Ohio v. United States Army Corps of Engineers (259 F. Supp. 3d 732, 2017)

United States District Court for the Northern District of Ohio 2017-05-05

Conservation Navigation and Navigable Waters Government Organization and Employees

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

DONALD C. NUGENT, United States District Judge

This casé is before th,e 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 “Plaintiff’), filed a Motion for Summary Judgment asking this Court to order the United States Army Corps of Engineers complete the entire 2015 Cleveland Harbor Dredging Project, including the Upper Channel, and to bear the full cost for disposing of all sediment from the Project in a confined disposal facility, .in compliance with the Ohio Environmental Protection Agency’s (“OEPA”) water quality certification conditions. (ECF # 101). Ami-cus Curiae briefs supporting.this request were filed by ArcelorMittal Cleveland LLC, and Cuyahoga County. (ECF # 112, 118).

Defendants, United States Army Corps of Engineers, John M. McHugh, Jo-Ellen Darcy, Thomas P. Bostick, Richard G. Kaiser, and Karl D. Jansen (“Defendant”) filed a Cross Motion for Summary Judgment and Opposition to Plaintiffs Motion for Summary Judgment. . (ECF # 104). Plaintiff filed a combined Reply brief and Opposition to the Defendant’s Cross Motion (ECF # 110), and Defendant filed its own Reply. (ECF # 115). The issue is now ripe for determination.

BACKGROUND

The United States Army Corps of Engineers (“the Corps”) is an agency of the federal government that is supposed to “provide! 1 safe, reliable, efficient, and environmentally sustainable waterborne transportation systems (channels, harbors, and waterways) for movement of commerce, national security needs, and recreation.” Specific to this action, the Corps is required to expedite the operations and maintenance, including dredging, of the navigation features of the Great Takes in order to support commercial navigation. 33 U.S.C. § 426o-2. One way the Corps maintains navigational channels is by removing sediment and other-material that has accumulated at the bottom of the bodies of water. This, process is called “dredging.” Dredging is used to maintain the depth of rivers and channels to enhance their navigability.

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 Arcelor-Mittal Cleveland, which is one of the largest and most productive steel mills in the world. (ECF 13-31, ¶ 5). This plant employs 1,900 people and has an annual raw steel production capacity of 3.8 million tons. (Id. at ¶¶ 4 and 5). Sixty percent of the steel produced from ArcelorMittal Cleveland is used in the State of Ohio for construction -:and by Ohio manufacturers. (Id. at ¶ 5). If appropriate dredging of the-waterways does not occur, and commercial vessels are not- able to safely traverse the waters, ArcelorMittal Cleveland and other commercial entities would face significant threats to the continuation of their business- and all of the entities relying on the steel produced in that plant could suffer a significant loss of resources.

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. (ÁR0004592; AR0005054; AR-SUPP0101835 (April 2014 Letter from Corps District Commander . Owen J. Beaudoin); AR-SUPP0128557-58 (March 2014 Corps Issue paper)). In fact, the Corps stated in its 2015 application for a permit under Section 401 of the Clean Water Act (“CWA”) that if dredging did not occur;

[t]he large industrial base that depends on the harbor to transport commodities would no longer be able to do so cost-effectively. The harbor would no longer be a viable alternative for the transportation of goods. This would negatively impact .the annual $1.7 billion in direct revenue; over 15,000 direct, indirect, and induced jobs'; and $1 billion in personal income generated by the continued viability of the Harbor. Losses of between one and two feet of channel depths would result in increased transportation cost between $2.3 million and $5.2 million annually.

(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 Pa-gelD 9481; ECF #101-1 at PagelD 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”). (AR-SUPP1086688). The 2015 dredging project was originally scheduled to begin on or after May 15, 2015.

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 test-mg.” (AR0003629). The bioaccumulation testing performed by the . Corps concluded that two thirds of the sediment from the Upper Channel showed no statistical increase in PCB bioaccumulation when compared to exposure from the proposed disposal site, (AP0005089; ARQQ03637, 3706-07; AR0003809), and that one third did show a statistical increase in bioaccumulation compared to this site. (AR0005089).

