FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAN FRANCISCO BAY No. 20-15576

CONSERVATION AND DEVELOPMENT
COMMISSION, D.C. No.
Plaintiff-Appellant, 3:16-cv-05420-
RS
SAN FRANCISCO BAYKEEPER,
Intervenor-Plaintiff-Appellant,
OPINION
v.

UNITED STATES ARMY CORPS OF

ENGINEERS; TODD T. SEMONITE, in
his official capacity; JOHN D.
CUNNINGHAM, in his official
capacity; RICKEY DALE JAMES,
Assistant Secretary of the Army for
Civil Works, in his official capacity,
Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California
Richard G. Seeborg, Chief District Judge, Presiding

Argued and Submitted June 14, 2021

San Francisco, California

Filed August 6, 2021

2 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

Before: Mary M. Schroeder, Milan D. Smith, Jr., and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge Schroeder

SUMMARY*

Coastal Zone Management Act / Clean Water Act

The panel affirmed the district court’s summary judgment

in favor of the U.S. Army Corps of Engineers in an action
challenging plans proposed by the Corps for the dredging of
San Francisco Bay’s eleven navigational channels during
and after 2017.

Federal laws require review of such plans by two

California state agencies: the San Francisco Bay
Conservation and Development Commission, and the San
Francisco Regional Water Control Board. The Corps
submitted its dredging proposals for 2017 and later years to
the state agencies, which approved the proposals subject to
certain conditions. The Commission alleged that the Corps’
failure to comply with certain conditions violated the Coastal
Zone Management Act (“CZMA”). San Francisco
Baykeeper, an environmental nonprofit organization,
intervened, contending that the Corps also violated the Clean
Water Act (“CWA”). First, the Commission sought a
commitment from the Corps regarding what to do with the
dredged material. Second, in order to protect imperiled

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE 3

native fish, the Commission and Board sought to limit the

Corps’ use of a certain dredging method – hydraulic dredging
– in two specific Bay Channels.

The panel held that the condition about where to dispose

of dredged material was not itself an enforceable policy under
the CZMA and its implementing regulations, 15 C.F.R.
§§ 930.4(a)(1), 930.11(h), nor was it tied to any enforceable
policy as contemplated by those regulations. The Corps was
therefore not obligated to comply with that regulation.

The panel held that as for the state agencies’ condition

limiting the Corps’ hydraulic dredging in two particular
channels, the Corps’ final 2017 plan complied with the
express terms of that condition. The Corps’ plan therefore
did not violate the CZMA or the CWA.

The panel concluded that the Corps’ decision was not

arbitrary or capricious or in violation of any reporting
requirements.

COUNSEL

Tara L. Mueller (argued), Deputy Attorney General; David G.

Anderson, Supervising Deputy Attorney General; Daniel A.
Olivas, Senior Assistant Attorney General; Attorney
General’s Office, Oakland, California; Marc A. Zeppetello,
Chief Counsel, San Francisco Bay Conservation and
Development Commission, San Francisco, California; for
Plaintiff-Appellant.
4 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

Nicole C. Sasaki (argued), Staff Attorney, San Francisco

Baykeeper Inc., Oakland, California, for Intervenor-Plaintiff-Appellant.

Ellen J. Durkee (argued), Leslie M. Hill, and Jacqueline M.

Leonard, Attorneys; Eric Grant, Deputy Assistant Attorney
General; Jonathan D. Brightbill, Acting Assistant Attorney
General; Environment and Natural Resources Division,
United States Department of Justice, Washington, D.C.;
Melanie L. Casner and Roselyn J. Wang, Attorneys, United
States Army Corps of Engineers, Washington, D.C.; for
Defendants-Appellees.

OPINION

SCHROEDER, Circuit Judge:

INTRODUCTION

This case illustrates how the San Francisco Bay Area’s

economic and environmental destinies are entrusted to
multiple governmental agencies, state and federal, and how
those agencies must resolve difficult issues when one agency
proposes to take action impacting the interests of others. The
issues raised here relate to plans proposed by the United
States Army Corps of Engineers (“the Corps”) for the
dredging of the Bay’s eleven navigational channels during
and after 2017. Federal laws require review of such plans by
two California state agencies: the San Francisco Bay
Conservation and Development Commission (“the
Commission”), as the proposed dredging would affect the
coastal environment, and the San Francisco Regional Water
Control Board (“the Water Board” or “the Board”), as the
proposed plan would affect water quality. The claims before
 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE 5

us are the result of disagreements about where to deposit

dredged material, how often to dredge certain channels, and
what equipment to use to dredge those channels.

When, in 2015, the Corps submitted its dredging plans for

2017 and subsequent years to the Commission and Board for
approval, those state agencies attempted to receive assurances
from the Corps with respect to two aspects of the proposed
dredging. First, the Commission sought a commitment from
the Corps regarding what to do with the dredged material. It
was particularly concerned with how much of the dredged
material would be deposited back into the Bay and how much
would be committed to beneficial reuse projects such as
wetland restoration. Second, in order to protect imperiled
native fish, both the Commission and the Board sought to
limit the Corps’ use of a certain dredging method—hydraulic
dredging—in two specific Bay channels. The Corps ended up
giving different answers to these two conditions when it made
its final decision in early 2017. It refused to comply with the
first condition about where to dispose of dredged material. It
purported to comply with the second condition by proposing
to hydraulically dredge only one of the two channels in
question each year and to leave the other undredged until the
next year.

