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

Citation833 F.3d 1274
Decision Date12 August 2016
Docket NumberNo. 15–14745,15–14745
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.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

James M. Hecker, Public Justice, PC, Washington, DC, Catherine Wannamaker, Southern Environmental Law Center, Atlanta, GA, Eva Lovelace Dillard, Black Warrior Riverkeeper, Inc., Birmingham, AL, for PlaintiffAppellant Black Warrior Riverkeeper, Inc.

James M. Hecker, Public Justice, PC, Michael Senatore, Defenders of Wildlife, Washington, DC, Catherine Wannamaker, Southern Environmental Law Center, Atlanta, GA, Eva Lovelace Dillard, Black Warrior Riverkeeper, Inc., Birmingham, AL, for PlaintiffAppellant Defenders of Wildlife.

David R. Boyd, Montgomery, AL, Philip Stephen Gidiere, III, Joel Iverson Gilbert, Adam Kent Israel, Birmingham, AL, David Welles Mitchell, Washington, DC, Balch & Bingham, LLP, for IntervenorsAppellees Alabama Coal Association, MS & R Equipment Co., Inc., Reed Minerals, Inc., Twin Pines, LLC, and Walter Minerals, Inc.

Michael Thomas Gray, U.S. Department of Justice c/o U.S. Army Corps of Engineers, Jacksonville, FL, Paul Cirino, Leslie M. Hill, U.S. Department of Justice, Ruth Ann Storey, USDOJ Environmental & Natural Resources Division, Washington, DC, for DefendantsAppellees.

Before TJOFLAT and MARCUS, Circuit Judges, and STEELE,* District Judge.

MARCUS

, Circuit Judge:

In this appeal, we consider—for the second time—whether the United States Army Corps of Engineers' (Corps) 2012 decision to reissue Nationwide Permit 21 (“NWP 21”), a general permit regulating discharge of dredged or fill materials into navigable waters by surface coal mining operations, was arbitrary and capricious. Under Section 404 of the Clean Water Act (“CWA”), the Corps may authorize the discharge of fill materials into navigable waters of the United States by issuing a “general permit” only if those activities will result in minimal individual and cumulative adverse effect on the aquatic environment.

See 33 U.S.C. § 1344(e)(1)

. And the National Environmental Policy Act (“NEPA”) requires that federal agencies evaluate whether their proposed actions are likely to have a significant impact on the environment. See 42 U.S.C. § 4332. The 2012 NWP 21 imposes strict discharge limits on all new surface mining activities, but grandfathers in activities approved under a previous iteration of NWP 21 so long as they do not exceed previously approved discharge levels and meet other conditions imposed by a regional Corps official. At the headwaters of this litigation, Black Warrior Riverkeeper, Inc., and Defenders of Wildlife (collectively Riverkeeper), two concerned environmental groups, filed suit under the Administrative Procedure Act, 5 U.S.C. § 706, claiming that the Corps' decision to reissue NWP 21, as well as its environmental impact findings under the CWA and NEPA, were arbitrary and capricious.

The first time around, the district court granted summary judgment to the Corps and Riverkeeper appealed. However, on the eve of oral argument, the Corps admitted that it had failed to consider certain important information in reaching its decision, so we remanded the case to the district court, which in turn remanded it to the Corps for further review. After considering the omitted data, the Corps reaffirmed its decision to issue NWP 21. Riverkeeper renewed its challenges, and the district court once again granted final summary judgment in favor of the Corps. Riverkeeper again appeals, arguing that the Corps' decision to treat new and old activities differently can't hold water. After thorough review and with the benefit of oral argument, we affirm.

I.
A.

As we explained the first time we heard this case, see Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs., 781 F.3d 1271, 1275–78 (11th Cir. 2015)

, Riverkeeper's challenge involves several complex statutory and regulatory schemes designed, in substantial measure, to ensure that federal agencies conduct a thorough assessment of the environmental impacts of their proposed actions. The Clean Water Act prohibits the “discharge of any pollutant” into “navigable waters” unless in compliance with specified provisions of the Act. 33 U.S.C. §§ 1311(a), 1344(a) ; see also U.S. Army Corps of Eng'rs. v. Hawk e s Co., Inc., ––– U.S. ––––, 136 S.Ct. 1807, 1811, 195 L.Ed.2d 77 (2016). “Pollutant” includes “rock” and “sand,” 33 U.S.C. § 1362(6), and [n]avigable waters” encompass all “waters of the United States,” id.§ 1362(7). Despite the CWA's general prohibition on the discharge of pollutants, Section 404 of the Act expressly authorizes the Secretary of the Army, through the Corps, to regulate discharges of dredged or fill material—a subset of “pollutants”—into waters of the United States through the issuance of permits. See 33 U.S.C. § 1344. 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).

The Corps reviews “individual” permit applications on a case-by-case basis under Section 404(a). Id.§ 1344(a)

. Individual permits may be issued or denied after a review involving, among other things, site-specific documentation and analysis, opportunity for public hearing, public interest review, and a formal determination that the permit is lawful and warranted. See 33 C.F.R. § 323.3 (specifying activities requiring permits); 33 C.F.R. pts. 320, 323, 325 (policies and procedures for permit processing). Issuing an individual permit “requires a resource-intensive review that entails submission of voluminous application materials, extensive site-specific research and documentation, promulgation of public notice, opportunity for public comment, consultation with other federal agencies, and a formal analysis justifying the ultimate decision to issue or refuse the permit.” Crutchfield v. County of Hanover, 325 F.3d 211, 214 (4th Cir. 2003)

.

To avoid the burden of individual permit evaluations, Congress authorized the Corps to issue general permits to cover categories of discharges that, as a group, have only minimal impacts on the waters of the United States. H.R. Rep. No. 95–830, at 98 (1977). General permits may be issued “on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material” by the Corps' Chief of Engineers or a District Engineer, which is a regional official, but only after an extensive administrative process and analysis at the national or regional level. 33 U.S.C. § 1344(e)(1)

. Before issuing a general permit, then, the Corps must provide public notice and an opportunity for a hearing. Id. And before it can be issued, the Corps must determine that the proposed general permit meets three conditions: the activities authorized by the permit must (1) be “similar in nature,” (2) cause only “minimal adverse environmental effects when performed separately,” and (3) “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 40 C.F.R. pt. 230 (2014).

After performing this evaluation, the Corps must make a written determination of the effects of a proposed activity “on the physical, chemical, and biological components of the aquatic environment.” 40 C.F.R. § 230.11

. The decision document must provide specific documentation showing that each of the § 1344(e) conditions has been met, and the evaluation “must be completed before any General permit is issued.” See 40 C.F.R. § 230.7(b).

The Corps is also required to comply with the National Environmental Policy Act. NEPA serves the dual purpose of informing agency decisionmakers of the environmental effects of proposed federal actions and ensuring that relevant information is made available to members of the public so that they “may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)

. NEPA's mandate to agencies is “essentially procedural.... It is to insure a fully informed and well-considered decision....” Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Thus, “it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Robertson, 490 U.S. at 350, 109 S.Ct. 1835. NEPA requires federal agencies to prepare 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) ; 33 C.F.R. § 330.5(b)(3). 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. Seeid.§ 1501.4(c)

. Otherwise, it issues a Finding of No Significant Impact. Id.§ 1501.4(e).

B.

This case involves a challenge to Nationwide Permit 21 (“NWP 21”), a general permit issued by the Corps. On February 21, 2012, after affording the public the opportunity to participate in an administrative process that included notice and comment, the Corps issued fifty nationwide permits, including ...

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