Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, Case No. 2:15-cv-01893-JEO

CourtUnited States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
Writing for the CourtJohn E. Ott, Chief United States Magistrate Judge
Citation354 F.Supp.3d 1253
Docket NumberCase No. 2:15-cv-01893-JEO
Decision Date14 December 2018
Parties BLACK WARRIOR RIVERKEEPER, INC., et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, and Global Met Coal (USA) Corp., Defendant-Intervenor.

354 F.Supp.3d 1253

BLACK WARRIOR RIVERKEEPER, INC., et al., Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants,
and
Global Met Coal (USA) Corp., Defendant-Intervenor.

Case No. 2:15-cv-01893-JEO

United States District Court, N.D. Alabama, Southern Division.

Signed December 14, 2018


354 F.Supp.3d 1257

April Lipscomb, Catherine Wannamaker, Southern Environmental Law Center, Atlanta, GA, Eva L. Dillard, Black Warrior Riverkeeper, Inc., Sarah Stokes, Southern Environmental Law Center, Birmingham, AL, for Plaintiffs.

Meredith Flax, U.S. Department of Justice ENRD/Wildlief & Marine Resources Section, Paul Cirino, U.S. Department of Justice Environmental Defense Section, H. Hubert Yang, US Department of Justice, Washington, DC, for Defendants.

Elizabeth Jones Flachsbart, Joel Iverson Gilbert, Adam Kent Israel, Steven C. Corhern, Thomas G. DeLawrence, Balch & Bingham LLP, Birmingham, AL, for Defendant-Intervenor.

MEMORANDUM OPINION

John E. Ott, Chief United States Magistrate Judge

This case involves the issuance of a permit by the United States Army Corps of Engineers ("Corps") for the Black Creek Mine pursuant to Section 404 of the Clean Water Act ("CWA"). The permit authorizes Global Met Coal Corporation ("Global Met") to discharge dredge or fill material into waters of the United States, specifically Crooked Creek and the Locust Fork of the Black Warrior River, in Jefferson County, Alabama, in connection with surface coal mining operations. Plaintiffs Black Warrior Riverkeeper, Inc. and Defendants of Wildlife contend the permitting violates the Endangered Species Act ("ESA"), 16 U.S. C. §§ 1531 - 1544, as well as the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 - 4370f.1

354 F.Supp.3d 1258

Plaintiffs ask the court2 to vacate and remand the permit for compliance with these statutes.

The court has before it three motions for summary judgment. Plaintiffs filed a motion for summary judgment (doc. 54), and each Defendant filed a cross motion for summary judgment, (docs. 59, 61). All motions are fully briefed, (docs. 55, 58, 59-1, 60, 62-64), and ripe for decision. For the reasons that follow, Plaintiff's motion for summary judgment is due to be denied and Defendants' motions for summary judgment are due to be granted.

I. REGULATORY FRAMEWORK

Two statutes are at play in this case, the ESA and the NEPA. Before diving into the factual and procedural background of the case, the court first discusses the underlying regulatory framework for the permit decision at issue.

A. The Endangered Species Act

The ESA charges federal agencies with the task of carrying out the Congressional policy of conserving endangered or threatened plant and animal species. 16 U.S.C. § 1531(b). Section 4 of the ESA directs the Secretaries of the Interior and Commerce to determine whether a species should be listed as either "endangered" or "threatened." 16 U.S.C. § 1533. It also directs them to designate critical habitats for such listed species to the "maximum extent prudent and determinable." 16 U.S.C. § 1533(a)(3)(A).

To that end, section 7 of the ESA requires every federal agency to insure that its actions are not likely to "jeopardize the continued existence of any species listed as endangered or threatened or result in the destruction or adverse modification of habitat of such species...." 16 U.S.C. § 1536(a)(2). If the agency proposing the action ("action agency") determines that its action will have "no effect" on listed species or critical habitat, no consultation is required. See 50 C.F.R. § 402.14(a). If, however, the action agency determines that its action "may affect" a listed species or critical habitat, it must consult informally or formally with either the Fish and Wildlife Service ("the Service") or the National Marine Fisheries Service ("NMFS"), depending on the species at issue. 50 C.F.R. § 402.14(a) - (b).

Informal consultation is "an optional process that includes all discussions, correspondence, etc., between [an action agency and consulting agency], designed to assist the [action] agency in determining whether formal consultation ... is required." 50 C.F.R. § 402.13(a). "If during informal consultation it is determined by the [action] agency, with the written concurrence of the [consulting agency], that the action is not likely to adversely affect listed species or critical habitat, [then] the consultation process is terminated, and no further action is necessary." Id. But if formal consultation is required, the consulting agency must prepare a biological opinion advising the action agency regarding "whether the action ... is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat." 50 C.F.R. § 402.14(g)(4).

B. The National Environmental Policy Act

Agencies are also required by statute to consider the environmental consequences

354 F.Supp.3d 1259

of their actions more generally. See Hill v. Boy, 144 F.3d 1446, 1449 (11th Cir. 1998) ; C.A.R.E. Now, Inc. v. Fed. Aviation Admin., 844 F.2d 1569, 1572 (11th Cir. 1988). While not a substantive environmental statute, NEPA creates "a particular bureaucratic decisionmaking process" and has "twin aims." Baltimore Gas & Elec. Co. v. Natural Res. Defense Council , 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). First, NEPA forces government agencies to "consider every significant aspect of the environmental impact of a proposed action." Id. (quotation omitted). Second, NEPA mandates that government agencies inform the public of the potential environmental impacts of proposed actions and explain how their decisions address those impacts. Id.

