DONALD C. NUGENT, United States District Judge.
This case is before the Court on the parties' Cross Motions for Summary Judgment. (ECF # 101, 104). Plaintiff, State of Ohio and Intervening Plaintiff, Cleveland-Cuyahoga County Port Authority (collectively
Defendants, United States Army Corps of Engineers, John M. McHugh, Jo-Ellen Darcy, Thomas P. Bostick, Richard G. Kaiser, and Karl D. Jansen ("Defendant")
The United States Army Corps of Engineers ("the Corps") is an agency of the federal government that is supposed to "provide[ ] safe, reliable, efficient, and environmentally sustainable waterborne transportation systems (channels, harbors, and waterways) for movement of commerce, national security needs, and recreation."
Dredging is necessary to maintain the depth of the waterways and allow sufficient clearance for large cargo ships to navigate along the Cuyahoga River in an area known as the Cleveland Harbor Federal Navigational Channel ("Cleveland Harbor"). The Cleveland Harbor consists of three sections of water: 5.5 miles of shoreline enclosed by breakwater structures; 5.8 miles of the lower Cuyahoga River; and, 1 mile of the Old River. (ECF # 13-2, p. 2). The Old River is also known as the Cuyahoga Navigational Channel ("the Upper Channel"), and is sometimes referred to by the parties as the "sixth mile."
Several industrial facilities are served by the commercial ships traversing the Cleveland Harbor. One such facility is ArcelorMittal Cleveland, which is one of the largest and most productive steel mills in the world. (ECF 13-31, ¶ 5).
The importance of dredging this section of the Cleveland Harbor, and the severe economic consequences that would result if dredging were not routinely accomplished have been recognized by the Corps in multiple written documents. (AR0004592; AR0005054; AR-SUPP0101835 (April 2014 Letter from Corps District Commander Owen J. Beaudoin); AR-SUPP0128557-58 (March 2014 Corps Issue paper)).
(AR-SUPP0110077: Corps' Application for 401 Permit).
Congress has provided the Corps with authorization and funding to dredge the Cleveland Harbor annually since the CWA was enacted approximately forty years ago. (AR0004089; ECF # 104-1 at PageID 9481; ECF # 101-1 at PageID 9372). Again in 2015, Congress authorized the Corps to dredge the Cleveland Harbor and allocated funds for the dredging and disposal of sediment and other dredging materials ("sediment"). The Congressional allocation for 2015 anticipated disposing of the sediment in a confined disposal facility ("CDF").
In preparation for the 2015 dredging project, the Corps applied for an Ohio water quality certification ("WQC") pursuant to Section 401 of the CWA, 33 U.S.C. §§ 1341. This certification is required for projects that could impact State water quality, including through the disposal of dredged sediment. (ECF # 13, p. 17). During the application process, the Corps performed an analysis of the sediment in various sections of the Cleveland Harbor using various testing methods. (AR0003618-19; AR0003629; AR0000065, 75, 137; AR0000608-09). The Corps does not dispute that carcinogenic toxins — specifically polychlorinated biphenyls ("PCBs") — are present in the sediment from the Upper Channel. In fact, during its evaluation process, it found that the PCB levels in the sediment were of concern and merited "investigation through bioaccumulation testing."
Using the results of the sediment analysis and considering the cost of various sediment disposal methods, the Corps calculated what it calls the "Federal Standard" for sediment disposal from the Cleveland Harbor. The Federal Standard is supposed to identify "the dredged material disposal alternatives ... which represents the least costly alternatives consistent with sound engineering practices, which meet the environmental standards established by the Section 404(b)(1) evaluation process or ocean dumping criteria." 33 C.F.R. § 335.7.
The Corps concluded that sediment dredged from most of the Cleveland Harbor should be disposed of in a CDF. However, the Corps decided that open-lake placement of the sediment from the entire Upper Channel would be appropriate and would not impact the environment "in light of existing PCB contamination and bioaccumulation levels at the proposed disposal site." (ECF # 104-1, at PageID 9478; AR0003639; see also, AR0005050-41, 5080, 5088, 5295). Defendant estimated that open-lake placement of this portion of the Cleveland Harbor sediment was the least costly alternative, and would save the Corps approximately $1,283,300 over the cost of CDF disposal. (ECF # 25).
On March 27, 2015, the Director of the OEPA wrote to the Assistant Secretary of the Army for Civil Works requesting that she "exercise [her] discretion ... pursuant to [her] authority under 33 C.F.R. § 337.2(b)(3) and 33 C.F.R. § 337.8 [to] agree [ ] to place the material in ... [CDFs] at full federal expense." (AR-SUPP0437660). The Assistant Secretary replied that she was "not authorized under 33 C.F.R. § 337.2 to use Federal funds to place material in a manner that is inconsistent with the Federal Standard determination." (AR-SUPP000001).