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 bioac-cumulation levels at the proposed disposal site.” (ECF #104-1, at PagelD 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 drédged 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 the Upper Channel sediment contains PCBs. (AR0005819-5823). Rather than appeal or otherwise administratively challenge the disposal requirements contained in the State’s WQC, the Corps declared that it would not bear the cost of CDF disposal for the Upper Channel sediment. It then gave the State an ultimatum: either find a way to pay for the CDF disposal for the Upper Channel-sediment using non-federal money, or the Corps will not dredge that section of the Cleveland. Harbor.

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-Fedéral 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 Feder-ál 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 Plaintiffs Motion for Preliminary Injunction, ordered the Corps to dredge the ■Upper Channel and to deposit the dredged material in a CDF, and set a briefing schedule to determine who should bear the cost of the CDF, disposal. (ECF #33). Subsequently, Plaintiff sought leave to expand the administrative record, which this Court granted. The issué is now fully briefed and ready for resolution.

STANDARD OF REVIEW

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 “covering] 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 yio-lates the. Constitution or.a federal statute. Stinson v. U.S., 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Agencies are also required by law to follow their own regulations. Meister v. U.S. Dept. of Agriculture, 623 F.3d 363, 371 (6th Cir. 2010); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004).

The APA requires reviewing courts to

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be'

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be' taken of the rule of prejudicial error.

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 APÁ 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).

ANALYSIS

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 # 104-1, at PagelD 9478). Defendant does, however, argue that it is bound by the Federal Standard and by 33 C.F.R. § 337.2(b)(3) to defer dredging the Upper Channel unless and until a non-federal partner pays the cost difference between the Federal Standard’s designated alternative (open-lake placement) and the State’s required alternative (CDF disposal). Ultimately, the Defendant contends that unless there is a 'Statutory mandate specifically requiring it to dredge the Upper Channel at this time, and to pay the cost of CDF disposal, the Court has no authority to review its decision to forego dredging for any reason.

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. ,

A. Reviewability

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 pre-Vail if it violates a federal statute, and no agency can override statutory requirements by enacting a contradictory agency rule. See, e.g., Stinson v. U.S., 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).

Thé 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, “[ujsing 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. (EOF # 115 at 14). It claims, therefore, that the decision of whether to dredge the Upper Channel is committed to agency discretion and is unreviewable. Although, the Corps has some degree of discretion to determine what projects should be prioritized within the amount of resources available, its discretion in this matter is nqt. unlimited. Thus, it does not qualify as ^agency action committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).

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 (1985)(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.”). In this case, there is no shortage of law to apply. There are limitations within the authorizing statute that guide the Corps in how to prioritize its operational and maintenance duties, and in how much it should spend to execute those duties. The Corps determined that the dredging project at the Cleveland Harbor was a priority and should be funded pursuant to its obligations under 33 U.S.C. § 426o-2. There is no question that prioritizing the Cleveland Harbor dredging project was within the Corps’ discretion, and that it fit within the statute’s authority to expedite operations and maintenance of navigational features of the Great Lakes in order to support commercial navigation. The Corps has significantly less discretion, however, in how it can execute a project once it has been prioritized and has received Congressional approval and funding. There are statutory and regulatory mandates addressing how each project should be handled from an environmental standpoint, and addressing the agency’s obligation to pay the costs of compliance.

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 authorized by the Federal Standard are to be allocated, and regulations' providing standards for evaluating the environmental impact of contaminated discharge. Some of these agency standards reinforce the requirements set forth in federal statutes and regulations. Others may conflict with applicable federal statutes, state environmental laws, and international agreements, and are subject to review on this basis. The Corps has been given little to no discretion when it comes to complying with state environmental .laws and standards, and has been given no discretion to delegate the costs associated with such compliance. Therefore, determinations related to compliance with state water quality standards, the payment of costs associated with such compliance, and the appropriateness of discharging dredged material into the Great Lakes are all subject to judicial review within the constraints of the APA.

