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

• Court: District Court, N.D. California
• Decided: November 4, 2019
• Docket: 3:16-cv-05420
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO BAY 10 CONSERVATION AND DEVELOPMENT Case No. 16-cv-05420-RS COMMISSION, 11 Plaintiff, ORDER DENYING PLAINTIFF’S 12 MOTION FOR SUMMARY v. JUDGMENT AND GRANTING 13 DEFENDANT’S MOTION FOR UNITED STATES ARMY CORPS OF SUMMARY JUDGMENT 14 ENGINEERS, et al.,

15 Defendants.

16 I. INTRODUCTION 17 This is an APA action challenging certain plans the U.S. Army Corps of Engineers 18 has made regarding how and when it will periodically dredge two specific shipping 19 channels in the San Francisco Bay to keep them navigable by large ships. Plaintiff is an 20 agency of the State of California—the San Francisco Bay Conservation and Development 21 Commission (“BCDC”).1 22 Environmental regulation of the Bay implicates a host of federal and state agencies, 23 24

25 1 A private environmental group, San Francisco Baykeeper, was permitted to intervene as an additional plaintiff and has joined with BCDC in the present motions. 26

27 1 laws, and regulations. Further complicating matters, in many instances federal law 2 delegates various policy making and enforcement powers to the state, such that state 3 regulations then effectively have the force of federal law and cannot be overridden by a 4 federal agency’s rules. 5 The parties have brought cross-motions for summary judgment. Navigating through 6 the river of applicable laws and rules, the end of the passage finds defendants entitled to 7 summary judgment because BCDC cannot show the Corps has any obligation to dredge 8 both the channels in dispute on an annual basis. 9 10 II. FACTUAL OVERVIEW 11 The Corps conducts maintenance dredging of eleven federal navigation channels in 12 and into the Bay. Six of these channels are deep draft (i.e., greater than 15 feet deep), to 13 allow access for oil tankers and other deep draft vessels. Historically, the Corps dredged all 14 of the channels annually, except for Redwood City Harbor, which it dredges every one to 15 two years. The current dispute relates to the Richmond Outer Harbor and to the Pinole 16 Shoal Channel. 17 Dredging involves removing accumulated sediment from the channels. The Corps 18 uses two different types of dredges in the Bay: hydraulic or “hopper” dredges and 19 mechanical or “clamshell” dredges. Hopper dredges use suction pumps to draw sediment 20 and water into a “draghead” that is pulled over the bottom of a channel. Clamshell dredges 21 use buckets that scoop material from the channel bed. There is no dispute that use of 22 hopper dredges negatively impacts fish populations. There also is no question, however, 23 that hopper dredges work much faster, and therefore are more economical to use. BCDC 24 insists clamshell dredges ordinarily do not hurt fish. The Corps contends the degree to 25 which clamshell dredges are less harmful to fish than hopper dredges is an open question. 26 Dredged sediment is transported to and deposited at three different types of sites: 27 1) ocean disposal sites; 2) in-Bay disposal sites; and 3) beneficial reuse sites, where the 1 material is used for projects such as wetland restoration, beach nourishment, and levee 2 maintenance. Currently, three ocean disposal sites exist for Bay sediment. The largest—the 3 San Francisco Deep Ocean Disposal Site—is located 55 miles west of the Golden Gate. 4 There are four in-Bay sediment disposal sites, and several beneficial reuse placement sites 5 that are approved to accept dredged sediment or are in the process of being approved. 6 The parties agree that the Richmond Outer Harbor and Pinole Shoal Channel should 7 be dredged—this is not a case where state environmental interests are opposed to Corps 8 activity. Indeed, BCDC’s position is that the Richmond Outer Harbor and the Pinole Shoal 9 Channel should be dredged annually—that is, twice as often as the Corps has decided it 10 will dredge the channels. The dispute arose because California state agencies sought to 11 impose certain conditions on the dredging—primarily that hopper dredges be used in no 12 more than one of the two channels—and the Corps contends it cannot afford to comply 13 with the conditions if it dredges every year. 14 In essence, when the state agencies imposed conditions BCDC envisioned the Corps 15 would continue to dredge both channels each year—one with a hopper dredge, and the 16 other with a clamshell dredge, presumably alternating which channel got which type of 17 dredge each year. The Corps responded by electing to provide an identical reduction in 18 hopper dredge use—only one channel will be hopper-dredged each year—but eliminating 19 clamshell dredging of the other channel. A more detailed chronology of the dispute is set 20 out below. 21 22 III. REGULATORY FRAMEWORK 23 It is undisputed that the Corps has the duty and authority to maintain the federal 24 navigational channels in the Bay, including Richmond Outer Harbor and the Pinole Shoal 25 Channel. Congress has delegated to the State, however, responsibility for protecting 26 coastal resources and water quality under the Coastal Zone Management Act, 16 U.S.C. §§ 27 1451 et seq., (“CZMA”) and the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (“CWA”). 