Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs

• Decision Date: 23 March 2015
• Docket Number: No. 14–12357.,14–12357.
• Citation: 781 F.3d 1271
• Parties: BLACK WARRIOR RIVERKEEPER, INC., Defenders of Wildlife, Plaintiffs–Appellants, v. U.S. ARMY CORPS OF ENGINEERS, Lt. General Thomas P. Bostick, U.S. Army Corps of Engineers, Col. Jon Chytka, U.S. Army Corps of Engineers, Mobile District, Defendants–Appellees, Alabama Coal Association, MS & R Equipment Co., Inc., Reed Minerals, Inc., et al., Intervenors–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

781 F.3d 1271

BLACK WARRIOR RIVERKEEPER, INC., Defenders of Wildlife, Plaintiffs–Appellants
v.
U.S. ARMY CORPS OF ENGINEERS, Lt. General Thomas P. Bostick, U.S. Army Corps of Engineers, Col. Jon Chytka, U.S. Army Corps of Engineers, Mobile District, Defendants–Appellees
Alabama Coal Association, MS & R Equipment Co., Inc., Reed Minerals, Inc., et al., Intervenors–Appellees.

No. 14–12357.

United States Court of Appeals, Eleventh Circuit.

March 23, 2015.

781 F.3d 1274

James M. Hecker, Public Justice, PC, Michael Senatore, Defenders of Wildlife, Washington, DC, Eva Lovelace Dillard, Black Warrior Riverkeeper, Inc., Birmingham, AL, Catherine M. Wannamaker, Atlanta, GA, for Plaintiffs–Appellants.

Michael Thomas Gray, U.S. Department of Justice c/o U.S. Army Corps of Engineers Office of Counsel, Jacksonville, FL, Paul Cirino, U.S. Department of Justice, Leslie M. Hill, U.S. Department of Justice ENRD, Washington, DC, Jenny Lynn Smith, U.S. Attorney's Office, Joel Iverson Gilbert, Adam Kent Israel, David Welles Mitchell, Balch & Bingham, LLP, Birmingham, AL, Ruth Ann Storey, Washington, DC, for Defendants–Appellees.

Appeal from the United States District Court for the Northern District of Alabama. D.C. Docket No. 2:13–cv–02136–WMA.

Before HULL and MARCUS, Circuit Judges, and TOTENBERG,^* District Judge.

Opinion

MARCUS, Circuit Judge:

In this complex environmental case, plaintiffs Black Warrior Riverkeeper and Defenders of Wildlife appeal from the district court's grant of final summary judgment to the U.S. Army Corps of Engineers, as well as to the Alabama Coal Association and several mining companies, which intervened in the proceedings below.¹ Riverkeeper challenges the 2012 version of Nationwide Permit 21 (“NWP

781 F.3d 1275

21”), a general permit that allows surface coal mining operations to discharge dredged or fill materials into navigable waters. Riverkeeper essentially argues that the Corps arbitrarily and capriciously found that NWP 21 would have no more than minimal environmental effects, in violation of both the Clean Water Act and the National Environmental Policy Act.

The district court first determined that Riverkeeper has standing to sue in federal court because its members suffered injury as a result of the Corps' decision to enact NWP 21. We agree that Riverkeeper has standing, and so affirm the district court's decision on this point. The district court also held that Riverkeeper's lawsuit was, nonetheless, barred by the equitable doctrine of laches. After thorough review, however, we conclude that the Intervenors have shown neither inexcusable delay on the part of Riverkeeper nor prejudice resulting from Riverkeeper's alleged delay. To the extent that Riverkeeper lagged in filing suit, its delay was slight and excused by its need to adequately investigate and prepare its claims in this complex case. Moreover, the Intervenors' modest showing of harm, stated only at the highest order of abstraction, does not outweigh the potential environmental benefits of allowing Riverkeeper to proceed. We, therefore, hold that the district court abused its considerable discretion in barring Riverkeeper's suit.

As for the merits of Riverkeeper's environmental claims, the district court concluded, after thorough deliberation, that the Corps' determinations that NWP 21 would have only “minimal cumulative adverse effect” on the environment, pursuant to the Clean Water Act, and “no significant impact” on the environment, pursuant to the National Environmental Policy Act, were neither arbitrary nor capricious. However, literally on the eve of oral argument in this Court, the Corps admitted that it had underestimated the acreage of waters that would be affected by the projects authorized under Nationwide Permit 21. In the face of this new and potentially significant change in the facts, we ordered the parties to provide supplemental briefing on the implications of the Corps' error. The Corps then conceded that the district court's decision must be reversed and the matter remanded to the Corps for further consideration based on a more accurate assessment of the potential impacts of NWP 21. We agree.