B. Statutory Obligations and Other Limitations on the Agency’s Authority

On its face, the Corps’ Federal Standard appears to be a rational and prudent regulation meant to curb excess spending of tax-payer money by ensuring that the least costly alternative, within the ■ constraints of the CWA’s requirements, be utilized for the disposal of dredged material. The Corps, however, has interpreted this regulation in a way that conflicts with federal, state, interstate requirements which relate to the control and abatement , of water pollution. The Corps misinterprets its authority to determine what alternatives comply with the CWA. See, e.g., 33 U.S.C. § 1323(a); 33 U.S.C. § 1341(a)(1); 33 U.S.C. § 1251(b); 16 U.S.C. § 1452; 40 C.F.R. § 230.10; 33 C.F.R. § 320.4(d); 33 C.F.R. § 320.1(a)(5); 33 C.F.R. § 336.1(b)(8). In addition, its tenacious adherence to the Federal Standard ignores its statutory and regulatory obligations to use all available funds to expedite commercial navigation projects, to fully fund operational and maintenance projects aimed at supporting navigation, and to implement the most environmentally friendly disposal alternatives whenever practicable. See, e.g., 33 U.S.C. § 426o-2; 33 U.S.C. § 2211; 33 U.S.C. § 1344(t); 33 U.S.C. § 1323(a); • 16 U.S.C. § 1456(c)(1)(A); 33 U.S.C. § 1268; 33 C.F.R. § 337.2(a); 40 C.F.R. § 230.10(a); 33 U.S.C. § 1251(a). Agency rules cannot be used to contravene statutory mandates or interfere with Congress’ stated or intended purpose. See, Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Kentucky Waterways Alliance v. Johnson, 540 F.3d 466, 474 (6th Cir. 2008). In addition, 'an agency’s interpretation of its own regulations, though afforded great deference, is not controlling if it is plainly erroneous or inconsistent with the plain language of the regulation. See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); Kentucky Waterways Alliance, 540 F.3d at 474. Agency interpretation of its own regulation is plainly erroneous if it contradicts a Congressional directive, or exceeds the scope of the agency’s delegated power.

1. The State’s Authority to Determine Compliance With the Clean Water Act

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. (ECF #104-1 at PagelD 9523-24). The governing law gives the Corps no such authority

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.” City of Olmstead Falls v. U.S.E.P.A., 266 F.Supp.2d 718, 726 (N.D. Ohio 2003). Through this certification process, state water’ quality requirements take on the force of federal law, and become conditions which must be followed by federal permitting agencies.

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- oh 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:

Section 404 — mandates that all dredging activities of the U.S. Army Corps of Engineers be conducted in compliance with applicable state water quality standards, and all other State substantive and procedural requirements....

By this Amendment, the committee- clarifies that corps dredging activities are not exempt from State pollution abatement requirements.... Several corps district offices to date have requested and received funds to provide on land or confined disposal of dredge spoil. Pursuant to this amendment, the corps may be required by the State in some instances to expend additional funds to protect water quality.

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 preempt state law in this area. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 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 Pa-gelD 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 told agencies that they- must cooperate with the states, and comply with the state standards to the same extent as would any nongovernmental discharger. When a' Congressional mandate conflicts with agency rules and regulations, the Congressional mandate will prevail. See, City of Cleveland v. Ohio, 508 F.3d 827, 838 (6th Cir. 2007). By declaring that open-lake placement was a viable alternative under Section 404(b)(1) of the CWA (and consequently under the Federal Standard), and ignoring the State’s determination to the contrary, the Corps has exceeded it statutory authority, limitation, and rights. 5 U.S.C. § 706. Because the state has the final authority to determine what alternatives will satisfy Section 404(b)(1) of the CWA, and CDF disposal was the only disposal alternative identified by the State, the Corps had no less costly alternative to consider under the Federal Standard.

2. The Corps’ Obligation to Comply with State and International Water Quality Requirements

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

each agency of the Federal Government, engaged in any activity resulting, or which may.result in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner and to the same extent as any nongovernmental entity including the payment of reasonable service charges.... no exemption may be granted from the requirements of section 1316 or 1317 of this title.

