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

Decision Date21 May 2014
Docket NumberCase No. 2:13–CV–02136–WMA.
Citation23 F.Supp.3d 1373
PartiesBLACK WARRIOR RIVERKEEPER, INC., et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants. The Alabama Coal Association, et al., Intervenor–Defendants.
CourtU.S. District Court — Northern District of Alabama

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

Paul Cirino, Leslie M. Hill, U.S. Department of Justice, Ruth Ann Storey, U.S. Department of Justice, Environment & Natural Resources, Washington, DC, for Defendants.

Adam Kent Israel, David R. Boyd, Joel I. Gilbert, P.S. Gidiere, III, Balch & Bingham LLP, Birmingham, AL, for IntervenorDefendants.


WILLIAM M. ACKER, JR., District Judge.

Plaintiffs instituted this action to challenge the 2012 reissuance of Nationwide Permit 21 (“NWP 21”), a five-year general permit issued pursuant to the Clean Water Act, 33 U.S.C. § 1344(e) (“CWA”). NWP 21 authorizes surface coal mining operations to discharge dredged or fill material into waters of the United States if the operations meet certain requirements. In the 2012 version of NWP 21, the requirements differ for operations that were authorized under the previous general permit. Plaintiffs claim that the different requirements for previously authorized operations violate the CWA and the National Environmental Policy Act, 42 U.S.C. §§ 4321 –47 (“NEPA”), and that defendants' issuance of 2012 NWP 21 with this provision violates the Administrative Procedure Act, 5 U.S.C. §§ 701 –06 (“APA”).

Three motions are before the court: plaintiffs' motion for summary judgment, Doc. 45; defendants' motion for summary judgment, Doc. 63; and intervenors' motion to dismiss for lack of subject matter jurisdiction or, in the alternative, motion for summary judgment, Doc. 65. For the reasons stated below, the court will deny intervenors' motion to dismiss and plaintiffs' motion for summary judgment, but will grant defendants' and intervenors' motions for summary judgment.


The parties acknowledge that this case rests primarily on the administrative record, and they do not dispute the underlying material facts. Those facts, centering on plaintiffs' standing, and the administrative framework are detailed below.

I. Facts Related to Standing

Plaintiff Black Warrior Riverkeeper, Inc., (Riverkeeper) is a nonprofit corporation dedicated to protecting and restoring the Black Warrior River and its tributaries. Plaintiff Defenders of Wildlife (“Defenders”) is a nonprofit organization dedicated to protecting native wild animals and plants and to preserving their natural habitats. Plaintiffs' standing to bring suit depends on, inter alia, the interests of their members. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Intervenors do not dispute the factual allegations supporting plaintiffs' members' interests, only whether those allegations satisfy the requirements of standing.

Plaintiffs' members1 use and enjoy waters downstream from surface mine sites in the Black Warrior River watershed. Docs. 9–12 to 9–18; Howell Dep. 47:12–19; 48:4–7. Their activities include swimming, eating fish caught in the water, and studying organisms that live in or near the water. Plaintiffs' members have personally observed that water downstream from the mine sites has impaired water quality. E.g., Brooks Dep. 57–56 (observed [dis]colored water coming out of the mine” that “didn't look that way upstream of the discharge point”). Water downstream from the mine sites also appears clouded with stirred-up sediment and silt. This impaired water quality decreases plaintiffs' members' aesthetic and recreational enjoyment, reduces their opportunities to observe wildlife, and causes them concern about ingesting the water and fish caught in the water.

II. Administrative Framework

Plaintiffs claim that paragraph (a) of the 2012 reissuance of Nationwide Permit 21 violates the CWA, the NEPA, and that defendants' conduct in issuing 2012 NWP 21 violates the APA. This section describes the roles of the CWA and the NEPA in defendants' issuance of a nationwide general permit and reviews the specific provisions of NWP 21.

Clean Water Act

Defendant the United States Corps of Engineers (Corps) may authorize discharge of pollutants under the CWA by issuing either individual or general permits. 33 U.S.C. § 1344. Individual permits require site-specific documentation and analysis, while a general permit authorizes all activities that fall under its conditions without the need to obtain separate authorization. Id. The present case concerns a general permit.

