Commission Response to Federal Court Decision in BCDC v. Corps of Engineers
In September 2016, the California Attorney General filed a lawsuit in federal court to compel the U.S. Army Corps of Engineers (Corps) to implement its San Francisco Bay operation and maintenance dredging program in a manner required by the federal Coastal Zone Management Act (CZMA). The CZMA requires the Corps’ dredging program to be consistent “to the maximum extent practicable” with the Commission’s federally-approved coastal management program, which includes the San Francisco Bay Plan. The lawsuit involves the Corps’ refusal to comply with certain conditions imposed by the Commission that require the Corps to: (1) increase beneficial reuse of dredged sediment to create and bolster marshes and wetlands, and also decrease unconfined in-Bay disposal of such sediment; and (2) reduce the use of hydraulic dredges to only one in-Bay channel per year to protect the Bay’s endangered fish species and water quality. In April 2017, the Court granted San Francisco Baykeeper’s motion to intervene in the case.
On November 4, 2018, the United States District Court issued an order denying the Commission’s and Baykeeper’s joint motion for summary judgment and granting the Corps’ motion for summary judgment.
In brief, on the condition imposed by the Commission (and by the San Francisco Bay Regional Water Quality Control Board) requiring the Corps to reduce hydraulic dredging to protect endangered fish species and water quality, the Court found that the Commission could not show that the Corps has any obligation to dredge both the Richmond Outer and Pinole Shoal Channels on an annual basis. On the condition imposed by the Commission requiring the Corps to beneficially reuse a minimum of 40% of the dredged sediment and reduce in-Bay disposal, the Court found that that the “generalized policy statements” in the Bay Plan dredging policies did not “embody requirements that may be enforced against the Corps.”
The Court’s order then directed the parties to submit a statement reflecting their respective understandings as to whether any issues remain for disposition. The parties filed their “Joint Statement Regarding Remaining Issues to Be Decided in the Case” on December 8, 2019. Among other issues the Commission and Baykeeper believe remain to be decided is the threshold question of whether the Corps’ interpretation of its Federal Standard regulation violates provisions of the: (1) Clean Water Act that require the Corps to comply with State water quality standards; and, (2) Coastal Zone Management Act and its regulations that require the Corps to fully implement State CZMA conditions, including seeking additional funding if necessary, unless the Corps is legally prohibited from doing so. In contrast, the Corps’ position is that no issues remain undecided.
The Commission anticipates that the Court will respond to the parties’ joint statement regarding remaining issues to be decided, possibly by issuing a supplemental order, prior to entry of final judgment in the District Court.
San Francisco Bay Conservation and Development Commission v. United States Army Corps of Engineers, N.D. Cal. Case No. 3:16-cv-05420-RS.