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. Further, it requires federal agencies to comply with such standards “in the same manner and to the same extent as any nongovernmental entity including the payment of reasonable service charges.” Nongovernmental entities would never be allowed to shift the cost of compliance back to a state or to some other party. They must pay for their own costs of compliance with a state’s water quality standards. Therefore, pursuant to this statute, so must the Corps. -A contrary finding is not in accordance' with the plain language of this law.

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). Indeed, this is exactly how the Corps has operated in the past, and is how Commander of the Corps’ Buffalo District recommended the Corps proceed in this instance.

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. There is-no question, therefore; that this alternative was available and capable of being used based on technology and logistical considerations, at the time the Corps made its determination.

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 disposál incapable of being accomplished. CDF disposal was, therefore, practicable under both the Corps’ and the U.S. EPA’s défíni-tions. 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 materials and lessens the adverse impact of discharge, where practicable. 33 C.F.R. § 337.2(a), and 40 C.F.R. § 230.10(a). The Corps’ refusal to accommodate the State’s WQC condition was a required action unlawfully withheld, that resulted in an unreasonable delay of the Cleveland Harbor dredging project. Allowing an agency to abandon a project, merely because it prefers not to expend the money necessary to meet State water quality standards, would strip the above-cited statutes and regulations of any force and frustrate the clear intent of Congress.

3. The Corps’ Obligations to Comply With the Coastal Zone Management Act

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 through the development and implementation of management programs ... giving full consideration to ecological ... values as well as the needs for compatible economic development.” 16 U.S.C. § 1452(2). It, in effect, creates a “federal-state partnership to ensure water quality and coastal management around the country, so that state standards approved by the federal government become the federal standard for that state.” Islander E. Pipeline Co., LLC v. McCarthy, 525 F.3d 141, 143-44 (2nd Cir. 2008). Ohio’s anti-degradation standard, as set forth in Ohio Admin. Code § 3745-1-05, has been approved by the United States EPA, thereby becoming the federal standard for Ohio under the CZMA. Ohio’s anti-degradation standard provides as follows:

A significant lowering of water quality occurs when there is a new or increased loading of any bioaccumulative chemical of concern from any regulated existing or new facility, either point source or nonpoint source for which there is a control document or reviewable action including ... deliberate activities that, based on the information available, could be reasonably expected to result in an increased loading of any bioaccumulative chemical of concern to any waters of the Great Lakes system.

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 of any bioaccumulative chemical, including PCBs, to any waters of the Great Lakes.

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 determine water quality standards. (AR0003807; AR0004089; ECF # 104-1 at PagelD 9551). Following discussions with the Ohio EPA, the Corps nonetheless agreed to consider the anti-degradation rule, and determined that open-lake placement would not violate this standard “as USACE interprets it.” (AR0004480). The problem with this position is that the Corps’ interpretation of Ohio’s regulations is not entitled to any deference. Congress delegated the authority to set and determine water quality standards to the U.S. EPA, who then delegated those duties to the states. The state’s standard was adopted by the U.S. EPA, and taken directly from the U.S. EPA’s model standard for water quality within .the Great Lakes. 40 C.F.R. PL 132, App. E(A); O.A.C. § 3745-l-05(F). The U.S. EPA in developing its model standards took into account the unique nature and importance of the Great Lakes, and recognized the potential damage that can occur from even short-term (temporary) discharges.

The final Guidance also reflects the unique nature of the Great Lakes Basin Ecosystem by establishing special provisions for chemicals of concern.... The experience with such pollutants as ... PCBs indicates that it takes many decades to overcome the damage to the ecosystem caused by even short-term discharges, and that prevention would have been dramatically less costly than clean-up.

