California Coastal Com'n v. U.S., 97cv2219 JM(LSP).

• Decision Date: 28 January 1998
• Docket Number: No. 97cv2219 JM(LSP).,97cv2219 JM(LSP).
• Citation: 5 F.Supp.2d 1106
• Court: U.S. District Court — Southern District of California
• Parties: CALIFORNIA COASTAL COMMISSION, Plaintiff, v. UNITED STATES of America, Department of the Navy, Secretary of the Navy, Defendant.

5 F.Supp.2d 1106

CALIFORNIA COASTAL COMMISSION, Plaintiff, v.UNITED STATES of America, Department of the Navy, Secretary of the Navy, Defendant.

No. 97cv2219 JM(LSP).

United States District Court, S.D. California.

January 28, 1998.

Jamee Jordan Patterson, Deputy Attorney General, San Diego, CA, for Plaintiff.

Tom Stahl, Asst. U.S. Atty., San Diego, CA, for Defendant.

Order for a Conditional Preliminary Injunction

MILLER, District Judge.

PlaintiffCalifornia Coastal Commission seeks a preliminary injunction against defendants United States of America, Department of the Navy, and Secretary of the Navy enjoining the disposal of dredged material from the San Diego Bay previously designated for coastal beach replenishment.This dredging of the bay is part of a homeporting project by which the Navy will base a Nimitz class aircraft carrier.Defendants oppose the motion for a preliminary injunction.After careful consideration of all the pleadings, parties' arguments and applicable law, the court rules as follows:

BACKGROUND

This case deals with the fundamental federal policy of conforming a federal coastal project to meet the dictates, to "the maximum extent possible," of state coastal management plans.This federal policy is codified in federal legislation known as the Coastal Zone Management Act (CZMA)16 U.S.C. §§ 1451,1456(c)(1).

PlaintiffCalifornia Coastal Commission(Commission) is the state agency responsible for review of federal agency projects for consistency with the federally approved California Coastal Management Program (CMP).The Commission reviewed and approved the Homeporting project of defendants United States of America, Department of the Navy, and Secretary of the Navy(collectively, the Navy) which included the dredging of portions of the San Diego Bay and the use of dredged sandy material for beach replenishment along certain San Diego coastal communities.¹In 1995, the Navy submitted Consistency Determination (CD) 95-95 which discussed the specifics of the dredging and disposal of the sandy material.Specifically, CD 95-95 called for the deposit of approximately 7.9 million cubic yards of material to Imperial Beach, Mission Beach, Del Mar and Oceanside to replenish areas affected by erosion.Additionally, 2 million cubic yards of other material not suitable for replenishment was to be disposed of in the ocean itself at site LA-5 approximately 4.5 miles off the coast of Point Loma.The remaining material, unsuitable for ocean disposal, would be confined to a new wharf structure at NASNI.

On November 16, 1995 the Commission concurred with CD 95-95 and the Navy commenced its dredging project in September, 1997.Shortly thereafter, live ordnance and munitions were discovered in the dredged material deposited on the beach.

In October, 1997 the Navy requested that the Commission concur with modifications to the project which would permit the disposal of 2.5 million cubic yards of dredged material earlier designated for beach replenishment at the LA-5 site.The Navy contends it requested the modifications in order to continue dredging while a long term solution was found.According to the Navy, an interruption of the dredging would result in excessive dredging expenses and a possible delay in the Homeporting project.On October 17, 1997 the Navy submitted a new CD (CD-140-97) which proposed that all remaining sediment be dumped into the ocean at LA-5 and that some inner channel materials be used for beach replenishment.The Navy asserts that CD 140-97 called for the use of a 3 inch ordnance grate to screen out larger ordnance in the outer channel.The Navy recognized however, that it did not know the exact size of the ordnance in the outer channel and the possibility existed that some of the ordnance was too small to be sifted through the grate.Thus, the Navy could not guarantee that all ordnance would be removed through its grating system proposed in CD 140-97.According to the Commission, CD 140-97 also discussed a second alternative whereby a 3/8 inch screen on the beach would be coupled with the 3 inch screen on the dredge to eliminate the public health risks from the ordnance.CD 140-97 indicated the second alternative would be more costly and time consuming than the first.