On March 31, 2015, the State approved the water quality certification request for dredging the entire Cleveland Harbor, but included a condition requiring that all dredged materials from the entire length of the Cleveland Harbor, including the sediment from the Upper Channel, be disposed of in a CDF. The OEPA and the Ohio Department of Natural Resources (collectively "the State") declined to certify any discharge into the open waters of Lake Erie based on its determination that
On April 9, 2015, the Assistant Secretary of the Army sent a letter to the Director of the OEPA stating that based on a "comprehensive technical evaluation focused on the upper Cuyahoga River navigation channel sediments, in accordance with the CWA Section 404(b)(1) Guidelines and formal guidance jointly developed by the Corps and U.S. Environmental Protection Agency" and using the "dredged material placement method that represents the least costly alternative consistent with sound engineering practices and meets the environmental standards established by the CWA Section 404(b)(1) evaluation process," the Corps determined that open-lake placement was appropriate for the "dredged material from the uppermost mile of the Federal navigation channel (80% of the total volume)." (AR-SUPP0000002). The letter went on to say that a "non-Federal partner would be required to pay the costs in excess of the Federal standard and any contractor claims, and would also pay for or provide CDF [confined disposal facility] capacity in the future (without a tipping fee equivalent to that used in the Federal CDF ... In the absence of a non-Federal cost sharing partner, and assuming a CWA section 401 Water Quality Certification that does not authorize open lake placement, the Corps will dredge the ... lower channel ... [but] would be unable to dredge the upper channel in a manner consistent with the Federal standard." The Corps gave the State until May 25, 2015 to provide an executed agreement and deliver funds from a non-Federal partner or forfeit dredging of the Upper Channel. (AR-SUPP0000002).
After unsuccessfully attempting to persuade the Corps to back off from this ultimatum, the State filed this action, along with a request for a Temporary Restraining Order and Preliminary Injunction, asking the Court to compel the Corps to dredge the Upper Channel as originally planned, and to require them to pay for the disposal of the dredged sediment in compliance with the State's WQC requirements. (ECF # 13). This Court granted
The Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq. allows persons "suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute" to obtain judicial review of that action. 5 U.S.C. § 702. The APA defines "agency action" as including "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13); see also, Norton v. S. Utah Wilderness All., 542 U.S. 55, 61-62, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). The United States Supreme Court has interpreted "agency action" as "cover[ing] comprehensively every manner in which an agency may exercise its power." Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 478, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001).
Agency action is reviewable if made so by statute, or it is a "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 703. In general, a final agency action under the APA must "mark the consummation of the agency's decisionmaking process," and "must be one by which rights or obligations have been determined, or from which legal consequences will flow." U.S. Army Corps of Engineers v. Hawkes Co., Inc., 578 U.S. ___, 136 S.Ct. 1807, 195 L.Ed.2d 77 (2016)(decided May 31, 2016)(quoting Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)).
Judicial review of agency actions is limited only to the extent that "(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(1) and (2); Diebold v. United States, 947 F.2d 787 (6th Cir. 1991). The "committed to agency action" exception has been held to be "a narrow one." Heckler v. Chaney, 470 U.S. 821, 838, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). Agency action has been held to be committed to agency discretion generally only where there is "no law to apply." Duncan v. Muzyn, 833 F.3d 567, 577 (6th Cir. 2016), quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see also, Heckler, 470 U.S. at 830, 105 S.Ct. 1649 (actions committed to agency discretion when the statute is "drawn in such broad terms that in a given case there is no law to apply"). Judicial review requires "standards, definitions, or other grants of power [that] deny or require action in given situations or confine an agency within limits as required by the Constitution." S. Doc. No. 248, 79th Cong., 2d Sess. 212, at 275 (1946). An agency's decision cannot prevail, however, if it violates
The APA requires reviewing courts to
5 U.S.C. § 706. In order to compel agency action under 5 U.S.C. § 706(1), a court must find that there is some discrete action that the agency was required to take, which it withheld or unreasonably delayed. See, Norton, 542 U.S. at 63-64, 124 S.Ct. 2373.
Although a request for review of a federal agency action is generally brought to the court on cross-motions for summary judgment, courts conducting judicial review under the APA do not follow the standard set forth in Fed. R. Civ. P. 56. Instead, their standard of review is set by the terms of the APA. When conducting judicial review under the APA courts do not ask whether the facts are undisputed, but rather, "whether as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Ohio Valley Env'tl. Coal. v. Hurst, 604 F.Supp.2d 860, 879 (S.D. W. Va. 2009), citing Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006).
Plaintiff asks the Court to review several agency conclusions, and to overturn the Corps' decision concluding that dredged material from the Upper Channel is suitable for open-lake placement. Plaintiff also seeks to invalidate the Corps' decision to defer dredging of the Upper Channel absent authorization for open-lake placement of the dredged sediment or receipt of funding contributions from a non-federal source. Plaintiff seeks various forms of relief, including an Order that requires the Corps to dredge the Upper Channel and pay for disposal of the sediment in a CDF. Plaintiff claims that Defendant is bound by law to follow the WQC requirements of the State and to pay for associated costs, and argues that even if the Corps has the authority to override the States' WQC determination, the conclusion that open-lake placement was environmentally acceptable was substantively and procedurally flawed, and violated the Corps' own regulations.
