SAN FRANCISCO (CN) --- A state’s power to regulate how the federal government maintains economically vital navigation channels is limited, a Justice Department lawyer told a Ninth Circuit panel Monday, and urged the court to reject California's challenge to a dredging plan for the San Francisco Bay.
“The state’s authority is not unbridled, and these statutes do not give the state a blank check to direct the Corps to perform maintenance dredging,” U.S. Justice Department lawyer Ellen Durkee said.
Durkee represents the U.S. Army Corps of Engineers, which decided in 2015 and again in 2017 to dredge the Pinole Shoal and Outer Richmond Harbor channels less often to cut the costs of complying with California’s stricter water quality standards. Both channels are frequently traversed by oil tankers and other ships vital to commerce in the region.
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 --- rolled out new conditions aimed at protecting two species of endangered fish and reducing the amount of dredged sediment dumped in the bay.
The state agencies directed the Corps to reduce or eliminate its use of hydraulic “hopper” dredging, which sucks up sediment from the seafloor like a vacuum. A 2013 study found hydraulic dredging killed more endangered delta smelt and longfin smelt than mechanical “clamshell” dredging, which acts more 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. The Corps decided to keep using the less expensive method of hydraulic dredging for both channels but to do so every other year instead of annually to reduce the impact on endangered species.
The state and intervening plaintiff San Francisco Baykeeper, a nonprofit conservation group, sued the Corps in 2016, claiming the dredging plan would block larger ships from using the waterway, cause economic harm and increase the risk of oil spills and accidents from collisions.
In November 2019, U.S. District Judge Richard Seeborg jettisoned California’s lawsuit, finding no state or federal law requires the Corps to “address commercial interests” when it decides how to use its limited resources to comply with a state’s environmental standards.
Arguing before a Ninth Circuit panel Monday, California Deputy Attorney General Tara Mueller said Judge Seeborg got it wrong because the Corps improperly based its decision on a misinterpretation of an internal policy directing it to choose the least costly dredging alternative.
Mueller said that policy only applies when the available options comply with the state’s water quality conditions.
U.S. Circuit Judge Milan Smith, a George W. Bush appointee, was skeptical about the state’s power to make the Corps use a more expensive method for dredging the bay, even if it is more beneficial to the environment.
“There’s little question that you can require them to do hydraulic dredging, but where is the requirement to do the more costly, more environmentally sensitive dredging,” Smith asked.
Mueller replied that requirement was set in state’s 2015 conditions for approving the Corps’ dredging plan.
U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee, challenged California’s contention that the Corps did not fully consider environmental and navigability concerns when it applied its cost-sensitive standard to choose a less expensive dredging plan.
“It’s sort of a commonsense standard as I see it,” VanDyke said. “’We’re going to do it as cheaply as we can do it that also takes into [account] environmental considerations,’ so I don’t see how it’s wrong for the federal government to have pointed to that.”
Durkee told the panel that the Corps is doing exactly what the state asked it to do --- reducing the use of the more environmentally detrimental hydraulic “hopper” dredging by doing it every other year instead of annually.
“And you’re really saying be careful what you ask for,” Senior U.S. Circuit Judge Mary Schroeder, a Jimmy Carter appointee, said.
“Be careful what you ask for because you may get it, and they got it,” Durkee replied. “Now they’re concerned they may not be getting as much maintenance as they wanted. But that’s not the problem with the fish that this whole thing was based on.”
Last year, the Corps did emergency hydraulic dredging in the Pinole Shoal channel. Both sides argued the emergency dredging work supports their positions. Mueller said it shows the Corps was right when it previously stated, before deciding to dredge in alternate years, that “not dredging these channels annually was going to seriously impair navigation and potentially create a risk of oil spill and other things.”
Durkee said it shows the Corps is “constantly monitoring” the channels and can react immediately when a problem arises.
California also claims the Corps is refusing to comply with a condition that limits the amount of dredged material that can be dumped in the bay to 20% and requires at least 40% of dredged sediment go to beneficial reuse, such as restoring wetlands and fish habitat sites.
The Corps says it is not required to comply with that condition because it is merely “a goal created by management agencies” and not an enforceable policy.
“The Corps is not complying with either condition in this case,” Mueller told the panel.
After about 45 minutes of debate, the panel took the arguments under submission.Follow @NicholasIovino
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