By the time the Corps made its final decision, the

Commission had filed this action in federal district court
pursuant to the Administrative Procedure Act (APA). The
Commission contended that the Corps’ refusal to comply with
the two conditions violated the Coastal Zone Management
Act (CZMA) because it violated policies adopted pursuant to
that statute and was arbitrary and capricious. San Francisco
Baykeeper, an environmental nonprofit organization,
intervened, contending the Corps’ decision also violated the
6 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

Clean Water Act (CWA). The district court granted summary

judgment to the Corps, holding it had not violated any
applicable provision of law. The Commission and Baykeeper
(“Plaintiffs”) appeal. The legal issues before us relate only to
the Corps’ 2017 final decision, not to the subsequent
operations conducted pursuant to it.

We affirm the district court. The condition about where

to dispose of dredged material was not itself an enforceable
policy under the CZMA and its implementing regulations, nor
was it tied to any enforceable policy as contemplated by those
regulations. See 15 C.F.R. §§ 930.4(a)(1), 930.11(h). The
Corps was therefore not obligated to comply with that
condition. As for the state agencies’ condition limiting the
Corps’ hydraulic dredging in two particular channels, the
Corps’ final 2017 plan complied with the express terms of
that condition. The Corps’ plan therefore did not violate the
CZMA or the CWA. Nor was the Corps’s decision arbitrary
or capricious or in violation of any material reporting
requirements.

BACKGROUND

A. DREDGING OVERVIEW

Because sediment accumulates in channels over time,

dredging—removing sediment from channel beds, often for
transport and disposal elsewhere—is required to keep
channels navigable. One aspect of this case involves where
dredgers may deposit dredged sedimentary material. There
are three alternatives: (1) in-Bay disposal sites, which are the
cheapest to use but environmentally disfavored; (2) beneficial
reuse sites, which are environmentally favored but the most
expensive; or (3) ocean disposal sites. The Commission
 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE 7

wanted the Corps to commit to depositing at least 40% of its

dredged material at beneficial reuse sites, and no more than
20% at in-Bay sites (“the 20/40 Disposal Condition”).

The second aspect of this case deals with the differences

between two methods of dredging: hydraulic (or “hopper”)
dredging and mechanical (or “clamshell”) dredging.
Hydraulic dredging works by using a suction to remove
material from the channel floor, while mechanical dredging
scoops such material in order to remove it. The state agencies
sought to limit use of hydraulic dredging in the Richmond
Outer Harbor (“Richmond channel”) and the Pinole Shoal
Channel (“Pinole channel”) out of concern for the delta and
longfin smelt, two imperiled native fish species. Hydraulic
dredging is less expensive than the alternative method of
mechanical dredging, but more likely to kill imperiled fish.
Both state agencies thus sought to limit the Corps’ use of
hydraulic dredging in these two channels to one channel per
year. The Corps decided to comply with this condition, but
in an unexpected manner: by hydraulically dredging only one
of the two channels each year in alternating fashion—and,
rather than mechanically dredging the other channel, simply
leaving it entirely undredged that year. Plaintiffs claim that
the Corps’ decision violated federal law.

We therefore turn to the two major federal statutes

involved, the Coastal Zone Management Act and the Clean
Water Act. Our review must include the policies and
procedures for federal-state cooperation that these statutes
and related regulations prescribe.
8 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

B. APPLICABLE STATUTES AND PROCEDURES

1. The Coastal Zone Management Act (CZMA) and

the San Francisco Bay Plan

The Coastal Zone Management Act was enacted in 1972

“to preserve, protect, develop, and where possible, to restore
or enhance, the resources of the Nation’s coastal zone.”
16 U.S.C. § 1452(1). The coastal zone includes both the
coastal waters and the adjacent shorelands. 16 U.S.C.
§ 1453(1). The CZMA, invoking cooperative federalism,
encourages states to develop management programs for their
coastal zones. 16 U.S.C. § 1451(i). Once approved by the
National Ocean and Atmospheric Administration (NOAA),
each such state-submitted coastal zone management program
becomes the governing federal standard for federal agency
activity involving that coastal zone. 16 U.S.C. §§ 1455,
1456(c)(1)(A); 15 C.F.R. § 930.11(h).

