Army Corps of Engineers Must Pay for Ohio Dredging Project

CLEVELAND (CN) – A federal judge held the Army Corps of Engineers financially responsible for the entire Cleveland Harbor dredging project after it balked at being required to dump sediment in a confined disposal facility.

The Corps was sued by Ohio after it refused to dredge a portion of the harbor – a one-mile stretch known as the Upper Channel – citing cost concerns related to sediment relocation.

Dredging is the removal of sediment and other material accumulated at the bottom of bodies of water for the purpose of maintaining navigation channels.

While it agreed to dispose of the majority of the harbor sediment in a confined disposal facility, or CDF, the Corps “decided that open-lake placement of the sediment from the entire Upper Channel would be appropriate and would not impact the environment,” according to court documents.

Ohio disagreed, citing the presence of carcinogens, specifically polychlorinated biphenyls, or PCBs, in the Upper Channel sediment.

The Corps did not dispute the presence of PCBs, but refused to dredge the Upper Channel unless the state found a way to pay for it. According to the Army, disposal of the sediment in a CDF would cost an additional $1.2 million over the life of the project.

Ohio’s lawsuit was filed in April 2015, and U.S. District Court Judge Donald C. Nugent granted the state’s request for an injunction a month later.

The injunction required the Army Corps of Engineers to continue dredging and set a briefing schedule to determine which party would bear the cost of the work.

The Corps has argued that its intent to dispose of the sediment in open water met the federal standard required by the Clean Water Act and that the state did not have the authority to impose additional requirements.

Judge Nugent disagreed Friday and wrote in a 52-page opinion that when Congress amended the CWA in 1977, it “verified its intent to make the state requirements, as determined by the state, the ultimate authority on water quality standards.”

Nugent said that while the Corps’ “federal standard appears to be a rational and prudent regulation meant to curb excess spending of taxpayer money by ensuring the least costly alternative,” its interpretation of the standard “conflicts with … requirements which relate to the control and abatement of water pollution.”

The judge scolded the Corps for its untenable position that “it has ‘independent authority’ to determine whether a proposed discharged would comply with the state’s … requirements.”

“Congress did not authorize agencies to override a state’s interpretation of its own standards, or to seek contribution from other entities for the compliance costs,” Nugent wrote.

The Corps also argued that it cannot be forced to spend money to satisfy conditions it disagrees with, another point skewered by Judge Nugent.

“There is … no statutory authority for such a claim, and the Corps’ own regulations do not provide any basis for claiming such a right. While there may be an argument that the Corps cannot be forced to spend money it does not have, the idea that it does not have [sic] pay the costs of complying with state water quality standards, as interpreted by the state, when Congress has allocated sufficient funds for it to do so, runs contrary to both Congressional directives and Congressional intent,” the judge wrote.

Nugent noted that the waterway is “becoming dangerously close to being commercially unnavigable,” and reprimanded the Corps for its decision to abandon the project “simply because it did not want to pay the costs.”

Ohio Attorney General Mike DeWine released a statement on Friday praising the decision.

“This is a great outcome for the State of Ohio,” he said. “It reaffirms that the Corps is responsible to pay for the 2015 Cleveland Harbor Dredging Project. Dredging the Cleveland Harbor is critical to Ohio’s economy and properly disposing of the dredged material is critical to the environment. We’re pleased the Judge agreed with our position, and we will continue to advocate tirelessly for the people of Ohio and for the health of Lake Erie.”

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