In late October, 1997 the Navy commissioned a consulting firm to examine available sand screening technologies and prepare a report of findings (Harris Report).A preliminary report was submitted to the Navy in November, 1997.This report however, was not provided to the Commission until December 23, 1997.According to the Commission, this draft report outlines a number of alternatives to disposing the dredged material at LA-5 which the Commission believes should be explored more fully by the parties for a possible solution to the problem posed by the ordnance.

In November, 1997 the Commission held a public hearing to discuss CD 140-97.During the hearing the Navy again modified the project to limit the disposal of materials at LA-5 to 500,000 cubic yards.The Commission objected to CD 140-97 stating that the amended project was not consistent with the requirement of the Coastal Zone Management Act (CZMA) that a project conform to a state coastal management plan to the maximum extent possible,² that alternatives were available which would permit the Navy to complete the dredging as originally planned, and that the Navy had failed to document the cost of alternatives.

On November 13, 1997 the Navy submitted a further modified CD (CD 161-97) for Commission concurrence.CD 161-97 proposed disposal of up to 883,000 cubic yards of material at the LA-5 site for 30 days.The Navy also updated the potential costs involved in the delay of dredging activities.Finally, the Navy proposed further negotiations with the Commission to resolve the Commission's objections to CD 140-97 and explore reasonable alternatives to the disposal at LA-5.A public hearing was scheduled for December 11, 1997 regarding CD 161-97, but the proposal was withdrawn from Commission consideration by the Navy.

On November 19, 1997 the Navy sought and received a permit modification from the U.S. Army Corps of Engineers (Corps) which authorized the Navy to dispose of the remaining materials at LA-5.This modification was issued pursuant to § 404 of the Clean Water Act33 U.S.C. § 1344(CWA) which gives the Corps authority to regulate the Navy's dredging and disposal operations for the project.The Corps approved this modification without Commission concurrence which the Navy contends thereby became unnecessary.

On November 19, 1997 the Navy sent a letter to the Commission indicating that the Navy intended to continue dredging and disposal of previously designated beach replenishment at the LA-5 site without the Commission's concurrence.The Navy also indicated that it planned to "fully investigate beach nourishment options for placement of sand from the Homeporting project in coordination with the California Coastal Commission."

The Commission now moves for a preliminary injunction enjoining the Navy from further dredging and disposal of beach replenishment until the alternatives outlined in the Harris Report, CD 161-97 and other reports generated by the Commission are explored.The Commission submits the Navy is in violation of the CZMA as it has not demonstrated that the disposal of all material at the LA-5 site is consistent to the maximum extent practicable with the state's CMP under the CZMA.Further the Commission argues that the Navy has never demonstrated, as required by state and federal law, that alternatives to ocean dumping or other mitigation measures are unfeasible or impracticable.The Commission believes that injunctive relief is appropriate as the public will suffer irreparable injury from the continued dredging and disposal of beach replenishment which would otherwise be irretrievably lost.The Commission submits it is likely to ultimately succeed on the merits of its claim.

The Navy opposes the motion stating that the provisions of the CMP are not applicable as the ordnance laden material is not suitable for beach replenishment, that consistency with the CMP does not require the Navy to violate other applicable federal or state laws (in this case§ 404 of the CWA) and that the discovery of ordnance was an unforeseeable event which, under the CZMA, allows the Navy to deviate from the CMP.Additionally, the Navy argues that a preliminary injunction would impose a great hardship on the Navy and that the Commission has failed to establish the likelihood of success or that the balance of hardships tips in its favor.

DISCUSSION

REQUIREMENTS UNDER THE CZMA AND CALIFORNIA COASTAL ACT

Federal agencies seeking to engage in project activity in a coastal zone must comply with the requirements of the CZMA.16 U.S.C. § 1456(c)(1), (2).Section 307(c)(1)(A) of the CZMA states, in pertinent part:

Each federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved state management programs.

A federal agency is required to submit a "consistency determination"(as previously discussed "CD") to the state no later than 90 days before the proposed activity indicating that the federal activity would likely affect the coastal zone.15 C.F.R. § 930.34.

The California Coastal Act (CCA) addresses the federal activity in this case.Under § 30233(a) of the CCA:

[t]he diking, filing, or dredging of open coastal waters ... shall be permitted where there is no feasible less environmentally damaging alternative, and where feasible mitigation measures have been provided to minimize adverse environmental effects.

Section 30233(b) of the CCA further provides that:

[d]redging and spoils disposal shall be planned and carried out to avoid significant...