1 BCDC is the state agency designated under the CZMA for the Bay. Similarly, the San 2 Francisco Bay Regional Water Quality Control Board (“The Regional Board”) is 3 designated to enforce the CWA. 4 The CZMA encourages each coastal state to develop a Coastal Zone Management 5 Plan (“CZMP”), which is then submitted to the Office of Coastal Management (“OCM”) 6 within the National Ocean and Atmospheric Administration for approval. Thus, the CZMA 7 “effect[s] a federal-state partnership to ensure water quality and coastal management 8 around the country, so that state standards approved by the federal government become the 9 federal standard for that state.” Islander E. Pipeline Co. v. McCarthy, 525 F.3d 141, 143- 10 44 (2nd Cir. 2008) (emphasis added & citation omitted). 11 Once OCM approves a CZMP, the state obtains delegated federal authority to 12 review and approve any federal agency activity within or outside the state coastal zone 13 “that affects any land or water use or natural resource of the coastal zone.” 16 U.S.C. § 14 1456(c)(1)(A). The CZMA requires that all such federal agency activities “be carried out 15 in a manner which is consistent to the maximum extent practicable with the enforceable 16 policies” of the state’s approved CZMP. Id.; 15 C.F.R. §§ 930.30, 930.39(c). The CZMA 17 requires each federal agency that proposes to carry out an activity that may affect 18 any land or water use or natural resource in the coastal zone to provide a “consistency 19 determination” to the designated state coastal zone management agency (here, BCDC) at 20 least ninety days prior to the federal agency’s final approval of the activity. 16 U.S.C. § 21 1456(c)(1)(C); 15 C.F.R. § 930.36(b)(1). 22 The consistency determination must explain whether and how the proposed federal 23 activity is “consistent to the maximum extent practicable” with the “enforceable policies” 24 of the federally-approved state CZMP. 15 C.F.R. §§ 930.36(a), 930.39(a), (c). “Consistent 25 to the maximum extent practicable” means “fully consistent with the enforceable policies 26 of management programs unless full consistency is prohibited by 27 existing law applicable to the Federal agency.” Id. § 930.32(a)(1) (emphasis added). 1 The state may then concur, conditionally concur, or object to the federal agency’s 2 consistency determination. Id. § 930.41(a). If the federal agency does not agree with any 3 conditions imposed by the state, then the federal agency may not proceed with the action 4 unless it finds that: (1) its proposed action is fully consistent with the state CZMP 5 notwithstanding the state’s objections; or (2) consistency with the enforceable policies of 6 the state’s CZMP is legally prohibited and the federal agency has “clearly described, in 7 writing, to the State agency the legal impediments to full consistency.” Id. § 930.43(d). 8 The CWA works in a similar fashion. It requires each state to prepare Water 9 Quality Standards that “protect the public health or welfare, enhance the quality of water 10 and serve the purposes of the [CWA].” 33 U.S.C. § 1313(c)(2)(A). The EPA then reviews 11 the state Water Quality Standards and determines whether they meet the CWA’s 12 requirements. 33 U.S.C. § 1313(c)(3). Once approved by the EPA, the State’s Water 13 Quality Standards are federally-enforceable standards under the CWA. Id. 14 Section 401 of the CWA gives states authority to ensure that activities in navigable 15 waters in the state meet federally-approved state standards. See 33 U.S.C. § 1341. 16 Whenever an entity applies for a federal license or permit for an activity that “may result in 17 any discharge into navigable waters,” that applicant must first obtain a water quality 18 certification (“WQC”) from the applicable state agency (here, the Regional Board) that the 19 applicant’s activity will not violate the standards. Id. § 1341(a)(1). If necessary, the WQC 20 must include “limitations” to ensure the activity meets the requirements of the CWA and 21 “any other appropriate requirement of State law.” Id. § 1341(d); see also 40 C.F.R. § 22 121.2(a)(4) (authorizing the state to include “any conditions which the [state] deems 23 necessary or desirable with respect to the discharge of the activity”). 24 The Corps’ maintenance dredging operations are subject to the CWA, including 25 section 401. 33 U.S.C. §§ 1344(t),1323. The CWA expressly mandates that federal 26 agencies “engaged in any activity resulting, or which may result, in the discharge or runoff 27 of pollutants . . . comply with, all Federal, State, interstate, and local requirements, 1 administrative authority, and process and sanctions respecting the control and abatement of 2 water pollution.” Id. § 1323(a). 3 Additionally, CWA section 404 requires a person to obtain a permit from the Corps 4 for any discharge of dredged sediment into navigable waters. 33 U.S.C. § 1344(a), (d). 5 Pursuant to section 404(b)(1), the EPA has adopted criteria for CWA section 404 permits 6 to protect aquatic fish, wildlife, and ecosystems and ensure compliance with state Water 7 Quality Standards. See generally 40 C.F.R. Part 230 (404(b)(1) Guidelines); 40 C.F.R. §§ 8 230.10(b), (c), 230.12(a)(3). When the Corps is the discharger, it does not need to obtain a 9 section 404 permit from itself; however, the Corps is required to comply with “all 10 applicable substantive legal requirements, including . . . application of the section 11 404(b)(1) guidelines.” 33 C.F.R. § 336.1(a). 12 Finally, the Corps has adopted regulations governing its maintenance dredging 13 operations, which require it to comply with the CZMA, CWA, and other environmental 14 laws. See generally 33 C.F.R. Parts 335-338 (CDR); see also 33 C.F.R. §§ 335.2, 335.5(a), 15 335.6(h), 336.1(a), 336.1(b)(4). The Corps’ regulations set forth its policy:

16 [T]o regulate the discharge of dredged material from its projects to assure that dredged material disposal occurs in the 17 least costly, environmentally acceptable manner, consistent 18 with engineering requirements established for the project . . . [t]he least costly alternative, consistent with sound engineering 19 practices and selected through the 404(b)(1) guidelines or 20 ocean disposal criteria, will be designated the Federal standard for the proposed project. 21 22 Id. § 336.1(c)(1) (emphases added); see also id. § 335.4 (dredging will be done “in the 23 least costly manner . . . consistent with engineering and environmental requirements”). The 24 Corps refers to this as the “Federal Standard” dredging alternative. See id. § 335.7 25 (definition of the “Federal Standard”). 26 27 1 IV. CHRONOLOGY 2 In 1969 BCDC prepared, and the California Legislature adopted, the San Francisco 3 Bay Plan. In 1977, the Bay Plan was approved in its entirety by OCM as part of 4 California’s CZMP. Similarly, the EPA has approved the Water Quality Standards 5 promulgated by the Regional Board as part of the “Water Quality Control Plan for the San 6 Francisco Bay Basin.” 7 In 2001, the Corps, EPA, BCDC, the Regional Board, and the State Water 8 Resources Control Board collectively adopted the Long-Term Management Strategy for 9 the Placement of Dredged Material in the San Francisco Bay Region (“the LTMS”). The 10 primary intent was to move away from the historical practice of dumping approximately 11 80% of dredged material back into the Bay itself. The LTMS identified four overarching 12 objectives: (1) to maintain navigation channels in an economically and environmentally 13 sound manner and eliminate unnecessary dredging activities in the Bay and Oakland 14 Estuary; (2) to conduct dredged material disposal in the most environmentally sound 15 manner; (3) to maximize beneficial use of dredged material as a resource; and (4) to 16 develop a coordinated and cooperative permitting framework for dredging operations and 17 dredged material disposal in the Bay. 18 The LTMS set a long term goal that no more than 20% of dredged sediment would 19 be disposed in the Bay, no more than 40% in the ocean, and not less than 40% would be 20 applied to beneficial reuse. These goals were largely met during the first twelve years of 21 the program, according to a report by the agencies in 2013, and the report recommended 22 they continue to be followed. 23 In 2015 the Corps and the Regional Board published a Final Environmental 24 Assessment/Environmental Impact Report on the Corps’ plans for maintenance dredging 25 between 2015 and 2024. Because of concerns about the Delta smelt (a federally-listed 26 endangered fish) and the Longfin smelt (a California-listed threatened fish), the EA/EIR 27 included two “Reduced Hydraulic Dredge Alternatives,” which would require the Corps to 1 use clamshell dredges rather than hopper dredges in certain channels, while still annually 2 dredging. Under Reduced Hydraulic Dredge Alternative 1, starting in fiscal year 2017, the 3 Corps could use a hydraulic dredge only in the main shipping channel and either the 4 Richmond Outer Harbor or the Pinole Shoal Channel; the Corps would purchase mitigation 5 credits for the take of imperiled fish in the hydraulically dredged channel and would use a 6 mechanical dredge in the other channel. 7 Under Reduced Hydraulic Dredge Alternative 2 starting in fiscal year 2017, the 8 Corps could use a hydraulic dredge only in the main shipping channel. The Regional 9 Board found that the Corps could feasibly implement either alternative, as each provided a 10 two-year phase-in period to allow the Corps to budget for the change in equipment use. 11 The decisions at issue in this lawsuit arose out of a consistency determination (“the 12 CD”) the Corps issued in the spring of 2015 regarding its dredging plans for 2015-2017. 13 While the CD identified a number of existing and future beneficial reuse sites, it 14 designated only in-Bay disposal sites and the San Francisco Deep Ocean Disposal Site as 15 the Federal Standard placement sites. The CD proposed to dispose up to 48% of the 16 dredged sediment in the Bay and up to 55% in the ocean, and did not commit to beneficial 17 reuse of any dredged sediment. The CD also did not commit to use clamshell dredges in 18 any navigation channel. 19 In June of 2015, BCDC issued a conditional concurrence with the CD, in the form 20 of a proposed Letter of Agreement (“LOA”). The conditions imposed by BCDC included: 21