Defendant, does not challenge the State's authority to prohibit it from depositing dredged material into Lake Erie. It says that it has no intention of violating the State's WQC conditions or the Coastal Zone Management Act by placing the dredged sediment in Lake Erie, (ECF
By focusing almost solely on the discretion it has to prioritize projects within the scope if its authorizing statute, 33 U.S.C. § 426o-2, the Corps has attempted to limit the scope of the Court's review. The Corps' discretion to prioritize projects under 33 U.S.C. § 426o-2 is not being challenged, however, so the Court's deference to this discretion does not limit the scope of its review in this case. There is no dispute that the Corps exercised this discretion by prioritizing the dredging of the Cleveland Harbor over other potential operational and maintenance projects within its purview, and the Corps has never argued that the Cleveland Harbor would not have been prioritized or funded for dredging if the cost of CDF disposal for the Upper Channel's dredged materials had been known or considered.
The real dispute is whether the Corps, once it had exercised this discretion, had the legal authority to refrain from dredging the Upper Channel simply because it disagreed with the State's application of Ohio's water quality standards. This question requires a review of several of the Corps' determinations, including whether the Federal Standard could override the State's determination of what alternatives would satisfy the requirements of the CWA; whether it properly determined the Federal Standard; whether it had a legal obligation to pay the costs of compliance with the State's WQC conditions; and, whether it was required to proceed with dredging once Congress authorized and provided funding for the Project.
There were several reviewable Corps' decisions which led it to the ultimate decision to refrain from dredging the Upper Channel. If the Corps lacked statutory authority to make these determinations, or if these decisions were arbitrary, capricious, or otherwise not in accordance with the law, neither they, nor the final decision they precipitated can be allowed to stand. 5 U.S.C. § 706(2)(A) and (C). Further, if these decisions caused the Corps to unlawfully withhold or unreasonably delay an action it was required to take, this Court is required under the APA to compel the Corps to act. 5 U.S.C. § 706(1). An agency's decision cannot prevail
The parties agree that the dredging operations for the operation and maintenance of navigational features of the Great Lakes and Connecting Channels are duties that are delegated to the Army Corps of Engineers by Congress through the Water Resources Development Act of 2007 ("WRDA"). Specifically, 33 U.S.C. § 426o-2 requires that the Corps, "[u]sing available funds ... shall expedite the operation and maintenance including dredging of the navigation features of the Great Lakes and Connecting Channels for purposes of supporting commercial navigation to authorized project depths."
Defendant argues that because this provision does not create a specific obligation to dredge any particular area, in any particular year, it has full discretion to prioritize and optimize the limited federal funding available for the many federal navigational features of the Great Lakes region. (ECF # 115 at 14).
Agency action has been held to be committed to agency discretion generally only where there is "no law to apply." Duncan v. Muzyn, 833 F.3d 567, 577 (6th Cir. 2016), quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see also, Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714
Disposing of sediment is an unavoidable consequence of performing operation and maintenance obligations under the statute, and it is a highly regulated activity subject to a number of statutes, state laws, and other agency regulations. Much of this body of law comes in the form in Congressional directives set forth in federal statutes. In addition to fulfilling the obligations of the authorizing statute, 33 U.S.C. § 426o-2, the Corps is required by statute to comply with all federal, state, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution, 33 U.S.C. § 1323(a), and to comply with both substantive and procedural state or interstate requirements aimed at controlling the discharge of dredged or fill material into navigable waters. 33 U.S.C. § 1344(t). In addition, agencies are subject to the requirements of the Coastal Zone Management Act ("CZMA"), 16 U.S.C. § 1453, and are required to obtain a certification from the state in which any discharge will originate. 33 U.S.C. § 1341(a)(1). There are also federal statutes that outline what operation and maintenance costs, and compliance costs the Corps is responsible for funding. 33 U.S.C. § 2211. Not only is the Corps' discretion limited by these federal statutes, but it is also bound to comply with state environmental laws and certification decisions that are given federal force through the CWA and other federal environmental statutes.
In addition, there are applicable agency regulations dictating the means and methods by which the agency is to make decisions, regulations defining the deference to be afforded state environmental determinations, regulations setting forth how compliance costs above and beyond the amount
On its face, the Corps' Federal Standard appears to be a rational and prudent regulation meant to curb excess spending of tax-payer money
Essential to the Corps' position throughout this litigation is its belief that the agency has the final authority to determine whether its proposed sediment disposal alternative satisfies the requirements in Section 404(b)(1) of the CWA. The Corps has asserted that it has "independent authority" under its self-created regulations to determine whether a proposed discharge would comply with state water quality certification requirements, thereby satisfying the U.S. EPA's 404(b)(1) regulations.
