S.F. Bay Conservation & Dev. Comm'n v. U.S. Army Corps of Eng'rs
| Decision Date | 06 August 2021 |
| Docket Number | No. 20-15576,20-15576 |
| Citation | 8 F.4th 839 |
| Parties | SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION, Plaintiff-Appellant, San Francisco Baykeeper, Intervenor-Plaintiff-Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS; Todd T. Semonite, in his official capacity; John D. Cunningham, in his official capacity; Rickey Dale James, Assistant Secretary of the Army for Civil Works, in his official capacity, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Tara L. Mueller (argued), Deputy Attorney General; David G. Anderson, Supervising Deputy Attorney General; Daniel A. Olivas, Senior Assistant Attorney General; Attorney General's Office, Oakland, California; Marc A. Zeppetello, Chief Counsel, San Francisco Bay Conservation and Development Commission, San Francisco, California; for Plaintiff-Appellant. Nicole C. Sasaki (argued), Staff Attorney, San Francisco Baykeeper Inc., Oakland, California, for Intervenor-Plaintiff-Appellant.
Ellen J. Durkee (argued), Leslie M. Hill, and Jacqueline M. Leonard, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jonathan D. Brightbill, Acting Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Melanie L. Casner and Roselyn J. Wang, Attorneys, United States Army Corps of Engineers, Washington, D.C.; for Defendants-Appellees.
Before: Mary M. Schroeder, Milan D. Smith, Jr., and Lawrence VanDyke, Circuit Judges.
INTRODUCTION
This case illustrates how the San Francisco Bay Area's economic and environmental destinies are entrusted to multiple governmental agencies, state and federal, and how those agencies must resolve difficult issues when one agency proposes to take action impacting the interests of others. The issues raised here relate to plans proposed by the United States Army Corps of Engineers ("the Corps") for the dredging of the Bay's eleven navigational channels during and after 2017. Federal laws require review of such plans by two California state agencies: the San Francisco Bay Conservation and Development Commission ("the Commission"), as the proposed dredging would affect the coastal environment, and the San Francisco Regional Water Control Board ("the Water Board" or "the Board"), as the proposed plan would affect water quality. The claims before us are the result of disagreements about where to deposit dredged material, how often to dredge certain channels, and what equipment to use to dredge those channels.
When, in 2015, the Corps submitted its dredging plans for 2017 and subsequent years to the Commission and Board for approval, those state agencies attempted to receive assurances from the Corps with respect to two aspects of the proposed dredging. First, the Commission sought a commitment from the Corps regarding what to do with the dredged material. It was particularly concerned with how much of the dredged material would be deposited back into the Bay and how much would be committed to beneficial reuse projects such as wetland restoration. Second, in order to protect imperiled native fish, both the Commission and the Board sought to limit the Corps’ use of a certain dredging method—hydraulic dredging—in two specific Bay channels. The Corps ended up giving different answers to these two conditions when it made its final decision in early 2017. It refused to comply with the first condition about where to dispose of dredged material. It purported to comply with the second condition by proposing to hydraulically dredge only one of the two channels in question each year and to leave the other undredged until the next year.
By the time the Corps made its final decision, the Commission had filed this action in federal district court pursuant to the Administrative Procedure Act (APA). The Commission contended that the Corps’ refusal to comply with the two conditions violated the Coastal Zone Management Act (CZMA) because it violated policies adopted pursuant to that statute and was arbitrary and capricious. San Francisco Baykeeper, an environmental nonprofit organization, intervened, contending the Corps’ decision also violated the Clean Water Act (CWA). The district court granted summary judgment to the Corps, holding it had not violated any applicable provision of law. The Commission and Baykeeper ("Plaintiffs") appeal. The legal issues before us relate only to the Corps’ 2017 final decision, not to the subsequent operations conducted pursuant to it.
We affirm the district court. The condition about where to dispose of dredged material was not itself an enforceable policy under the CZMA and its implementing regulations, nor was it tied to any enforceable policy as contemplated by those regulations. See 15 C.F.R. §§ 930.4(a)(1), 930.11(h). The Corps was therefore not obligated to comply with that condition. As for the state agencies’ condition limiting the Corps’ hydraulic dredging in two particular channels, the Corps’ final 2017 plan complied with the express terms of that condition. The Corps’ plan therefore did not violate the CZMA or the CWA. Nor was the Corps's decision arbitrary or capricious or in violation of any material reporting requirements.