22 1) Beginning in 2017, the Corps must comply with, inter alia, Bay Plan Dredging Policies 1 and 5 to maximize the beneficial 23 reuse of dredged sediment as a resource by meeting the LTMS 24 goals that a minimum of 40% of the dredged material be beneficially reused and that a maximum of 20% of dredged 25 material be disposed of in the Bay (the “Beneficial Reuse 26 Condition”);

27 2) Beginning in federal fiscal year 2017, the Corps must use a maximum of one hydraulic dredge in either the Richmond 1 Outer Harbor or Pinole Shoal Channel in order to protect 2 Delta smelt and longfin smelt and their habitat (“the Reduced Hydraulic Dredge Condition”); 3 3) . . . the Corps must develop and implement a strategy to 4 obtain additional funds to implement the Beneficial Reuse and 5 Reduced Hydraulic Dredge Conditions . . . .

6 7 The Regional Board also signed off on a Water Quality Certification for the Corps’ 8 plans, with a condition. “Provision 10” of the certification required the Corps to implement 9 either of the two Reduced Hydraulic Dredge Alternatives from the EA/EIR. 10 Plaintiffs argue that Lt. Colonel Morrow, Commander for the Corps’ San Francisco 11 District, had previously expressed general support for the staff recommendation that 12 BCDC ultimately adopted. BCDC contends Lt. Colonel Morrow stated a commitment to 13 “working through the process” with BCDC by seeking additional funding, if necessary, to 14 satisfy the conditions BCDC sought to impose. The Corp insists that it was plainly 15 expressing its reservations about the conditions all along, and that the state agencies 16 understood that. On June 23, 2015, Lt. Colonel Morrow signed the LOA on behalf of the 17 Corps. 18 19 V. The Challenged actions 20 A. November 10, 2015 letter to BCDC 21 In a letter dated November 10, 2015, the Corps rescinded its agreement to the LOA 22 and objected to the conditions BCDC was imposing, stating they “exceed the constraints 23 established by the federal standard.” The Corps argued that because it allegedly would cost 24 more to comply with the conditions, it is legally prohibited from doing so, under its own 25 regulations requiring it to adopt the “least costly” alternative. The Corps further asserted it 26 is not authorized to seek “special funding” for state conditions that merely implement “a 27 state’s own local preference” and that it would only comply with the conditions if the State 1 or another entity covered the additional cost. 2 3 B. November 10, 2015 letter to the Regional Board 4 In a similar letter of the same date, the Corps informed the Regional Board it could 5 not legally comply with Provision 10, and stating if that condition were not removed, it 6 would have to defer dredging. 7 8 C. January 2017 adoption of “Course of Action #2” 9 The parties communicated further in early 2016, but remained at an impasse. The 10 Corps then took under consideration four possible courses of action (COAs): 11 12 COA #1: Status quo dredging and placement. 13 COA #2: Dredge in accordance with the Water Quality Certification including 14 Provision 10. 15 COA #3: Dredge in accordance with the Water Quality Certification and the LOA. 16 COA #4: Defer all maintenance dredging of San Francisco Bay Channels. 17 18 The Corps ultimately concluded in January of 2017 that it would adopt COA #2. 19 Under COA #2, the Corps will dredge the Richmond Outer Harbor and the Pinole Shoal 20 Channels in alternating years, using a hydraulic hopper dredge. 21 22 VI. DISCUSSION 23 A. Final action 24 To be reviewable under the APA, a challenged decision or act must constitute “final 25 agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. 26 The familiar two-prong test of Bennett v. Spear, 520 U.S. 154 (1997) provides that to be 27 “final,” the action (1) “must mark the ‘consummation’ of the agency’s decision-making 1 process” and not be “merely tentative or interlocutory,” and (2) “must be one by which 2 ‘rights or obligations have been determined,’ or from which ‘legal consequences will 3 flow.”’ Id. at 178 (citations omitted). 4 BCDC insists the November 2015 letters meet this test because, the Corps had 5 “definitively determined that the State Conditions ‘exceed the constraints established by 6 the federal standard’ because they were not the ‘least costly, environmentally acceptable’ 7 alternative.” BCDC points out that in subsequent correspondence, the Corps never 8 wavered from the position that it lacked any discretion to comply with the conditions. 9 The Corps, in turn, contends the ongoing negotiations after November 2015 shows 10 that BCDC itself did not then believe that the Corps had made any “final” decision. The 11 Corps also argues the letters merely set out what its view of the law was, and therefore 12 fails the second Bennet prong because they do not impose any legal obligations, deny a 13 right, or fix a legal relationship. 14 Although the question is close, the November 2015 letters do not represent final 15 agency action subject to APA review. If that conclusion is erroneous, however, it would 16 not alter the outcome, because BCDC has acknowledged that,