Section 404(b)(1) requires compliance with state water quality standards and the CWA requires any applicant for a federal license or permit to conduct an activity which may result in any discharge into navigable waters, to provide to the licensing agency a certification from the state in which the discharge will originate. 33 U.S.C. § 1341(a)(1). A state's certification process, once approved, is adopted by Congress through 33 U.S.C. § 1313. This Court has previously recognized that "[t]he legislative purpose of the certification mechanism ... is to assure that Federal licensing or permitting agencies cannot override State water quality requirements."
In discussions surrounding the 1977 amendment to the CWA, Congress verified its intent to make the state requirements, as determined by the state, the ultimate authority on water quality standards. The Senate Committee on Environment and Public Works specifically addressed the Corps' obligation to comply with state imposed water quality certification standards as follows:
S. Rep. No. 95-370 (1977), 1977 U.S.C.C.A.N. 4326.
Congress has stated that its policy is to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution" and "to provide Federal technical services and financial aid to State and interstate agencies ... in connection with the prevention, reduction, and elimination of pollution." 33 U.S.C. § 1251(b). This is a clear indication that Congress did not intend for federal agency decisions to pre-empt state law in this area. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 S.Ct. 1447 (1947). Rather, Congress intended states to have the primary responsibility, and the final say on issues of environmental protection. The U.S. EPA has also acknowledged through its regulations that the guidelines established by a federal agency do not supplant the requirements of other state or federal agencies. See, 40 C.F.R. § 230.10.
The Corps' stated position that it has "independent authority" to determine whether a proposed discharge would comply with the State's water quality certification requirements, (ECF # 104-1 at PageID 9523-24), also contradicts the Corps' own regulations, which acknowledge that a state's certification decisions "will be considered conclusive with respect to water quality considerations." 33 C.F.R. § 320.4(d). Nonetheless, the Corps clings to the argument that it has unilateral authority, through the Federal Standard determination, to declare that its choice of disposal method meets 404(b)(1) standards.
Through the CWA, Congress gave states the right to determine their own water quality certification standards and told agencies that they must abide by these standards to the extent practicable. 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. Nor did it tell agencies that they did not have to comply with any state requirement that they deemed to be too expensive. Rather, Congress specifically and unambiguously
Congress has declared its policy to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution" and "to provide Federal technical services and financial aid to State and interstate agencies ... in connection with the prevention, reduction, and elimination of pollution." 33 U.S.C. § 1251(b). It has also explicitly stated that the purposes of the CWA are "to end the open water disposal of dredge spoil," to eliminate the discharge of pollutants into the navigable waters, and to prohibit the discharge of toxic pollutants. 33 U.S.C. § 1251(a)(1) and (3). All of the statutes, and any regulations enacted in furtherance of the CWA must, therefore, be viewed with this purpose in mind. See, La. Pub. Serv. Com. v. FCC, 476 U.S. 355, 372-73, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986).
"[T]he CWA requires federal facilities and federal activities to comply with state water quality standards." Nat'l Wildlife Fed'n v. U.S. Army Corps of Engineers, 132 F.Supp.2d 876, 889 (D. Or. 2001). Title 33 United States Code § 1323(a) specifically requires all federal agencies, including the Corps, to submit to and comply with all federal, state, interstate, and local requirements dealing with the abatement of water pollution. This section specifically states that
This is an unambiguous mandate applicable to the Corps and its actions in this case. This statute strips the Corps of any discretion to refuse to abide by State requirements aimed at controlling and eliminating water pollution.
As discussed above, in addition to this broader directive, Congress has seen fit to require all entities who wish conduct an activity which may result in any discharge into navigable waters, including federal agencies, to obtain a certification from the State in which the discharge will originate. See, 33 U.S.C. § 1341(a)(1). This requirement is mirrored, and expanded upon in the Corps' own regulations. According to 33 C.F.R. § 336.1(b)(8), the Corps is required to seek state water quality certification for dredged material disposal into waters of the United States. The Corps has adopted regulations that provide guidance for what the agency should do when a the state certification process imposes a condition that contradicts the Federal Standard. In such instances, the Corps' regulations dictate that its engineers "should cooperate to the maximum extent practicable with state agencies to prevent violations of Federally approved state water quality standards." 33 C.F.R. § 337.2(a). Even though Ohio's state water quality standards are federally approved, and the Corps had Congressional funding sufficient to satisfy the State's WQC conditions, the Corps' idea of cooperation was to simply abandon the dredging project altogether. This course of action is more avoidance than cooperation.
Agencies are bound to follow their own regulations. Meister, 623 F.3d at 371; Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004). The Corps' regulations do not direct the Corps to simply abandon a prioritized project necessary to ensure commercial navigation. Instead they anticipate and require that, "the district engineer will accommodate the state's concerns to the extent practicable." 33 C.F.R. § 337.2(a).
The U.S. EPA's regulations under Section 404(b)(1) of the CWA also preclude any discharge of dredged or fill material if there is "a practicable alternative to the proposed discharge which will have less adverse impact." See 40 C.F.R. § 230.10(a). Regardless of whether the Corps believes that the sediment at issue will have significant long-term impact on the ecology of Lake Erie, it cannot legitimately dispute that CDF disposal of sediment containing PCBs would have less adverse impact on Lake Erie than placing the contaminated sediment into the lake.
