SAN FRANCISCO (CN) — A Ninth Circuit panel on Friday sided with the U.S. Army Corps of Engineers in a dispute with a California water quality board over a multiyear plan to dredge two economically vital waterways in the San Francisco Bay less frequently.
The panel upheld a lower court’s finding that a plan to dredge the Pinole Shoal and Outer Richmond Harbor channels every other year instead of annually did not violate federal laws that require compliance with state water quality standards. Both channels are frequently traversed by oil tankers and other ships vital to commerce in the region.
“We understand plaintiffs’ concerns that the Corps’ chosen course of action represents a departure from understandings the parties had in the past and may lead to problems in the future,” Senior U.S. Circuit Judge Mary Schroeder, a Jimmy Carter appointee, wrote for the unanimous panel. “Nevertheless, we must agree with the district court that the adoption of [course of action] #2 did not violate any applicable law.”
Under the Clean Water Act and Coastal Zone Management Act, federal agencies must comply with water quality standards imposed by states.
In 2015, two state agencies --- the San Francisco Bay Regional Control Board and San Francisco Bay Conservation and Development Commission (BCDC) --- rolled out new conditions aimed at protecting two species of endangered fish and reducing the amount of dredged sediment dumped in the bay.
The agencies required reduced use of hydraulic “hopper” dredging, which sucks up sediment from the seafloor like a vacuum, based on findings that it kills more endangered Delta smelt and longfin smelt than mechanical “clamshell” dredging, which acts like a bucket scooping up sediment.
The Corps says clamshell dredging costs about three times more and takes up to 10 times longer than hopper dredging. Instead of using clamshell dredging, the Corps decided in 2015 and again in 2017 to continue hopper dredging in both channels, but to do so in alternating years.
In a lawsuit filed in 2016, BCDC and intervening plaintiff San Francisco Baykeeper, a nonprofit conservation group, argued that failing to dredge both channels annually could block larger ships from using the waterways, cause economic harm and potentially lead to more accidents and oil spills.
A federal judge ruled against California in 2019, finding the Corps’ plan to dredge less often complied with the state agencies’ requirement that it reduce the use of hydraulic dredging that was found to inadvertently harm endangered fish.
In arguments before the Ninth Circuit in June, a California deputy attorney general argued the Corps based its decision on a misinterpretation of an internal policy directing it to choose the least costly dredging alternative. The state argued that policy only applies when the available options comply with the state’s water quality conditions.
In a 28-page opinion issued Friday, the panel concluded the Corps did not violate any laws when it chose the cheapest option because that alternative complied with the state’s requirements — to reduce the frequency of hydraulic dredging.
The panel refused to consider that the Corps had to perform emergency dredging on the Pinole Shoal channel in 2020, finding that development irrelevant to the question of whether the Corps legally adopted its alternating-year dredging plan in 2017.
And the panel found the Corps did not need to comply with another condition limiting the amount of dredged material that can be dumped in the bay to 20% and requiring at least 40% of dredged sediment go to beneficial reuse, such as restoring wetlands and fish habitat sites. The panel found that was not an enforceable policy because it did not come from a plan approved by the National Oceanic and Atmospheric Administration.
“Plaintiffs have not shown any textual or practical connection between the 20/40 Disposal Condition and the Bay Plan Policies that they rely upon,” Schroeder wrote for the panel.
California Attorney General Rob Bonta’s office deferred comment to the San Francisco Bay Conservation and Development Commission.
The commission’s general counsel Greg Scharff said by email Friday that the commission is disappointed in the appellate decision. He called it a major loss for Bay Area citizens, endangered species and efforts to combat climate change.
“The San Francisco U.S. Army Corps of Engineers is a highly valued partner in maintaining and protecting the bay,” Scharff said. “It is unfortunate that the bureaucrats in Washington at the U.S. Army Corps don’t understand the importance of the policies of beneficial reuse to combat climate change and protect our environment. Their narrow interpretation of the federal standard causes them to spend as little money as possible when spending just a little more would protect endangered species and help us combat the effects of climate change.”
A U.S. Army Corps of Engineers spokesperson deferred comment to the Justice Department, which did not immediately respond to a request for comment.
A spokesperson for intervening plaintiff San Francisco Baykeeper did not immediately respond to an email and phone call requesting comment Friday.
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