On remand, the Corps shall reconsider its conclusion that the environmental impacts of NWP 21 are minimal in light of all of the relevant data, including the Corps' recalculated figure for the acreage of waters affected by NWP 21. We expect that it will take the Corps no longer than one year to do so, and, therefore, remand this case to the district court with instructions to remand the matter to the Corps, and to determine whether any further relief may be required.

I.

This case involves several complex statutory and regulatory schemes designed, in substantial measure, to ensure that the federal government conducts a thorough assessment of the environmental impacts of its actions. Thus, under § 404 of the Clean Water Act (“CWA”), the Corps may issue permits for the discharge of dredged or fill material into navigable waters. 33 U.S.C. § 1344 (2012). These permits can take the form of either individual permits, § 1344(a), or general permits, which authorize certain categories of discharges on a state, regional, or nationwide basis, § 1344(e). Before issuing a general permit, however, the Corps must provide public notice and an opportunity for a hearing. Id. The Corps also must determine that

781 F.3d 1276

the activities authorized by the permit are “similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” Id. In determining whether the environmental effects of a general permit will be minimal, the Corps must consider a range of factors relating to the impact of discharges on aquatic ecosystems and the humans who use them, and must then document the environmental effects of the activities authorized by the permit in a decision document. See generally 40 C.F.R. pt. 230 (2014).

The Corps is also obligated to comply with the National Environmental Policy Act (“NEPA”). NEPA, in turn, requires an Environmental Impact Statement for any “major Federal action[ ] significantly affecting the quality of the human environment,” which can include nationwide permits issued by the Corps. 42 U.S.C. § 4332(2)(C) (2012) ; 33 C.F.R. § 330.5(b)(3) (2014). The agency first prepares an Environmental Assessment, which is essentially a preliminary account of the environmental effects of a proposed action. See 40 C.F.R. §§ 1501.4, 1508.9. If the Environmental Assessment suggests that the effects of the action are likely to be significant, the agency must issue the more detailed Environmental Impact Statement. See id. § 1501.4(c). Otherwise, it issues a Finding of No Significant Impact. Id. § 1501.4(e).

This case involves a challenge to Nationwide Permit 21, a general permit issued by the Corps. It authorizes “[d]ischarges of dredged or fill material into waters of the United States associated with surface coal mining and reclamation operations.” Reissuance of Nationwide Permits, 77 Fed.Reg. 10,184, 10,274 (Feb. 21, 2012). Surface coal mining involves the discharge of dredged or fill material in a variety of ways. To reach underground coal seams, surface mining operations must dig through and remove a mixture of soil, rock, and coal residue commonly referred to as “overburden,” which is replaced once the coal has been extracted. Excess overburden must be deposited somewhere else—occasionally filling or burying streams, or in the form of a much larger “valley fill,” which is exactly what it sounds like. In other cases, the coal seam runs underneath the stream itself, and the operation will “mine through” the stream. Mining operations also generate and discharge material when they create sediment ponds and build roads, processing plants, and other mining infrastructure. As a result of the mining process, drainage from the mining site, which contains substantial amounts of sediment, salt, and metals, can seep into and contaminate larger waterways. This runoff may continue for decades after the mine has closed. The discharge of dredged or fill material, therefore, may have consequences for water quality and the health of aquatic ecosystems throughout the entire watershed.

The Corps has long struggled to ensure that the environmental impacts of surface mining operations are minimal. Nationwide Permit 21 was first issued in 1982, see Interim Final Rule for Regulatory Programs of the Corps of Engineers, 47 Fed.Reg. 31,794, 31,833 (July 22, 1982), and has subsequently been amended and reissued multiple times. The 2007 version did not place any limits on the length of streams that could be filled by authorized activities. See Reissuance of Nationwide Permits, 72 Fed.Reg. 11,092, 11,184 (Mar. 12, 2007). The Corps eventually became concerned that activities authorized by NWP 21 were resulting in greater environmental impacts than anticipated, and it suspended NWP 21 in six states in the Appalachian Region in 2010: Kentucky, Ohio, Pennsylvania,

781 F.3d 1277

Tennessee, Virginia, and West Virginia. Suspension of Nationwide Permit 21, 75 Fed.Reg. 34,711, 34,712 (June 18,...