Regulations enacted by both the Corps and the U.S. EPA require the Corps to look at whether the state's proposed alternative to open-lake placement of dredged material is "practicable." 33 C.F.R. § 337.2(a), 33 C.F.R. § 337.2(a), and 40 C.F.R. § 230.10(a). The regulations define "practicable" as "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." 33 C.F.R. § 335.7; see also 40 C.F.R. § 230.10(a)(2). In this instance, the State's proposed alternative to open-lake placement of dredged sediment is placement of the sediment in a CDF. There is currently a CDF available with sufficient capacity to hold the sediment in question. The Corps has used this CDF on prior projects, and had authorized its use under the Federal Standard for sediment from other sections of the dredged area in connection with the 2015 Cleveland Harbor project. In fact, the sediment at issue in this case has already been placed in the CDF as a result of this Court's issuance of a preliminary injunction.
The only remaining question is whether CDF disposal is capable of being done taking cost into consideration. It is undisputed that the Corps was allocated sufficient funds by Congress to pay for CDF disposal of the sediment in question as part of the 2015 dredging project. Therefore, cost did not render the CDF disposal incapable of being accomplished. CDF disposal was, therefore, practicable under both the Corps' and the U.S. EPA's definitions. 33 C.F.R. § 335.7; 40 C.F.R. § 230.10(a)(2).
The plain language of both sets of regulations requires the Corps to accommodate the state's concerns by choosing an alternative that avoids discharge of dredged
Through the CZMA Congress has declared that it is the national policy "to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone for this and succeeding generations." 16 U.S.C. § 1452(1). This Act also directs the federal government and its agencies to "encourage and assist the states to exercise effectively their responsibilities in the coastal zone
O.A.C. § 3745-1-05. U.S. EPA regulations define loading as "[a]n amount of matter or thermal energy that is introduced into a receiving water; to introduce matter or thermal energy into a receiving water." 40 C.F.R. § 130.2. Read in connection with the U.S. EPA's definition of "loading," the Ohio standard adopted by the U.S. EPA will, therefore, find a "significant lowering of water quality" whenever there is a new deposit
The Corps originally refused to acknowledge that Ohio's anti-degradation rule was relevant, maintaining that it's requirements exceeded the state's authority to
Final Water Quality Guidance for the Great Lakes Systems, 60 Fed. Reg. 15366-01.
This standard advances the stated goals of Congress and is consistent with international policies aimed at eliminating the discharge of toxins into the Great Lakes. 33 U.S.C. § 1251; S. Rep. No. 950370 (1977), 1977 U.S.C.C.A.N. 4326; Great Lakes Water Quality Agreement, Nov. 22, 1978, as amended by Protocol signed Nov. 18, 1987, U.S. — Can., Article II, 30 U.S.T. 1383. Therefore, if the State of Ohio has determined that any discharge of PCBs into the Great Lakes results in a significant lowering of water quality, that is the standard that the Corps must also apply when it determines whether its proposed alternative complies with state water quality standards.
This was not, however, the standard employed by the Corps in determining Section 404(b)(1) compliance under the Federal Standard.
The Corps admits that the sediment it sought to deposit into the open waters of Lake Erie contained PCBs, and that placement of the material dredged from the Upper Channel into Lake Erie
In carrying out the goals of the CZMA federal agency activity affecting any land or water use or natural resource of the coastal zone is to be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies
The Corps appears to read the "maximum extent practicable" condition as a grant of authority to override State compliance determinations and implement its own findings under the Federal Standard. However, the phrase "maximum extent practicable" does not give the Corps unbridled discretion to refuse the costs of compliance, nor does it legitimize the Corps' position that the Federal Standard can operate to override its obligation to abide by state environmental standards. See, Overton Park, 401 U.S. at 402, 91 S.Ct. 814 (finding that the phrase "no feasible and prudent alternative" did not widen the agency's discretion, or make the discretion standardless). This is especially true when, as here, the term "practicable" has been given a specific meaning by both Congress and the agency, which definition provides a meaningful standard for determining the limits of agency's discretion in such matters. As set forth above, CDF disposal is required by the State's management program, is clearly a more protective alternative to open-lake placement, is the alternative that best satisfies the requirements of the CZMA, and is practicable under the statutory and regulatory definitions of the term. Therefore, open-lake placement is not consistent with the CZMA requirements "to the maximum extent practicable."
The Corps' position that open-lake placement satisfies the CZMA is unfounded. Allowing its own Federal Standard determination
Even if the Corps had the authority to override the State's determination of the required WQC conditions, it did not apply the proper standards under the Great Lakes Water Quality Agreement, which was adopted by Congress, and become binding on all agencies. 33 U.S.C. § 1268. In adopting the Great Lakes Water Quality Agreement, Congress declared that "the United States should seek to attain the goals embodied [therein] ... with particular emphasis on goals related to toxic pollutants." The Great Lakes Water Quality Agreement, Nov. 22, 1978, as amended by Protocol signed Nov. 18, 1987, U.S. — Can., Article II, 30 U.S.T. 138, states that "it is the policy of the Parties that ... the discharge of any of all persistent toxic substances be virtually eliminated."