California has a federally approved management program

for the San Francisco Bay Area. One of the central
components of this management program is a comprehensive
coastal conservation and development plan known as the San
Francisco Bay Plan (“Bay Plan”), San Francisco Bay
Conservation & Dev. Comm’n (May 2020),
https://bcdc.ca.gov/pdf/bayplan/bayplan.pdf. The creation of
the Bay Plan preceded the CZMA because the California
Legislature acted before Congress did. See Acme Fill Corp.
v. S.F. Bay Conservation & Dev. Comm’n, 232 Cal. Rptr.
348, 353 (Ct. App. 1986). The 1965 McAteer–Petris Act,
Cal. Gov. Code § 66600 et seq., created the Commission in
1965, and the Commission completed and adopted the Bay
Plan over the following three years. Acme Fill, 232 Cal. Rptr.
at 353. Thus, by the time Congress enacted the CZMA in
 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE 9

1972, California already had a statutory scheme and

comprehensive coastal management program in place. Id. In
1977, NOAA formally approved the management program
for the San Francisco Bay Area, and the Commission and its
Bay Plan were accordingly wholly incorporated into the
CZMA’s federal scheme. Id. at 350; see Bay Plan, at 9.

The Bay Plan contains dozens of findings and policies on

dredging and other topics, so it is no surprise that the
Commission has periodically amended the Bay Plan since its
adoption a half-century ago. See id., Letter (before Table of
Contents). The CZMA allows states to amend their coastal
zone management programs, but, importantly, it mandates
that any amendment must be approved by NOAA in order to
render it legally enforceable against the federal government.
16 U.S.C. § 1455(e); 15 C.F.R. § 930.11(h); see Coastal Zone
Management Act Program Changes, National Oceanic and
Atmospheric Organization (May 21, 2021),
https://coast.noaa.gov/czmprogramchange/#/public/home
(click “Learn About Program Changes”) (“State programs are
not static – laws and issues change. Changes to programs,
including new or revised enforceable policies, must be
submitted to NOAA for approval through the program change
process.”). Such federal approval of plan amendments has
been required since the CZMA’s inception in 1972. Pub. L.
No. 92-583 § 306(g), 86 Stat. 1280, 1285 (1972); 16 U.S.C.
§ 1455(e).

Disposal of dredged material in the San Francisco Bay

Area, in particular, has been shaped by extensive federal-state
cooperative efforts. Between 1990 and 1999, numerous
federal and state agencies—the Corps, the Environmental
Protection Agency (EPA), the Commission, the regional
Water Board, and the State Water Resources Control
10 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

Board—developed a Long-Term Management Strategy

(LTMS) meant to guide the agencies’ decisions about
placement of dredged material in the Bay Area over the next
50 years. See LTMS Volume 1, Executive Summary,
at 1-1 to 1-2 (Aug. 1998), https://www.spn.usace.army.mil/
Portals/68/docs/Dredging/LMTS/1998/1-%20execsummary
.pdf. The LTMS endorsed a “long-term approach” of “low
in-Bay disposal (approximately 20 percent), medium ocean
disposal (approximately 40 percent), and medium
upland/wetland reuse (approximately 40 percent)” while
acknowledging that these goals “cannot be achieved
immediately.” See id. at 1-1, 1-11, 1-16. These long-term
numerical targets from the LTMS line up with the figures
from the disposal condition that the Commission
communicated to the Corps in 2015.

The LTMS itself has never undergone NOAA approval,

however, and is therefore unenforceable under the CZMA.
See 16 U.S.C. § 1455. The LTMS did inform several NOAA-
approved amendments to the Bay Plan in 2001, as outlined in
the Final LTMS Management Plan, at ES-1, 10-1 (July 2001),
https://www.spn.usace.army.mil/Portals/68/docs/Dredging/
LMTS/entire%20LMTF.pdf. Plaintiffs’ argument relies on
three of the Bay Plan’s dredging policies, all adopted as part
of the 2001 amendments. See id. at 10-1 to 1-10. These three
policies envision reducing the disposal of dredged material
back into the Bay and increasing reuse of such material for
environmentally friendly purposes:

Bay Plan Dredging Policy 1:

Dredging and dredged material disposal
should be conducted in an environmentally
and economically sound manner. Dredgers
should reduce disposal in the Bay and certain
 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE 11

waterways over time to achieve the LTMS

goal of limiting in-Bay disposal volumes to a
maximum of one million cubic yards per year
[1.0 mcy/yr]. The LTMS agencies should
implement a system of disposal allotments to
individual dredgers to achieve this goal only
if voluntary efforts are not effective in
reaching the LTMS goal . . . .

Bay Plan Dredging Policy 3:

Dredged materials should, if feasible, be
reused or disposed outside the Bay and certain
waterways. Except when reused in an
approved fill project, dredged material should
not be disposed in the Bay and certain
waterways unless disposal outside these areas
is infeasible . . . .

Bay Plan Dredging Policy 5:

[D]redging projects should maximize use of
dredged material as a resource consistent with
protecting and enhancing Bay natural
resources, such as creating, enhancing, or
restoring tidal and managed wetlands . . . .

Id. at 10-5 to 10-6; Bay Plan, at 54.

Plaintiffs rely on these Bay Plan Policies because, while

the LTMS itself is not itself enforceable, the Bay Plan is.
Plaintiffs argue that these Policies empowered the
Commission to, at its discretion, instruct the Corps to abide
by the LTMS’ 20% and 40% figures. According to the
Plaintiffs, such a condition was necessary in order to ensure
12 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

that the Corps’ actions would be consistent with the Bay Plan
Policies. See 15 C.F.R. §§ 930.4(a)(1), 930.11(h).