17 [e]ven if the Court were to determine that the [November 2015 18 letters] are not final agency actions, all of the claims and issues 19 alleged in Plaintiffs’ complaints also are implicated by COA #2, because that decision applies the Corps’ final legal position 20 as articulated in the [November 2015 letters]. 21 22 There is no dispute that the Corps’ adoption of COA #2 in January 2017 is a final 23 action subject to judicial review.2 24

25 2 While the parties devote substantial argument to various jurisdictional issues, in the end they agree there is jurisdiction to hear plaintiffs’ claims under the APA, and that those are 26 the only claims presented in these cross-motions. 27 1 B. Validity of COA # 2 2 As noted above, BCDC sought to impose three basic conditions on the Corps’ 3 dredging operations in the Richmond Outer Harbor and the Pinole Shoal Channel—the 4 Beneficial Reuse Condition, the Reduced Hydraulic Dredge Condition, and the 5 requirement that the Corps seek additional funding. The third condition derives from, and 6 is intertwined with, the second. 7 8 1. Beneficial reuse 9 COA # 2 does not address beneficial reuse. Although the Corps discusses at some 10 length the efforts it has gone to in the past to support beneficial reuse, and its commitment 11 to implement beneficial reuse whenever it is not more costly, its basic position is that the 12 targets in the LTMS are mere policy goals, not binding enforceable state standards that 13 have been incorporated into federal law. The Corps focuses on “Bay Plan Policy 1” which 14 relates to limitations on in-Bay disposal. BCDC responds that “Bay Plan Policy 5” is more 15 pertinent, as it expressly states “dredging projects should maximize the use of dredged 16 materials as a resource.” Regardless of which particular statement more directly addresses 17 the issue, however, there has been no showing that these generalized policy statements 18 embody requirements that may be enforced against the Corps through the regulatory 19 framework discussed above. Accordingly, the Corps was not legally obligated to accept the 20 Beneficial Reuse Condition. 21 22 2. Reduced Hydraulic Dredging 23 The heart of the parties’ dispute lies here. As set out above, BCDC sought to 24 impose a condition on the Corps’ dredging activities that beginning in 2017, and each year 25 thereafter, “the Corps must use a maximum of one hydraulic dredge in either the 26 Richmond Outer Harbor or Pinole Shoal Channel.” COA #2 meets the letter of that 27 requirement, because the Corps is in fact using a hydraulic dredge in only one channel 1 each year. 2 BCDC, therefore, is left to argue that the Corps should not be permitted to use a 3 hydraulic dredge in either of the channels each year, unless it also uses a clamshell dredge 4 in the other channel in the same year. BCDC argues that failing to dredge both channels 5 annually may lead to some economic damages if larger ships are unable to use one or both 6 the channels, and the Corps has acknowledged that possibility. BCDC has not shown, 7 however, how its authority under the statutory scheme to regulate the Corps’ activities in 8 light of environmental concerns would extend to compelling the Corps to address 9 commercial interests.3 10 To support the argument that it can effectively force the Corps to perform additional 11 dredging even where the Corps has agreed to follow the limits the state agency imposed, 12 BCDC relies on Ohio v. United States Army Corps of Engineers, 259 F. Supp. 3d 732 13 (N.D. Ohio 2017). The Ohio case involved the Corps’ dredging responsibilities for the 14 Cleveland Harbor Federal Navigational Channel, which consists of three sections of water: 15 5.5 miles of shoreline enclosed by breakwater structures; 5.8 miles of the lower Cuyahoga 16 River; and, one additional mile known as “the Upper Channel.” Id. at 739. The Corps was 17 willing to dredge all but the Upper Channel and to dispose of the sediments in a “confined 18 disposal facility,” due to the presence of toxins in the sediments. Id. at 741-42. The Corps, 19 however, believed that sediment from the Upper Channel could safely be dumped in Lake 20 Erie, which would be more economical. Id. When the state insisted that Upper Channel 21 sediment also be placed in a confined disposal facility, the Corps responded that it simply 22 would not dredge the Upper Channel at all, unless the state paid for the additional costs. Id. 23 On the parties’ cross-motions for summary judgment, the Ohio court found that the 24