Through this treaty, the United States agreed to "eliminate or reduce to the maximum extent practicable the discharge of pollutants into the Great Lakes System." United States v. Michigan, 777 F.Supp. 1365, 1368 (E.D. Mich. 1991).
Generally the Corps is to be afforded a great deal of deference in how it calculates its own standards, and in its fact-finding processes. See, Arkansas v. Oklahoma, 503 U.S. 91, 110-13, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). There is a vast and detailed record outlining numerous scientific studies, communications between the parties, and records of the Corps' consideration of available resources and budgetary constraints. There are conflicting scientific standards applied by the parties in this case, and divergent conclusions reached by qualified scientists on both sides. With some stated exceptions, discussed below, the Court need not and will not second guess the conclusions reached by the Corps in the application of its own scientific testing. Nor will this Court second-guess the Corps' determination of which scientific testing methods are appropriate for establishing the discharge criteria under its own regulations. "When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).
There is an exception to such deference, however, when the Corps chooses to apply standards that conflict with its own regulations. As noted above, an agency is legally bound to follow its own regulations. If the Corps is dealing with the potential discharge of contaminated materials, its own regulations require it to follow the most current published version of the technical manual for contaminant testing and controls. 33 C.F.R. § 336.1. Plaintiff
The GLTM is a supplement to the national testing and evaluation guidance to be applied in accordance with 404(b)(1) Guidelines, and applies specifically to the Great Lakes. (AR0000585; AR0000581). The GLTM dictates that if contaminant concentrations in tissue exposed to the dredged material is statistically greater than that of tissue exposed to disposal site material, the dredged material is considered to have unacceptable adverse impacts on benthos. (AR0000790). Despite its admission that one-third of the sediment from the Upper Channel "did show a statistical increase in PCB bioaccumulation as compared to reference sediment from CLA-1" and that this finding would violate the Great Lakes Testing Manual's criteria for open-lake placement, the Corps maintained its position that open-lake placement for all sediment from the Upper Channel was appropriate. (ECF # 104-1, at PageID 9526-27).
Rather than look to state or federal statutory authority or follow its own regulatory requirement to apply the GLTM, the Corps relied on general guidance from the Inland Testing Manual ("ITM")(which it co-authored, and which creates no "legally-binding requirements on Federal agencies, States, or the regulated community,")
The Corps' conclusion contradicts not only the GLTM guidelines, which it was obligated to apply under 33 C.F.R. § 336.1, but also the ITM guidelines it inexplicably chose to use instead.
Further, the ITM acknowledges that "some dredged material evaluated in accordance with technical procedures in this manual may demonstrate a potential for unacceptable environmental impacts or not meet Federally approved State WQS," and in such case directs the agency to evaluate whether other "management options (e.g., alternative dredging and discharge methods, alternative discharge sites, confined disposal, capping, site controls such as covers and/or liners) will be necessary to determine whether the proposed discharge can be made acceptable or can be brought into compliance with the Guidelines and State WQS." (ITM 2-6). Any such evaluation would have resulted in a finding that the discharge could be brought into compliance by use of CDF disposal.
Even though the Corps uses the ITM guidelines to justify its findings, it maintains that because the ITM is not binding legal authority, any failure to adhere to a specific section of the guidelines cannot support a finding of arbitrary and capricious action. See, Southern Forest Watch Inc. v. Jewell, 817 F.3d 965, 973 (6th Cir. 2016); Reich v. Manganas, 70 F.3d 434, 437 (6th Cir. 1995). This is just one more example of how the Corps has attempted to reason itself free from its legal obligations. The Corps cannot avoid its obligation under a properly enacted regulation to follow a particular guideline simply by replacing it with a guideline of it own choosing. Further, even if the Corps did have the authority to substitute the ITM for other legally binding guidelines, it must, at least, then treat the ITM as a binding replacement. See generally, Diebold v. United States, 947 F.2d 787, 804-805 (giving credence to Comptroller General's decision that the agency's failure to follow their own handbook was reviewable error). An agency cannot replace a legally binding guideline with one that is not binding. 33 C.F.R. § 336.1; see also 33 C.F.R. § 336.1(b)(8). To hold otherwise would expand the authority of this agency, allowing the Corps to free itself of any legally binding limitations whenever it wished. The Corps does not have the authority to simply disregard or eliminate any requirements or restrictions it is subject to by statute or by its own properly enacted regulations. The attempt to do so can indeed be considered arbitrary and capricious, unlawful, and/or in excess of its delegated authority.