The Corps may issue general permits for a period of no more than 5 years on a state, regional, or nationwide basis after public notice and opportunity for hearing. Id. at § 1344(e). The Corps may authorize a general permit only if it determines that the activities at issue “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.” Id. The cumulative effects analysis required by this provision has a national level and a local level. At the national level, the Corps first analyzes more than 15 different factors that could be affected by a general permit. 40 C.F.R. § 230. Based on this analysis, the Corps makes a written determination of the effects of a proposed activity, which the Corps includes in a Decision Document. Id. at § 230.11. At the local level, the district engineer evaluates the general permit from a regional perspective and prepares a Supplemental Decision Document, which can modify, suspend, or revoke the permit in that region. 33 C.F.R. § 330.4(e)(1). The district engineer may use his or her discretion to require mining activities to proceed under individual permits if those activities would have more than minimal adverse environmental effects in a particular region.

National Environmental Policy Act

Before issuing a general permit, the Corps must conduct two analyses pursuant to the NEPA: a public interest analysis and a cumulative effects analysis.2 33 C.F.R. §§ 320.4(a)(1)-(2), 330.5(a)(3). Plaintiffs focus on the cumulative effects analysis.

NEPA regulations define cumulative effects as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7. The Corps analyzes the cumulative effects of a general permit in an Environmental Assessment (“EA”). See id. at § 1501.4. Depending on whether the EA indicates that the general permit will significantly affect the environment, the Corps either continues its analysis with the more detailed Environmental Impact Statement (“EIS”)or issues a Finding of No Significant Impact. See id. at §§ 1501.4, 1508.13. Most, if not all, activities covered by a general permit require only an EA because the threshold for authorizing general permits—having minimal adverse environmental effects—falls short of the threshold that triggers an EIS—“major federal action significantly affecting the quality of the human environment.” Doc. 63–5, NWP002722.

Nationwide Permit 21

NWP 21 allows surface coal mining operations to discharge certain dredged or fill material into waters of the United States. The Corps issued revised versions of NWP 21 in 2007 and 2012. The 2007 version did not include any limits on the length of streams that could be filled. 72 Fed.Reg. 11092 (Mar. 12, 2007). The Corps gave public notice of proposals regarding NWP 21 in the Federal Register on February 16, 2011. Riverkeeper submitted its comments on NWP 21 in a letter dated April 18, 2011, including its objections to Option 2, which the Corps eventually issued as 2012 NWP 21. See NWP024264–NWP024279. Defenders submitted its comments in a letter on the same date and objected to multiple general permits under the CWA, although not NWP 21 specifically. See NWP023613–NWP023631, NWP024458–NWP024476 (duplicate). The 2012 version was issued on February 18, 2012, and became effective March 19, 2012. 77 Fed.Reg. 10184, 10184 (Feb. 21, 2012). Paragraphs (a)3 and (b) of 2012 NWP 21 divide activities into two types and establish different requirements. Those paragraphs appear in full below because the different requirements are central to the case.

(a) Previously Authorized Surface Coal Mining Activities. Surface coal mining activities that were previously authorized by the NWP 21 issued on March 12, 2007 (see 72 FR 11092 ), are authorized by this NWP, provided the following criteria are met:
(1) The activities are already authorized, or are currently being processed by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977 or as part of an integrated permit processing procedure by the Department of Interior, Office of Surface Mining Reclamation and Enforcement;
(2) The permittee must submit a letter to the district engineer requesting re-verification of the NWP 21 authorization. The letter must describe any changes from the previous NWP 21 verification. The letter must be submitted to the district engineer by February 1, 2013;
(3) The loss of waters of the United States is not greater than the loss of waters of the United States previously verified by the district engineer under the NWP 21 issued on March 12, 2007 (i.e., there are no proposed expansions of surface coal mining activities in waters of the United States);
(4) The district engineer provides written verification that those activities will result in minimal individual and cumulative adverse effects and are authorized by NWP 21, including currently applicable regional conditions and any activity-specific

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