Consistency between federal actions and a state’s

enforceable policies is a major theme of the CZMA. In order
to achieve this consistency, the CZMA and its regulations
spell out step-by-step procedures for coordination and
cooperation between state and federal agencies. See
16 U.S.C. § 1456; 15 C.F.R. Part 930.

Any federal agency that seeks to carry out activity

“affect[ing] any land or water use or natural resource of the
coastal zone” must first submit a planning document known
as a consistency determination (“CD”) to the state agency.
16 U.S.C. § 1456(c)(1) The CD must explain the federal
plans and how they are, “consistent to the maximum extent
practicable with the enforceable policies of approved State
management programs.” Id. § 1456(c)(1)(A), (c)(2). NOAA
regulations further clarify that this standard requires federal
actions to be “fully consistent with the enforceable policies of
management programs[,] unless full consistency is prohibited
by existing law applicable to the Federal agency.” 15 C.F.R.
§ 930.32(a)(1).

The state agency then responds to the CD. The state may
concur, conditionally concur, or object to the CD. Id.
§§ 930.4, 930.6, 930.43. A conditional concurrence is a
communication from the state telling the federal agency that
it must meet certain conditions in order to be deemed
consistent with the state’s policies. Id. § 930.4. If the state
conditionally concurs in the CD, the state must “identif[y] . . .
specific enforceable policies of the management program”
and explain why its conditions are “necessary to ensure
consistency with [those] specific enforceable policies.” Id.
 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE 13

§ 930.4(a)(1). If the federal agency rejects the conditions in

the state’s conditional concurrence, the concurrence
effectively becomes an objection. Id. § 930.4(b).

The federal agency may not proceed with a proposed

action over the state’s objection unless the agency concludes
that the action is “fully consistent with the enforceable
policies of the management programs” or that “full
consistency is prohibited by existing law applicable to the
Federal agency.” Id. §§ 930.32, 930.43(d)(1)–(2). A federal
agency may generally not evade an “enforceable policy of a
management program” solely on the basis of cost. Id.
§ 930.32(a)(3).

The CZMA issues in this litigation concern chiefly

whether the 20/40 Disposal Condition is anchored in an
“enforceable policy” that the Corps may not evade on the
basis of cost.

2. The Clean Water Act (CWA)

Like the CZMA, the Clean Water Act requires state

approval before proceeding with certain environmentally
consequential actions. More specifically, any activity that
“may result in any discharge into the navigable waters”
requires a federal permit issued by the Corps. 33 U.S.C.
§§ 1311(a), 1341(a)(1). The Corps, in turn, may not issue
such a permit without obtaining a water quality certification
(WQC) from the appropriate state agency—in this case, the
Water Board—unless the state agency waives the certification
requirement. Id. § 1341(a)(1). Where, as here, it is the
Corps’ activity that will result in discharge, the Corps does
not process and issue permits to itself. 33 C.F.R.
§ 336.1(a)(1). The Corps must nonetheless obtain a WQC
14 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

from the Water Board in order to perform dredging—or, more

precisely, in order to discharge dredged material into the
navigable waters. See 33 U.S.C. §§ 1323(a), 1344(t),
1362(6).

The WQC represents the state agency’s conclusion that

the proposed activity will comply with the applicable state
water quality standards. See id. § 1341. State agencies enjoy
substantial latitude in this certification process: in addition to
limitations on chemical discharges and other restrictions
contemplated by the CWA, an issuing state agency may set
forth in a WQC “any other appropriate requirement of State
law.” Id. § 1341(d); see PUD No. 1 of Jefferson Cnty. v.
Washington Dep’t of Ecology, 511 U.S. 700, 713 (1994)
(interpreting “appropriate” to encompass, “at a minimum,”
certain limitations related to state water quality standards).
Once a requirement is included in the WQC, it becomes a
binding condition that is incorporated into any relevant
federal permit. 33 U.S.C. § 1341(d). Generally, federal
agencies may not reject or alter the conditions imposed by
state agencies’ WQCs. See, e.g., Snoqualmie Indian Tribe v.
FERC, 545 F.3d 1207, 1218 (9th Cir. 2008).

C. THE CORPS’ 2017 DREDGING PROPOSAL AND

RESPONSES

The events giving rise to this case began when the Corps
submitted its dredging proposals for 2017 and later years to
the Commission and Water Board pursuant to 16 U.S.C.
§ 1456(c)(2) and 33 U.S.C. § 1323. Both state agencies
approved the proposals subject to certain conditions. The
issues before us concern the Corps’ obligations to comply
with those conditions.
 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE 15

1. The Commission’s Letter of Agreement (“LOA”)

In March 2015, the Corps submitted its dredging proposal

to the Commission for approval in the form of a consistency
determination (“CD”), as required by the CZMA. 16 U.S.C.
§ 1456(c). The CD proposed dumping up to 48 percent of the
Corps’ dredged material back into the Bay, and it did not
propose reducing hydraulic dredging in the Bay.