The Corps argues that it cannot be forced to spend money to meet standards or conditions it disagrees with. It also argues that even if it is required to cooperate
In addition to the Corps' statutory duties to "eliminate or reduce to the maximum extent practicable the discharge of pollutants into the Great Lakes System," and to accommodate State required disposal alternatives whenever practicable, Plaintiff cites 33 U.S.C. § 2211(b) as a basis for its position that Defendant is required to pay one hundred percent of the costs associated with the dredging and disposal of sediment from the Upper Channel.
Title 33 U.S.C. § 2211(b) dictates that "[t]he Federal share of the cost of operation and maintenance of each navigation project for a harbor or inland harbor constructed pursuant to this Act shall be 100 percent." 33 U.S.C. § 2211(b).
Defendant also argues, yet again, that its own Federal Standard overrides this statutory mandate to pay the full cost of the project. The law is clear, however, that the Corps cannot adopt and enforce agency regulations that conflict with a statutory directive. Congressionally passed statutes trump agency regulations. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842, 104 S.Ct. 2778; Kentucky Waterways Alliance, 540 F.3d at 474. Rather than ignoring this statutory directive because it conflicts with the Federal Standard, as it did, the Corps
The Corps also cites 33 C.F.R. § 337.2(b) as a basis for its inability to accommodate the state's requirements without financial contribution from a non-federal party. Yet again, the Court will point out that an agency cannot adopt and enforce agency regulations that conflict with a statutory directive. Even if this regulation could be harmonized with 33 U.S.C. § 2211, it does not permit the Corps to demand non-federal funding for water quality compliance costs, or to defer dredging under the circumstances at issue in this case.
The regulation does set forth the agency guidelines for what the Corps may do "[i]f the state agency imposes conditions or requirements which exceed those to meet the Federal standard" and those conditions or requirements "cannot be reasonably accommodated." It does not impose any prohibition against choosing a state compliant alternative to the Federal Standard, nor does it require the Corps to seek non-federal financial contribution to fund such an alternative. The regulation does direct the district engineer to "accommodate the state's concerns to the extent practicable," which as set forth above could have been accomplished in this case. Even if accommodation was not practicable, however, the regulation does not require non-federal financial contributions.
33 C.F. R. § 337.2(b)(1) states that cost-sharing may be requested if the state requires monitoring or testing beyond what is required in establishment of the Federal Standard, which is not the situation in this case. The state did not require additional monitoring or testing. Further, the regulation allows for a deferral of dredging if the state denies water quality certification. 33 C.F. R. § 337.2(b)(3). In this case, the state issued a conditional water quality certification, but did not deny certification. Guidelines for conditional certification are set forth under 33 C.F. R. § 337.2(b)(2) and are as follows:
33 C.F.R. § 337.2(b)(2).
There is no agency rule that allows, let alone requires, the Corps to charge all costs of the State's proposed disposal alternative to a state when the state issues a conditional WQC. Even if the Court assumes
Finally, Defendant argues that it also has a competing statutory obligation under 33 U.S.C. § 419a to take measures to extend the capacity of dredged material disposal areas by not placing materials in CDF's unnecessarily. This provision is not aimed at reducing the federal costs associated with operation and management of the Great Lakes Harbors, or reclassifying potentially toxic sediment to avoid use of the CDFs. Rather, it seeks to spur the Corps to develop management methods, in combination with the States, for reducing or consolidating the volume of material disposed of through such means as "construction of dikes, consolidation and dewatering of dredged material, and construction of drainage and outflow facilities." Id. The obligation to extend the capacity of disposal areas does not give the Corps a pass on complying with state disposal requirements, and should not be read in such a way as to create a conflict with other statutory obligations.
Congress has said that the Corps must comply with state and international water quality regulations and standards; the Corps must accept the state's determinations with regard to those regulations and standards; the Corps must accommodate the State's compliance conditions and eliminate the discharge of toxins whenever, and to the maximum extent practicable; and, the Corps must pay one hundred percent of the operation and maintenance costs for this type of harbor project. Failing to take these actions based on an erroneous view of the scope of its discretion and the power of its Federal Standard, was unlawful and in excess of its statutory authority.
As set forth above, dredging operations for the operation and maintenance of navigational features of the Great Lakes and Connecting Channels are duties that are delegated to the Corps through the WRDA. Specifically, 33 U.S.C. § 426o-2 (Section 5014(a) of the WRDA) requires that the Corps, "[u]sing available funds ... shall expedite the operation and maintenance including dredging of the navigation features of the Great Lakes and Connecting Channels for purposes of supporting commercial navigation to authorized project depths."
The Corps argues that it has the right to refuse dredging based on a disagreement between the Federal Standard and the State's WQC requirements because this statute, by nature of its vagueness, allows the Corps discretion to prioritize projects fitting within the statute's scope. The fact that the Corps is allowed to exercise discretion in prioritizing projects is not actually relevant to the question at hand, however, because it exercised that discretion in favor of dredging the entire Cleveland Harbor in 2015. The statute does not give the Corps discretion to avoid its statutory and regulatory obligations in the process of carrying out a prioritized project.
