Friends of Newport Harbor files another lawsuit against Newport Beach

The Friends of Newport Harbor has filed another lawsuit against Newport Beach and the U.S. Army Corps of Engineers over the planned confined aquatic disposal site in Newport Harbor.

The lawsuit, filed on Aug. 2 in Orange County Superior Court, has been assigned to Judge Peter Wilson. The complaint aims to enjoin city funding to construct and operate the confined aquatic disposal unit in lower Newport Harbor, where sediment unsafe for open ocean release would be stored.

Discussions on building the CAD date back to 2019 when mercury-tainted sediment was discovered in the turning basin and Lido Peninsula. Dredging needs to occur regularly in Newport Harbor to ensure safe navigation, with the U.S. Army Corps of Engineers responsible for the federal channels within the harbor.

Environmental groups, including the Friends of Newport Harbor, have long contended that the creation of the CAD is unsafe and have filed litigation against both the federal agency and the city in an effort to stay the project. The Friends of Newport Harbor alone has filed three separate lawsuits over the matter prior. Two of those suits remain active, while a third, filed over the Freedom of Information Act, has been dropped.

One of the suits was filed in federal court in April of this year, accusing violations of the National Environmental Policy Act and the Administrative Procedure Act, and another was filed in November in Orange County Superior Court.

As of June this year, the dredging for the CAD and its construction have been halted in agreement with OC Coastkeeper as the Corps “considers revisiting its National Environmental Policy Act (NEPA) analyses and Endangered Species Act (ESA) analyses, including whether consultation under the ESA is appropriate,” according to court documents.

City spokesman John Pope confirmed Tuesday that both the dredging — which has been partially completed — and the CAD remain on hold.

Dredged material from the partial dredge earlier this year was placed at Port of Long Beach’s Middle Harbor Fill Site.

The new lawsuit alleges that in February of this year the city approved a second memorandum of understanding that it would “fund a bigger CAD than the CAD it had approved in 2021 as well as additional dredging,” though documents from that meeting indicate that no additional funding would be approved by the city as the $10 million already promised toward the project would cover additional dredging.

The memorandum also gave City Manager Grace Leung the discretion to execute any other agreements with regard to the dredging or CAD project.

The U.S. Army Corps of Engineers said the additional memorandum was necessary for the materials dredged that are technically below federal channel limits within the footprint of the proposed disposal site.

By authorizing the use of its public funds by the Corps for additional dredging is “different, bigger, and more environmentally adverse than the CAD initially presented to the public and approved in 2021,” attorneys for Friends of Newport Harbor wrote. ... “The City Council and the City acted ultra vires and in violation of its public trust duties, illegally expended taxpayer funds, unlawfully delegated its duties as an elected decision-making body to a non-elected officers, and thereby also violated California Environmental Quality Act (“CEQA”) and due process.”

The lawsuit asks for a writ of mandate commanding the city and the City Council to vacate and withdraw approval of their funds for the CAD and the authorization of the city manager to execute any future agreements for the CAD, in addition to a stay of action as it relates to both the city and the Corps from implementing the site.

“This is petitioners’ third attempt to challenge the CAD project without any legal and factual support,” city staff said in a statement issued Tuesday. “The statutory deadline has expired to challenge the CAD project. The city is prepared to fully defend the City Council’s certification of the environmental impact report, which thoroughly analyzed all environmental impacts of the project, and the allocation of funds to improve water quality and navigation within Newport Harbor.”