In June 2015, the Commission responded to the Corps

with a proposed LOA conditionally concurring in the Corps’
CD. The Commission’s LOA stated the conditions under
which it would approve the Corps’ dredging proposal. The
two conditions relevant here concerned reducing the volume
of material deposited in the Bay and limiting the use of
hydraulic dredging equipment:

Special Condition II.B (“the 20/40 Disposal

Condition”):
The Corps would, in 2017, “reduce [its] in-
Bay disposal volume to meet the LTMS goals
of a maximum of twenty percent in-Bay
disposal and a minimum of forty percent
beneficial reuse.”

Special Condition II.J.2.a (“the Hydraulic

Dredge Condition”):
The Corps would, in fiscal year 2017, “use a
maximum of one hydraulic hopper dredge in
either [the] Richmond . . . or Pinole . . .
channels.”

The proposed LOA also directed the Corps to obtain

funding to accomplish these changes, citing to the Corps’
16 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

own regulations. See 15 C.F.R. § 930.32. A representative

of the Corps signed the LOA on June 23, 2015.

2. The Water Board’s Water Quality Certification

(“WQC”) and Provision 10

During the same period that the Corps was negotiating

with the Commission, the Corps was pursuing a parallel
approval process with the Water Board for the Corps’
proposed dredging plans through 2024. In February 2015, the
Corps wrote a letter to the Water Board requesting a WQC
for its dredging proposal. The Board issued a conditional
WQC to the Corps in May 2015. The WQC contained
several conditions, only one of which is relevant here.

Provision 10 of the WQC called for hydraulic dredging to

be used in, at most, one of the Richmond and Pinole channels
in any given year. Provision 10 was therefore in substance
the same as the Commission’s Hydraulic Dredge Condition
(Special Condition II.J.2.a). The relevant language in
Provision 10 provided that, beginning in fiscal year 2017, the
Corps was to either (1) “[l]imit hopper [hydraulic] dredge use
to a maximum of one in-Bay federal channel, either the
Richmond [channel] or the Pinole [channel]” or (2) avoid
hopper dredge use in any in-Bay channels.

As a matter of historical practice, whether hydraulically

or mechanically, the Corps had typically dredged both
channels every year. All parties were aware of this. The
language of Provision 10, however, did not refer to this
historical practice, nor did it expressly call for annual
dredging of each channel. It called only for limiting
hydraulic dredging to one of the two channels per year.
 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE 17

3. The Corps’ Rejection of the Agencies’ Conditions

In November 2015, the Corps wrote a letter to the

Commission rescinding its earlier acceptance of the LOA and
the conditions set forth in it. Citing funding limitations and
the need to maintain flexibility in planning, the Corps’ letter
took issue with both the LOA conditions—i.e., the 20/40
Disposal Condition and the Hydraulic Dredge Condition.
The Corps’ principal reason was cost. The letter cited the
relevant federal standard making cost an important criterion.
See 33 C.F.R. §§ 335.7, 336.1. The letter stated that the LOA
conditions “exceed[ed] the constraints established by the
federal standard, defined as the ‘least costly, environmentally
acceptable factor, consistent with engineering requirements
. . .’” and concluded that the Corps “lack[ed] the necessary
authority to comply with” those conditions. See 33 C.F.R.
§ 336.1(c)(1).

The Corps sent a similar letter to the Water Board the

same day formally disavowing Provision 10 of the WQC.
The letter went further and stated that the Corps would not
perform any dredging of the Richmond or Pinole channels
unless the Board removed Provision 10 from the WQC.

4. The Corps’ Final Decision (“Course of Action #2”)

The record developed in this case reflects that, after

further discussion with the Commission and the Board, the
Corps was considering four potential courses of action
(“COAs”):

• COA #1: status quo dredging and placement

(annually dredging both the Richmond and Pinole
channels, either hydraulically or mechanically, and
18 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

disposing of dredged material at sites previously

deemed acceptable);

• COA #2: dredge in accordance with the WQC, but not

the LOA (reducing hydraulic dredging by dredging
only one of the Richmond and Pinole channels each
year in alternating fashion, and making no
commitments with respect to in-Bay disposal or
beneficial reuse);

• COA #3: dredge in accordance with the LOA and the

WQC (reducing hydraulic dredging and describing a
number of alternatives for doing so, and committing
to decreasing in-Bay disposal and increasing
beneficial reuse); or

• COA #4: defer all maintenance dredging of San

Francisco Bay Channels.

Internal Corps memos recommended COA #2, which,

according to the Corps’ analysis, would have only a minimal
impact on navigation safety. By comparison, the Corps’
analysis indicated that full compliance with the LOA and
WQC dredging and disposal requirements—i.e., COA
#3—would, given funding constraints, result in “less than half
of the typical annual maintenance [being] accomplished in
any year” and a corresponding increase in navigational risk.

The Corps decided to adopt COA #2 in January 2017.

The Corps publicly announced a month later that it would not
dredge the Richmond channel in 2017.

As relevant here, this decision was a final action with two

consequences. It made clear that the Corps would leave one
 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE 19

of the Richmond and Pinole channels undredged each year,

and it made no commitment with respect to disposal of
dredged material. It thereby rejected the Commission’s 20/40
Disposal Condition.