The evidence in this case shows that the cost of CDF disposal had no effect on the Corps' original decision to prioritize this project. The Corps has acknowledged the importance of this harbor, and the economic hardships that would result not only locally, but throughout the country, if dredging were not regularly maintained. (AR-SUPP0101835 (April 2014 Letter from Corps District Commander Owen J. Beaudoin); AR-SUPP0128557-58 (March 2014 Corps Issue paper); AR-SUPP0110077: (Corps' Application for 401 Permit); AR0004724; AR0004592; AR0005054; AR0005641-48).
Further, the Corps had available funds to satisfy the state's conditions and to accomplish the project in an expeditious manner.
The Corps does not dispute that it had available funds from Congress to complete the project in accordance with the State's WQC conditions. Instead it argues that it was legally allowed to redistribute funds obtained in connection with this project for some other use. Relying on Lincoln v. Vigil, 508 U.S. 182, 192, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993), Defendant claims that it is allowed to "reprogram" funds by shifting funds originally set aside for one purpose to another purpose within the same appropriation. Congress' purpose in allowing the re-programming of funds is the recognition that agencies may need to make adjustments for "unforeseen developments, changing requirements, ... and legislation enacted subsequent to appropriations." See In re Ltv Aerospace Corp., 55 Comp. Gen. 307, 318 (1975).
The Federal Standard determination does not count as a changed requirement because it is a self-imposed standard that cannot be treated as mandatory when it conflicts with other federal, state or international law pertaining to water quality. By treating the Federal Standard as "the primary method of determining the proper management practices for dredge sediment," (AR-SUPP0638872 at ¶ 4.b.i (Decision Brief for 2014 Cleveland Dredging 401 Permit Application)), the Corps has improperly elevated this internal agency rule over a Congressional directive to "use available funds" as necessary to perform its duties under 33 U.S.C. § 426o-2, and to comply with federal, state, interstate, and local environmental protection requirements to the extent practicable.
The Corps cannot reprogram funds based on conditions not approved or anticipated by Congress, and certainly cannot do so when those funds are needed for their original purpose in order for the agency to remain in compliance with governing law. An agency decision is arbitrary and capricious if it relies on factors Congress has not intended for it to consider.Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 2529, 168 L.Ed.2d 467 (2007); Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); Sierra Club v. United States Forest Serv., 828 F.3d 402, 407 (6th Cir. 2016).
Using the available funds, the Corps could have easily satisfied its obligations under 33 U.S.C. § 426o-2 and expedited the dredging of the Upper Channel, while simultaneously satisfying all of the statutory and regulatory obligations discussed above. Nevertheless, when the State issued its conditional water quality certification, requiring CDF disposal of the dredged materials, the Corps did not appeal
Congress clearly intends for the Corps to act when it has determined that dredging is necessary to maintain navigation. Support for this position is also found in 33 U.S.C. § 1344(t), which states that
The Corps' decision to abandon a project that would dredge a commercially significant channel of the Great Lakes, which is becoming dangerously close to being commercially unnavigable, when both the specific project and its funding had already been approved by Congress, simply because it did not want to pay the costs of complying with the State's water quality certification requirements, violates its statutory obligations under 33 U.S.C. § 426o-2 (as well as a multitude of other statutes and regulations discussed above). It also exceeds the scope of the Corps' discretionary authority under the statute. The decision not to dredge the Upper Channel under the circumstances existing in this case is, therefore, invalid and must be set aside pursuant to 5 U.S.C. § 706(2)(C). Because the Corps' decision relied on a misinterpretation of the mandatory nature of the Federal Standard, and misapplied the law relating to reprogramming funds, it is also a decision that is not in accordance with the law under 5 U.S.C. § 706(2)(A).
For the reasons set forth above, the Court finds that the Corps' determination that the sediment from the Upper Channel could be deposited in Lake Erie without violating Section 404(b)(1) of the Clean Water Act, was arbitrary and capricious, an abuse of discretion and otherwise not in accordance with the applicable law. That decision is, therefore, reversed pursuant to 5 U.S.C. § 706(2)(A). In addition, by treating its own determinations under the Federal Standard as the ultimate authority on the State's water quality certification standards, and elevating that regulation above its other statutory and regulatory obligations, the Corps exercised power in excess of its statutory jurisdiction, authority, or limitations. Thus, the Corps' decision to rely solely on the Federal Standard when determining what disposal method was permitted and/or required is also reversed pursuant to 5 U.S.C. § 706(2)(C).
Once the Corps exercised its discretion to prioritize the 2015 Cleveland Harbor
The Plaintiff's Motion for Summary Judgment (ECF # 101) is GRANTED. The Defendant's Cross-Motion for Summary Judgment (ECF # 104) is DENIED. The Defendant is ordered to the pay costs associated with the CDF disposal of all dredged sediment from the 2015 Cleveland Harbor Dredging Project. Such payment shall be authorized and arranged by the Secretary of the United States Army and/or the Assistant Secretary of the Army for Civil Works.
IT IS SO ORDERED.
