U.S. District Court Rules in Favor of Port of Cleveland and State of Ohio in Army Corps Dredging Litigation
In a long-running dispute over dredged material disposal with significant environmental and economic implications, U.S. District Court Judge Nugent granted summary judgment in favor of Plaintiffs State of Ohio and the Port of Cleveland against Defendant Army Corps of Engineers. State of Ohio, et al., v. U.S. Army Corps of Engineers, Case 1:15-cv-679-DCN (N. D. Ohio). McMahon DeGulis LLP represented the Port of Cleveland, the third largest Port in the Great Lakes.
In 2015, the Army Corps announced a new disposal method for sediment dredged from the Cuyahoga River navigation channel—dumping the dredged sediment (that contains PCBs) directly into Lake Erie. The open-Lake disposal option departed from 40 years of safely disposing dredged sediments in upland confined disposal facilities (CDFs). The Corps threatened to cease dredging the River unless a non-Federal sponsor paid the difference in cost between open-Lake disposal and CDF disposal of sediment.
The State of Ohio and the Port of Cleveland thus filed an action against the Army Corps to force the Corps to dredge the River to protect commercial navigation and the critical billion dollar economy that relies upon timely dredging.
On May 5th, the Court granted summary judgment in favor of the State and the Port. The Court determined that the Corps acted in excess of its statutory authority under the Clean Water Act, the Water Resources Development Act, the Coastal Zone Management Act, NEPA, its own dredging regulations and the Great Lakes Water Quality Agreement. The Corps did so by arbitrarily and capriciously selecting open-Lake disposal and in threatening to defer dredging if a non-Federal sponsor would not pay the costs of CDF disposal.
The Court concluded the Corps’ open-Lake disposal violated the clear intent of Congress in enacting the Clean Water Act—to end the open water disposal of dredge spoil and to eliminate the discharge of pollutants into navigable waters. The Court found that CDF disposal was a “practicable” alternative with less impact on the environment. The Court also ruled that the State, not the Corps, has the ultimate authority to determine compliance with federally-approved state water quality standards.
The Court ordered the Corps to pay the full cost of CDF disposal. The Court admonished the Corps for attempting to “reason itself free from its legal obligations” and for its attempt to employ agency regulations and guidance in contravention of Congressional statutes and their purpose and intent.
A corollary case involving 2016 dredging of the Cuyahoga River delayed by the Corps remains pending.