Section 404 Permits

Litigation Under the Endangered Species Act and the Clean Water Act

Litigation under the Endangered Species Act (ESA) and the Clean Water Act (CWA) proved to be the final hurdles to overcome before a major wetlands restoration project could begin.  Our client proposed a project that would take dredge spoils from Port of Oakland dredging projects and other dredging projects around San Francisco Bay for use in restoring historic wetlands.

The project site was an area in the Delta where the San Joaquin and Sacramento Rivers flow into San Francisco Bay. The property had been diked off from the bay in the 19th century to create grazing land. Over the years, the land subsided such that merely opening the dikes would completely flood the land, rather than recreate the shallow wetlands and tidal lowlands that had historically existed. Dredge spoils are problematic for the Port of Oakland, which needs to dredge regularly to remove silt deposits and to deepen the Port to accommodate bigger ships. The bay muds have been contaminated by industrial wastes over the years, and the number of places where the more contaminated spoils could be deposited are limited and expensive. Our client's idea was to create cells on its property in which the more contaminated spoils would be deposited first and then covered with cleaner spoils that would isolate the contaminants from the environment.

With Beveridge & Diamond, P.C.'s assistance, the client completed the necessary environmental reviews for the project under NEPA and CEQA and obtained a host of state and federal permits. Neighbors to the property objected, ostensibly because of concern that the contaminated spoils would not be effectively contained, but their real objection was that they didn't want to live next to a big construction project for the years required to complete the project. They challenged the CEQA approvals in state court and lost. They then retained Earthjustice to challenge the project in federal court. Plaintiffs sued the Corps of Engineers, alleging insufficient consultation under Section 7 of the Endangered Species Act, and failure to require an NPDES permit for the project in addition to a Section 404 permit.

With our prodding, shortly after the suit was filed the Corps reinitiated consultation with FWS on a species that had not been the subject of consultation initially, but which had been found during some early work. With further consultation pending, we persuaded the court to deny the plaintiffs' motion for preliminary injunction on the ESA. Thereafter, we won summary adjudication of the CWA claims, upholding the Corps' determination that the project required only a single CWA permit even though the project would arguably discharge pollutants not usually regulated under Section 404. Having lost two major battles, the plaintiffs finally conceded the futility of their fight, allowing the project to move forward as soon as the renewed ESA consultation concluded.

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