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 “may result in a temporary negligible increase in the benthic bioaccumulation of PCBs.” (EOF #46, PagelD 3162; AR0005100). .It has also admitted that one-third of the sediment from the Upper Channel “did show a statistical increase in. .PCB bioaccumulation as compared to reference sediment” chosen within Lake Erie. (AR0005089). Ohio’s anti-degradation standard states that a new deposit of' any bioaccumulative chemical of concern, here PCBs, into the Great Lakes, without regard to the duration of the potential ¿ffect, creates a “significant ■ lowering of water quality.” Therefore, there should be no dispute that the Corps’ plan for open-lake placement of PCB containing sediment would result in a “significant lowering of water quality” in Lake Erie, under Ohio’s anti-degradation standard. Therefore,- the Federal Standard determination by the Corps in this case was unlawful because the Corps exceeded its discretionary authority. It was required to apply Ohio’s anti-degradation standard, and to. accept the State’s interpretation of its own standard.

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 enforce-able policies of approved State management programs. 16 U.S.C. § 1456(c)(1)(A). The State has determined that open-lake placement of Cleveland. Harbor sediment is not consistent with the enforceable policies of the State water pollution management programs and standards. However, relying on 33 C.F.R. § 336.1(a)(2), the Corps argues that it does riot have to act in accordance with the CZMA if it determines that the State’s alternative is not practicable, and its own proposed alternative is consistent with the programs “to the maximum extent practicable,”

The Corps appears to read the “maximum extent practicable” condition as a grant of authority to override State compliance determinations arid implement its own findings under the Federal Standard. However, the phrase “máximum - 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 “rio 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 to supercede its obligations under the CZMA is unlawful because it gives the agency power in excess of its Congressionally delegated authority.

4. The Corps’ Obligation to Comply with The Great Lakes Water Quality Agreement

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). As discussed above, applying the Federal Standard, which requires implementation of the least costly sediment , disposal alternative within the Corps’ interpretation of the parameters of Section 404(b)(1) of the CWA, and allowing the discharge of PCBs into the Great Lakes, conflicts with the Corps’ statutory obligation to eliminate or reduce the discharge of pollutants to the maximum extent practicable.

5. The Corps’ Obligation to Use the Great Lakes Testing Manual

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 contends, and Defendant does not dispute that the Great Lakes Testing Manual (“GLTM”) is the, most recent published testing manual applicable to contaminant testing and controls for discharges into the Great Lakes. (See, AR0003723; AR-SUPP0288897; AR-SUPP0288905-06).

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 PagelD 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,”) and the American Society of Testing and Materials (an independent standard-setting organization). The Corps also employed the Spatially Explicit Screening Level Exposure Comparison (“SESLEC”) method which is an unpublished testing method. Relying on these methods, the Corps concluded that the statistical increase in PCB bioaccumulation that would occur by placing the sediment in question into Lake Erie would not be “ecologically meaningful.” (ECF # 104-1, at PagelD 9485; ■ AR0001665; AR0001682; AR0005089; AR0003640; AR0003785). Consequently, it found open-lake placement of the sediment to be acceptable.

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. The ITM, itself, requires compliance with 38 C.F.R. § 336.1, which in turn requires use of the GLTM. (AR-0000080). It specifically states that “[d]redged material evaluated under the procedures described in this manual must also satisfy all other applicable requirements of 40 C.F.R. § 230-232, 33 C.F.R. § 320-330, and 33 C.F.R. § 335-338 in order to comply with the Guidelines and to be authorized for discharge.” Therefore, the failure to apply the GLTM guidelines also equates to a failure to properly apply the ITM guidelines.

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.

6. The Corps’ Obligation to Pay Compliance and Operation/Maintenance Costs

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 with the state and implement other alternative methods of disposal, it has the right, and, .in fact, the obligation to require affected non-federal parties to bear any cost for such alternatives above and beyond what is approved by the agency under the Federal Standard. (AR-SUPP0000001)(“I am not authorized under 33 C.F.R. section 337.2 to use federal funds to place material in a manner that is inconsistent with the Federal standard determination”). There is, however, no statutory authority for such a claim, and the Corps’ own regulations do not provide any basis for claiming such a right. While there may be an argument that the Corps cannot be forced to spend money it does not have, the idea that it does not have pay the costs of complying with State water quality standards, as interpreted by the State, when Congress has allocated suffi