D. DISTRICT COURT PROCEEDINGS

The Commission originally filed this suit in district court

in September 2016, seeking a declaration that the Corps was
required to conduct dredging as outlined in the Commission’s
LOA, and related relief. After the Corps adopted COA #2
several months into the litigation, San Francisco Baykeeper,
a regional non-profit environmental organization, intervened
as an additional plaintiff in the litigation. Plaintiffs jointly
filed an amended complaint in June 2017 challenging both
the Corps’ rejection of the Commission’s conditions and its
adoption of COA #2. The amended complaint took particular
issue with the Corps’ cost-based rationales for these actions.

The parties filed cross-motions for summary judgment.

Plaintiffs’ joint motion argued that the Corps’ actions
violated the CZMA because lack of funding could not excuse
the Corps from its obligation to act fully consistently with the
conditions of the LOA. According to Plaintiffs, the LOA’s
conditions were enforceable because they were necessary to
ensure the Corps’ operations’ consistency with enforceable
policies of the Bay Area management plan—primarily Bay
Plan Dredging Policies 1 and 5. Plaintiffs also contended that
the Corps had violated the CWA, violated certain regulatory
reporting requirements, and acted arbitrarily and capriciously
in violation of the APA. The Corps’ opposition and cross-
motion argued (1) that the conditions in the Commission’s
LOA were not themselves, and were not based on,
enforceable policies; (2) that the Corps had not violated the
20 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

CWA because COA #2 complied with Provision 10 of the

WQC; (3) that the Corps had also complied with its reporting
regulations; and (4) that all the Corps’ actions were
reasonable.

The district court granted summary judgment to the

Corps. It considered first the contention that the Corps was
required to abide by the 20/40 Disposal Condition from the
LOA in order to ensure compliance with the Bay Plan
Dredging Policies. The district court concluded that the Bay
Plan Policies were generalized policy statements and that the
Corps was therefore not legally obligated to accept the 20/40
Disposal Condition in the absence of direct support from any
enforceable policy. Next, with respect to Provision 10 of the
WQC (and the Commission’s equivalent Hydraulic Dredge
Condition), the district court found that “COA #2 meets the
letter of that requirement, because the Corps is in fact using
a hydraulic dredge in only one channel each year.”
Reasoning that “the Corps’ plan does not violate the
maximum limits on dredging imposed by the state agencies”
and that Plaintiffs had not shown “a basis to force the Corps
to do more dredging than it has agreed to carry out,” the
district court concluded that Plaintiffs “cannot prevail.” The
district court entered judgment in favor of the Corps.

Plaintiffs timely appeal. Plaintiffs argue that the Corps’

adoption of COA #2 violated the CZMA because the
Commission’s conditions are linked to federally enforceable
policies; that the Corps violated the CWA by failing to
comply with Provision 10; and that the Corps’ action was
arbitrary and capricious in violation of the APA, as well as in
violation of the Corps’ own procedural regulations.
 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE 21

DISCUSSION

A. Plaintiffs’ claim that the Corps must comply with the

Commission’s 20/40 Disposal Condition fails because
the condition is not supported by any enforceable
policy.

Plaintiffs contend that the Corps was required to comply

with the conditions in the Commission’s LOA, including the
20/40 Disposal Condition. That condition required the Corps
to meet specific targets: to “reduce [its] in-Bay disposal
volume to meet the LTMS goals of a maximum of twenty
percent in-Bay disposal and a minimum of forty percent
beneficial reuse.” Plaintiffs’ central argument is that the
Corps’ refusal to comply was based solely on cost and
therefore unlawful. They correctly identify federal
regulations that prohibit federal agencies from citing a
general lack of funds in order to avoid compliance with an
enforceable policy of an approved coastal zone management
program. 15 C.F.R. § 930.32(a)(3) (“Federal agencies shall
not use a general claim of a lack of funding or insufficient
appropriated funds . . . as a basis for being consistent to the
maximum extent practicable with an enforceable policy of a
management program.”).

The problem for Plaintiffs is that the statute and

implementing regulations require compliance only with the
“enforceable policies” of approved management programs.
See, e.g., 16 U.S.C. §§ 1455, 1456(c)(1)(A); 15 C.F.R.
§§ 930.32(a)(3), 930.39. Governing regulations specify that
this federal approval must come from NOAA. 15 C.F.R.
§ 930.11(h), (l). The specific numerical targets in the 20/40
Disposal Condition—no more than 20% of the Corps’
dredged material disposed of in the Bay, and no less than
22 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

40% of it committed to beneficial reuse—are not drawn from

any provision of a NOAA-approved program. Nor does any
provision resembling or contemplating the terms of the 20/40
Disposal Condition appear in any NOAA-approved program.
The Corps was therefore not required to comply with the
condition.