Because sediment accumulates in channels over time, dredging—removing sediment from channel beds, often for transport and disposal elsewhere—is required to keep channels navigable. One aspect of this case involves where dredgers may deposit dredged sedimentary material. There are three alternatives: (1) in-Bay disposal sites, which are the cheapest to use but environmentally disfavored; (2) beneficial reuse sites, which are environmentally favored but the most expensive; or (3) ocean disposal sites. The Commission wanted the Corps to commit to depositing at least 40% of its dredged material at beneficial reuse sites, and no more than 20% at in-Bay sites ("the 20/40 Disposal Condition").
The second aspect of this case deals with the differences between two methods of dredging: hydraulic (or "hopper") dredging and mechanical (or "clamshell") dredging. Hydraulic dredging works by using a suction to remove material from the channel floor, while mechanical dredging scoops such material in order to remove it. The state agencies sought to limit use of hydraulic dredging in the Richmond Outer Harbor ("Richmond channel") and the Pinole Shoal Channel ("Pinole channel") out of concern for the delta and longfin smelt, two imperiled native fish species. Hydraulic dredging is less expensive than the alternative method of mechanical dredging, but more likely to kill imperiled fish. Both state agencies thus sought to limit the Corps’ use of hydraulic dredging in these two channels to one channel per year. The Corps decided to comply with this condition, but in an unexpected manner: by hydraulically dredging only one of the two channels each year in alternating fashion—and, rather than mechanically dredging the other channel, simply leaving it entirely undredged that year. Plaintiffs claim that the Corps’ decision violated federal law.
We therefore turn to the two major federal statutes involved, the Coastal Zone Management Act and the Clean Water Act. Our review must include the policies and procedures for federal-state cooperation that these statutes and related regulations prescribe.
The Coastal Zone Management Act was enacted in 1972 "to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone." 16 U.S.C. § 1452(1). The coastal zone includes both the coastal waters and the adjacent shorelands. 16 U.S.C. § 1453(1). The CZMA, invoking cooperative federalism, encourages states to develop management programs for their coastal zones. 16 U.S.C. § 1451(i). Once approved by the National Ocean and Atmospheric Administration (NOAA), each such state-submitted coastal zone management program becomes the governing federal standard for federal agency activity involving that coastal zone. 16 U.S.C. §§ 1455, 1456(c)(1)(A) ; 15 C.F.R. § 930.11(h).
California has a federally approved management program for the San Francisco Bay Area. One of the central components of this management program is a comprehensive coastal conservation and development plan known as the San Francisco Bay Plan ("Bay Plan"), San Francisco Bay Conservation & Dev. Comm'n (May 2020), https://bcdc.ca.gov/pdf/bayplan/bayplan.pdf. The creation of the Bay Plan preceded the CZMA because the California Legislature acted before Congress did. See Acme Fill Corp. v. S.F. Bay Conservation & Dev. Comm'n , 187 Cal.App.3d 1056, 232 Cal. Rptr. 348, 353 (1986). The 1965 McAteer–Petris Act, Cal. Gov. Code § 66600 et seq. , created the Commission in 1965, and the Commission completed and adopted the Bay Plan over the following three years. Acme Fill , 232 Cal. Rptr. at 353. Thus, by the time Congress enacted the CZMA in 1972, California already had a statutory scheme and comprehensive coastal management program in place. Id. In 1977, NOAA formally approved the management program for the San Francisco Bay Area, and the Commission and its Bay Plan were accordingly wholly incorporated into the CZMA's federal scheme. Id. at 350 ; see Bay Plan, at 9.
The Bay Plan contains dozens of findings and policies on dredging and other topics, so it is no surprise that the Commission has periodically amended the Bay Plan since its adoption a half-century ago. See id. , Letter (before Table of Contents).
The CZMA allows states to amend their coastal zone management programs, but, importantly, it mandates that any amendment must be approved by NOAA in order to render it legally enforceable against the federal government. 16 U.S.C. § 1455(e) ; 15 C.F.R. § 930.11(h) ; see Coastal Zone Management Act Program Changes, National Oceanic and...
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