25 3 BCDC does offer some speculation that failure to dredge both channels annually could lead to 26 an increased risk of oil spills. Even if that point had been more fully developed and factually supported, it is not clear that anything in the regulatory scheme would give BCDC the ability to 27 compel the Corps to do more dredging rather than less. 1 Corps was obligated to dredge the entire Cleveland Harbor Federal Navigational Channel, 2 including the Upper Channel, and to dispose of the sediments in a confined disposal 3 facility, at federal expense. Id. at 766-67. At first blush, Ohio might seem to be closely on 4 point. The critical distinction, however, is that Corps’ obligations in that case were 5 governed, in substantial part, by 33 U.S.C. § 426o-2, which provides, in relevant part:

6 Using available funds, the Secretary shall expedite the operation and maintenance, including dredging, of the 7 navigation features of the Great Lakes and Connecting 8 Channels for the purpose of supporting commercial navigation to authorized project depths. 9 10 Prior to the summary judgment opinion in Ohio, the court had entered a preliminary 11 injunction requiring the Corps to dredge the Upper Channel. In entering the injunction, the 12 court found:

13 Congress has already approved full funding for the project 14 including a line item approval of the cost of the CDF disposal for all sediment recovered for the full six mile stretch. Under 15 the specific facts of this case, therefore, the obligation created by this statute was specifically defined by Congress through its 16 original authorization of the dredging of this particular 17 Channel, and the appropriation of all funds necessary to accomplish this task to the specifications of the State’s water 18 quality certification. 19 Ohio v. U.S. Army Corps of Engineers, 2015 WL 2341114, at *4 (N.D. Ohio May 12, 20 2015)(emphasis added). The eventual decision on summary judgment followed the initial 21 rationale: 22