The 20% and 40% figures instead derive from the LTMS,
which, as Plaintiffs acknowledge, has never received NOAA
approval. Plaintiffs’ argument is that the 20/40 Disposal
Condition can be traced back to and made enforceable by
three dredging policies found in the NOAA-approved Bay
Plan. The Bay Plan does have the requisite federal approval
as part of the NOAA-approved management program for the
San Francisco Bay Area. NOAA first approved the Bay Plan
in 1977, and it has approved subsequent amendments to the
Bay Plan. See Acme Fill, 232 Cal. Rptr. at 350; Bay Plan, at
9. The Bay Plan’s provisions are therefore enforceable.

Plaintiffs specifically maintain that the 20/40 Disposal

Condition is based on Policies 1, 3, and 5 of the Bay Plan.
These express the overall goals of the LTMS as they relate to
dredged material. Policy 1 describes achieving, “over time,”
“the LTMS goal” of 1.0 mcy/yr or less of dredged material
deposited back into the Bay. Policy 3 provides that dredged
material “should, if feasible, be reused or disposed outside the
Bay.” Policy 5 calls for maximizing reuse of dredged
material. Bay Plan, at 54.

These policies speak in fairly general terms and do not

contain any ratio- or percentage-based targets. Plaintiffs
point out that policies need not be so specific in order to be
enforceable. It is true that CZMA regulations provide that, to
be enforceable, a policy “need not establish detailed criteria
 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE 23

such that a proponent of an activity could determine the

consistency of an activity without interaction with the State
agency.” 15 C.F.R. § 930.11(h). Policies must, however,
provide some meaningful guidance as to what is and is not
permissible; accordingly, the previous sentence in the
regulation requires policies to “contain standards of sufficient
specificity to guide public and private uses” in order to be
enforceable. Id. Bay Plan Dredging Policies 1, 3, and 5 do
provide general policy guidance for dredgers to deposit
dredged material outside of the Bay and maximize reuse
where possible. But they do not appear to contemplate
requiring any specific ratios or allocations among different
sites for the disposal of dredged materials, much less
imposing such requirements on an individual basis; yet that
is what the Commission attempted to impose here.

The language of Policy 1 in fact disfavors any mandatory

limitations on deposits in the Bay. The policy explicitly
endorses only “voluntary efforts” to reduce in-Bay disposal
until and unless such efforts fail. Bay Plan, at 54. Plaintiffs
acknowledge that voluntary compliance efforts have not yet
failed. Policy 1 therefore does not support the imposition of
a mandatory in-Bay deposit limitation on the Corps.
Similarly, Policy 1’s source, the Final LTMS Management
Plan, describes a two-phase plan for managing in-Bay
disposal, with numerous steps the Commission and the Board
must satisfy before transitioning from voluntary compliance
efforts (Phase I) to binding allotments imposed on individual
dredgers (Phase II). See Final LTMS Management Plan, at
6-1 to 6-7.

Plaintiffs have not shown any textual or practical

connection between the 20/40 Disposal Condition and the
Bay Plan Policies that they rely upon. The only numerical
24 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

reference in any of those Policies is Policy 1’s target of

1.0 mcy/yr for in-Bay disposal. Bay Plan, at 54. But the
policy describes that figure as a goal to be achieved “over
time” and as an aggregate limit, not one subject to
enforcement against individual dredging entities like the
Corps. Id.

We therefore must conclude that the 20/40 Disposal

Condition is unenforceable. It is not “necessary to ensure
consistency with” enforceable policies pursuant to 15 C.F.R.
§ 930.4(a)(1). Nor is the 20/40 Disposal Condition “based on
enforceable policies” as permitted under 15 C.F.R.
§ 930.11(h). The Corps was not required to comply with the
condition.

B. Plaintiffs’ Clean Water Act (CWA) claim fails because

the Corps’ plan complied with Provision 10 of the
Water Quality Certification (WQC).

The key condition that the Water Board’s WQC imposed

on the Corps was labeled Provision 10. Like the
Commission’s Hydraulic Dredge Condition, Provision 10 of
the WQC placed a limit on the amount of hydraulic dredging
the Corps could do in the Richmond and Pinole channels.
Specifically, Provision 10 provided that the Corps would
either (1) “[l]imit hopper [hydraulic] dredge use to a
maximum of one in-Bay federal channel, either the Richmond
[channel] or the Pinole [channel]” or (2) avoid hopper dredge
use in any in-Bay channels. This limitation on hydraulic
dredging, as opposed to mechanical or other types of
dredging, was intended to protect imperiled native fish
species.
 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE 25

The Corps does not dispute that the CWA required it to

comply with the conditions specified in the Board’s WQC,
including Provision 10. See 33 U.S.C. § 1341. The Corps
instead argues that the course of action it eventually adopted,
COA #2, complied with the plain language of Provision 10
and therefore with the CWA. Under COA #2, the Corps
proposed to dredge only one of the Richmond and Pinole
channels each year in alternating fashion, thereby leaving the
other channel undredged until next year. Based on past
practice and their representations before the court, this is not
at all what the Commission and Board intended. They
wanted the Corps to switch from hydraulic dredging to
mechanical dredging in order to protect imperiled fish, not
reduce the frequency of the Corps’ dredging.