"NEPA establishes procedures that a federal agency must follow before taking any action." Sierra Club v. Van Antwerp , 526 F.3d 1353, 1360 (11th Cir. 2008). To comply with NEPA, an agency must first determine whether the action is a "major federal action[ ] significantly affecting the quality of human environment." 42 U.S.C. § 4332(c) ; Sierra Club v. U.S. Army Corps of Eng'rs , 295 F.3d 1209, 1214-15 (11th Cir. 2002). This determination generally requires preparation of an environmental assessment ("EA"). 40 C.F.R. § 1501.4 ; Hill, 144 F.3d at 1450 ). The EA is a brief and concise document containing sufficient evidence and analysis that allows the agency to determine whether to prepare a more detailed statement of environmental consequences, known as an Environmental Impact Statement ("EIS"). 40 C.F.R. §§ 1501.4, 1508.9. The EA must "include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. § 1508.9(b). This review includes both the direct and indirect impacts. 40 C.F.R. § 1508.8. "The EA should provide enough evidence and analysis to guide the agency to one of two conclusions: (1) a finding that the project will have a significant effect, or (2) a finding of no significant impact." Sierra Club , 295 F.3d at 1215. If the Corps decides that the environmental consequences of the action are not sufficient to justify the preparation of an EIS, the agency must prepare a finding of no significant impact "briefly presenting the reasons why an action ... will not have a significant effect on the human environment and for which an [EIS] therefore will not be prepared." 40 C.F.R. § 1508.13.

II. ADMINISTRATIVE RECORD AND PROCEDURAL HISTORY

A. The § 404 Permit for Black Creek Mine

In September 2012, Global Met applied for a § 404 permit for a surface coal mine, the Black Creek Mine, in Jefferson County, Alabama.3 (USACE11; USACE 3907-08).4 The Locust Fork River is on the

354 F.Supp.3d 1260

western border of the proposed mine and Crooked Creek surrounds the northern border and over half of the eastern border. (USACE69; see also Docs. 55-1 and 55-2).

In October 2012, the Service notified the Corps that nine listed aquatic species, and one candidate species, may live within or near the proposed Black Creek Mine. (USACE69, USACE3914). The Service also noted that six of the nine species, specifically the mussel species, had designated critical habitat abutting the mine in the Locust Fork. (USACE69).

Yokley Environmental Consulting Service surveyed the project area in October 2012. Yokley found suitable habitat for mussel and Cahaba shiners, as well as plicate rocksnails, a federally listed species, in the project area. (USACE3943). After reviewing the survey, in December 2012, the Service stated it was "troubled" by the current sediment load in Crooked Creek, (FWS49), and "expressed concern with the habitat quality in Locust Fork" and "recommended strict adherence to best management practices ... and proposed sediment controls (i.e. sediment ponds, diversion, silt fencing, etc.)." (USACE3914-15; FWS74-75). Additionally, the Service noted the 100-foot setback along both creeks and stated it "appreciate[d] any...

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3 practice notes
  • St. Johns Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, Case No. 3:17-cv-398-J-34MCR
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 26, 2020
    ...; Grand Canyon Trust v. F.A.A., 290 F.3d 339, 345 (D.C. Cir. 2002) ; Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 354 F. Supp. 3d 1253, 1274 (N.D. Ala. 2018) ; Ga. River Network v. U.S. Army Corps of Eng'rs, 334 F. Supp. 2d 1329, 1341 (N.D. Ga. 2003). The goal of the analys......
  • In re ACF Basin Water Litig., CIVIL ACTION FILE NO. 1:18-MI-43-TWT
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • August 11, 2021
    ...record and otherwise consistent with the standard of review." See Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs , 354 F. Supp. 3d 1253, 1267 (N.D. Ala. 2018). Under the APA, a court must set aside agency action, findings, and conclusions that it finds to be "arbitrary, capric......
  • In re ACF Basin Water Litig., Civil Action 1:18-MI-43-TWT
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • August 12, 2021
    ...record and otherwise consistent with the standard of review.” See Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 354 F.Supp.3d 1253, 1267 (N.D. Ala. 2018). Under the APA, a court must set aside agency action, findings, and conclusions that it finds to be “arbitrary, capriciou......
3 cases
  • St. Johns Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, Case No. 3:17-cv-398-J-34MCR
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 26, 2020
    ...; Grand Canyon Trust v. F.A.A., 290 F.3d 339, 345 (D.C. Cir. 2002) ; Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 354 F. Supp. 3d 1253, 1274 (N.D. Ala. 2018) ; Ga. River Network v. U.S. Army Corps of Eng'rs, 334 F. Supp. 2d 1329, 1341 (N.D. Ga. 2003). The goal of the analys......
  • In re ACF Basin Water Litig., CIVIL ACTION FILE NO. 1:18-MI-43-TWT
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • August 11, 2021
    ...record and otherwise consistent with the standard of review." See Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs , 354 F. Supp. 3d 1253, 1267 (N.D. Ala. 2018). Under the APA, a court must set aside agency action, findings, and conclusions that it finds to be "arbitrary, capric......
  • In re ACF Basin Water Litig., Civil Action 1:18-MI-43-TWT
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • August 12, 2021
    ...record and otherwise consistent with the standard of review.” See Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 354 F.Supp.3d 1253, 1267 (N.D. Ala. 2018). Under the APA, a court must set aside agency action, findings, and conclusions that it finds to be “arbitrary, capriciou......

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