23 Once the Corps exercised its discretion to prioritize the 2015 Cleveland Harbor Dredging Project and that project was 24 funded by Congress, the Corps was statutorily required to use all available funds to execute the project, and was required to 25 comply with State WQC conditions when disposing of the 26 dredged sediment. Because the Corps received funding to cover the full costs of that compliance, and has been directed by 27 Congress to pay for one hundred percent of the costs of such operation and maintenance projects, it unlawfully withheld 1 and/or unreasonably delayed the dredging of the Upper 2 Channel when it refused to dredge that channel unless it received non-federal funding to cover the cost of CDF 3 disposal. 4 Ohio at 766–67. 5 Here, BCDC insists that the Corps similarly may have initially had discretion in 6 determining what dredging projects it would or would not carry out, but once it 7 “prioritized” annual dredging of both the channels, it could not abandon that goal merely 8 to avoid additional expenses arising from the need to comply with conditions imposed by 9 the state agencies. Unlike the circumstances in Ohio, however, there is no indication that 10 Congress provided a “line item approval” of the full cost of complying with the state 11 conditions, or otherwise provided “funding to cover the full costs of that compliance.” 12 Thus, to whatever degree the Corps could be said to have “prioritized” annual dredging of 13 both channels by planning to do so with hydraulic dredges, the basis on which the Ohio 14 court compelled additional dredging simply is not present here. 15 Because the Corps’ plan does not violate the maximum limits on dredging imposed 16 by the state agencies, BCDC cannot prevail in this action absent a basis to force the Corps 17 to do more dredging than it has agreed to carry out. BCDC has not shown the Corps has 18 any obligation that may be enforced by BCDC through the applicable regulatory scheme. 19 Accordingly, the Corps’ motion must be granted and plaintiffs’ motion denied. 20 21 VII. ADDITIONAL MOTIONS 22 A. Motion to supplement 23 The parties previously engaged in extensive motion practice before the assigned 24 magistrate judge to settle the content of the administrative record. BCDC now moves to 25 supplement the record further with two budget documents purportedly showing that the 26 Corps had “prioritized” funding for annual dredging of both channels, which it contends 27 relates to the applicability of the Ohio case. 1 The assigned magistrate judge denied plaintiffs’ motion to supplement the record 2 with these two documents and several others, because there was no evidence that the Corps 3 considered them in reaching the decisions at issue in this case. The magistrate judge 4 specifically stated, however, that:

5 This order does not reach the issue of whether these budget documents, all of which are already in Plaintiffs’ possession, 6 can be considered as extra-record evidence under any of the 7 exceptions set forth in Lands Council [v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005)]. The question of whether evidence 8 is admissible, as opposed to whether it constitutes part of the 9 administrative record, is best addressed to Judge Seeborg in the context of a motion on the merits. 10 11 The additional documents are not properly part of the administrative record for the 12 reasons identified by the magistrate judge. Nor are they strictly admissible under any of the 13 Lands Council exceptions. Even assuming they could nonetheless properly be considered, 14 nothing in the documents compels a conclusion the Corps has a legal obligation to dredge 15 both channels annually. Accordingly, the motion to supplement is denied. 16 17 MOTION FOR LEAVE TO FILE AMICUS BRIEF 18 Western States Petroleum association seeks leave to file an amicus brief. The Corps 19 strongly objects, contending the proposed brief improperly relies on facts that are not 20 supported by evidence, and that any such evidence would be extra-record in any event. The 21 Corps contends that the remainder of brief consists of unhelpful argument. Western States 22 insists it has limited its factual assertions to matters shown in the record and that it can 23 provide a unique and useful perspective on the consequences to its industry of bi-annual 24 dredging. The brief will be deemed filed, and has been reviewed. As reflected by the 25 discussion above, however, nothing in the brief has altered the analysis. 26 27 1 VUI. SAN FRANCISCO BAYKEEPER 2 As noted above, San Francisco Baykeeper, a private environmental group has 3 || intervened as an additional plaintiff. The order permitting intervention stated: 4 Baykeeper has shown that it intends to pursue claims under the 5 Clean Water Act that go beyond the claims BCDC is pursuing, or can pursue. Although there may be substantial overlap in the 6 relief [that] Baykeeper and BCDC are respectively seeking, 7 Baykeeper has made a sufficient showing that BCDC cannot be presumed to represent its interests adequately. 8 9 At least in these cross-motions, no direct claim under the Clean Water Act is being 10 || advanced. Rather, Baykeeper and BCDC have moved for summary judgment jointly under 11 || the APA claims, making no distinctions between themselves. Accordingly, the parties are «= 12 || directed to provide a statement as to their understanding as to what, if any, claims may

< 13 || remain for disposition following this order.

IX. CONCLUSION 16 The Corps’ motion for summary judgment is granted, and the motion brought

= 17 || jointly by BCDC and Baykeeper is denied. Within 20 days of the date of this order, the 18 || parties shall file a joint statement setting out their shared or respective positions as to what 19 || remains to be decided, if anything. In the event the parties are in agreement that this order 20 || effectively disposes of the entire action, the Corps shall instead submit a proposed 21 || judgment, approved as to form by BCDC and Baykeeper. 22 23 IT IS SO ORDERED. 24 25 Dated: November 4, 2019 26 RICHARD SEEBORG United States District Judge 28 CASE No. 16-cv-05420-RS