Plaintiffs therefore argue Provision 10 required the Corps

to transition from hydraulic dredging to mechanical dredging
in at least one of the Richmond and Pinole channels, while
still dredging both channels annually in accordance with past
practice. They contend COA #2 represented an unlawful
refusal to fully implement Provision 10. Provision 10,
however, only directs the Corps to limit its use of hydraulic
dredging. COA #2 does exactly that. In the district court’s
words, “COA #2 meets the letter of that requirement, because
the Corps is in fact using a hydraulic dredge in only one
channel each year.”

Plaintiffs point to past practice. They emphasize that, in

past years, the Corps had typically dredged both channels
every year, whether hydraulically or mechanically. Plaintiffs
also point out that all parties were initially operating with the
understanding that both channels were to be dredged
annually, and that hydraulic dredging traps and kills more fish
than mechanical dredging does, since it requires removing
26 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

much more water from the channel. The Corps does not
dispute this history.

Given the cooperative federal-state process dictated by

the CWA, however, the issue before this court is whether the
Corps’ plan complied with the condition that the Water Board
imposed: Provision 10. The requirements set forth in a WQC
are what is legally enforceable under the CWA. See
33 U.S.C. § 1341(d) (“[An] [a]ppropriate requirement of
State law set forth in [a water quality] certification . . . shall
become a condition on any Federal license or permit subject
to the provisions of this section.”). Under the CWA, the
“appropriate requirement[s] of State law” that federal
agencies must follow result from a cooperative approval
process involving federal agencies like the Corps and state
agencies like the Board. Id. The requirement that resulted
from this process, Provision 10, did not mandate any
dredging beyond the limited hydraulic dredging proposed in
COA #2.

Plaintiffs argue that the Corps’ adoption of COA #2 is

nonetheless unlawful because it reflected an improper plea of
insufficient funding to evade the Commission’s conditions.
See 15 C.F.R. § 930.32(a)(3). Plaintiffs cite to Ohio v. U.S.
Army Corps of Engineers, 259 F. Supp.3d 732 (N.D. Ohio
2017), where the Corps refused to accommodate the state’s
WQC condition and would not dredge the channel in question
unless it received non-federal funds for that purpose. Id.
at 742–43. Its refusal on the basis of cost was held to be
unlawful. Id. at 754. The difference is that, here, the Corps
did not refuse to comply with the WQC condition. It
complied with Provision 10’s specific terms. The decision in
Ohio is therefore inapposite.
 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE 27

C. The Corps’ adoption of COA #2 was not arbitrary or

capricious or in violation of any material reporting
requirements.

Plaintiffs contend that the Corps’ decision was arbitrary

and capricious in violation of the APA both because COA #2
is a generally unreasonable means of complying with
Provision 10 and because the Corps did not adequately
explain and justify its decision to depart from past dredging
practices. See 5 U.S.C. § 706(2)(A); FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 514–15 (2009).

These arguments ignore that the Corps engaged in a

lengthy cooperative process of negotiations, one embedded in
the CZMA and the CWA. COA #2 did not appear out of the
blue. Rather, it was one of several alternatives the Corps
considered in response to discussions with the state agencies
about conditions that had, in turn, been crafted in response to
the Corps’ initial dredging plans. It is hard to see how the
adoption of COA #2 could be arbitrary and capricious when,
as we have seen, it complied with the relevant enforceable
policies and with Provision 10. The Corps’ course of action
was thus not irrational. The Corps’ deliberations reflect the
agency’s understanding that COA #2 represented a change
relative to its historical practice. See FCC v. Fox, 556 U.S.
at 515–16.

Plaintiffs also suggest that the Corps’ 2017 adoption of

COA #2 has turned out to be problematic because the Corps
had to dredge the Pinole channel on an emergency basis in
2020. Such subsequent developments are not relevant to the
issues before us, which relate to the validity of the Corps’
decision to adopt COA #2 in 2017. See Lands Council v.
Powell, 395 F.3d 1019, 1029–30 (9th Cir. 2005) (quoting Sw.
28 S.F. BAY CONSERVATION & DEV. COMM’N V. USACE

Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d

1443, 1450 (9th Cir.1996)) (“[R]eview of an agency decision
typically focuses on the administrative record in existence at
the time of the decision . . . .”). We have earlier denied
Plaintiffs’ request that we take judicial notice of subsequent
events. We express no opinion as to whether the 2020
dredging may be relevant in other, later proceedings related
to how the Corps conducted its dredging operations or on the
effects of those operations.

Finally, Plaintiffs contend that the Corps failed to comply

with various procedural regulations contained in 33 C.F.R.
Part 337 and dealing for the most part with internal reporting
requirements. For example, Plaintiffs argue that the Corps
was required by 33 C.F.R. § 337.8(a)(3)–(4) to report to
higher echelons on certain funding considerations but did not
do so. Even assuming without deciding that the Corps failed
to follow these regulations, Plaintiffs have not explained what
relief would be warranted by such violations or how such
violations might affect the validity of COA #2. Nor have
they cited any authority—statutory, regulatory, or judicial—
for setting aside an agency decision on such a basis.

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. Nevertheless, we must agree with the district court
that the adoption of COA #2 did not violate any applicable
law.

CONCLUSION

The judgment of the district court is AFFIRMED.