional plaintiff. The parties agreed that both channels should be dredged, but disagreed about how often and with what equipment.

The Corps had historically dredged both channels annually. BCDC sought to continue annual dredging while limiting use of hydraulic, or hopper, dredges to no more than one of the two channels. The other channel would be dredged with a mechanical clamshell dredge. The Corps stated that complying with those conditions while dredging both channels every year would cost more, and it adopted a plan known as Course of Action No. 2. Under that plan, the Corps would dredge the two channels in alternating years using a hydraulic hopper dredge.

BCDC also imposed a condition requiring the Corps to maximize beneficial reuse of dredged sediment, including meeting goals from the Long-Term Management Strategy. The Regional Board’s water-quality certification separately required the Corps to implement one of two reduced-hydraulic-dredging alternatives. The Corps objected to the conditions and later adopted Course of Action No. 2.

Administrative Procedure Act Review

The plaintiffs brought claims under the Administrative Procedure Act, a federal law that allows courts to review certain final agency actions. The court held that the Corps’ November 2015 letters to BCDC and the Regional Board were not final agency actions reviewable under the Act. The court found, however, that the Corps’ January 2017 adoption of Course of Action No. 2 was a final agency action subject to review.

Beneficial-Reuse Condition

The court rejected BCDC’s argument that the Corps was legally required to accept the beneficial-reuse condition. Although the Long-Term Management Strategy and Bay Plan included goals and policies favoring beneficial reuse and limiting in-Bay disposal, the court found no showing that those general policy statements were enforceable requirements under the applicable regulatory framework. The Corps therefore was not legally obligated to accept that condition.

Reduced Hydraulic Dredging and Annual Dredging

The court found that Course of Action No. 2 complied with the state agencies’ express limit on hydraulic dredging because the Corps would use a hydraulic dredge in only one of the two channels each year. BCDC argued that the Corps should also be required to use a clamshell dredge in the other channel during that same year, so that both channels would continue to be dredged annually.

The court concluded that BCDC had not shown that its authority to regulate the Corps’ activities based on environmental concerns extended to requiring additional dredging to address commercial interests. The court also distinguished a prior case involving dredging in Cleveland Harbor, where a specific federal statute and congressional funding had created an obligation to dredge the entire channel and pay the full cost of complying with the state’s conditions. The court found no comparable congressional funding or statutory obligation here.

Because the Corps’ plan did not exceed the state agencies’ limits on hydraulic dredging, and because BCDC had not identified an enforceable legal duty requiring the Corps to do more dredging, the court held that BCDC could not prevail.

Additional Motions and Disposition

The court denied the plaintiffs’ motion to supplement the administrative record with two budget documents. The court held that the documents were not properly part of the administrative record and, even if considered, did not establish that the Corps had a legal obligation to dredge both channels annually.

The court deemed the Western States Petroleum Association’s proposed amicus brief filed and reviewed it, but stated that the brief did not alter the analysis.

The Corps’ motion for summary judgment was granted, and the joint motion by BCDC and Baykeeper was denied. Because Baykeeper had been permitted to pursue Clean Water Act claims beyond those BCDC could pursue, but no direct Clean Water Act claim was advanced in the summary-judgment motions, the court directed the parties to file a joint statement identifying what claims, if any, remained. If the parties agreed that the order effectively disposed of the entire action, the Corps was directed to submit a proposed judgment.