Black Warrior Riverkeeper Inc. et al v. U.S Army Corps of Engineers et al
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 10/20/15. (SAC )
2015 Oct-20 PM 03:21
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BLACK WARRIOR RIVERKEEPER,
INC., et al.,
U.S. ARMY CORPS OF ENGINEERS, }
THE ALABAMA COAL ASSOCIATION, }
Case No. 2:13-CV-02136-WMA
Before the court are cross-motions for summary judgment1 as
reflected in the Revised Decision Document filed by defendant U.S.
Army Corps of Engineers on August 7, 2015 (Doc. 90).
After inviting comment by the parties (Doc. 92) through briefs
simultaneously filed August 31, 2015 (Doc. 93; Doc. 94; Doc. 95),
this court entered an order on September 4, 2015 acknowledging
plaintiffs’ motion for summary judgment separately attached to
their comment (Doc. 94) and deeming the comments by defendants and
intervenor-defendants to be renewed motions for summary judgment
Summary judgment must be granted if “there is no genuine
issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. Proc.
56(c). When disputed, the facts are presented in the light most
favorable to the non-moving party. See Baldwin County, Ala. v.
Purcell Corp., 971 F.2d 1558, 1563 (11th Cir. 1992).
(Doc. 96). Pursuant to this court’s briefing schedule, the parties
on September 21, 2015 filed their respective responses to the
motions of opposing parties (Doc. 97; Doc, 98; Doc. 99), and
plaintiffs filed a reply
on September 30, 2015 to defendants’ and
intervenor-defendants’ said responses. (Doc. 100).
fully briefed by all parties, the Rule 56 motions are now under
For the reasons stated below, plaintiffs’ motion will be
denied, and defendants’ and intervenor-defendants’ motions for
summary judgment will be granted.
On May 21, 2014 this court issued a memorandum opinion and
order published as Black Warrior Riverkeeper, Inc. v. Army Corps of
Eng’rs, 23 F. Supp. 3d 1373 (N.D. Ala. 2014).
It upheld as neither
arbitrary nor capricious under the Administrative Procedure Act
(“APA”) the Corps’ decision to issue a general nationwide permit
(“NWP”) to defendants allowing discharges from certain mining
activities into navigable waters (“NWP 21") pursuant to the Clean
Water Act (CWA) and the National Environmental Policy Act (“NEPA”).
Id. at 1387-93.
Amidst plaintiffs’ appeal to the Eleventh Circuit, and on the
eve of oral argument, the Corps admitted “that it underestimated
the number of acres of waters that may be impacted by NWP 21.”
Black Warrior Riverkeeper, Inc. v. Army Corps of Eng’rs, 781 F.3d
1271, 1288 (11th Cir. 2015).
In light of this admission, the
Eleventh Circuit remanded the case to this court with instructions
to “remand the matter to the Corps for a thorough reevaluation
[within one year] of the Corps’ CWA and NEPA determinations in
recalculated figure for the acreage of waters affected by NWP 21.”
Id. at 1291.
The Eleventh Circuit opined that after such a
reevaluation “the Corps may well conclude on remand that its
factual projections were indeed so erroneous that . . . [it] cannot
ensure the cumulative adverse effect of NWP 21 on the environment
will be minimal[,] [o]r, as the Corps suggests it may be able
readily to cure this defect in its explanation and reaffirm its
original decision.” Id. at 1289 (quotation omitted).
Consistent with the Eleventh Circuit’s instructions, this
court on June 22, 2015 entered an order remanding the matter to the
Corps for a “thorough reevaluation of the Corps’ CWA and NEPA
determinations in light of all of the relevant data, including the
Corps’ recalculated figure for the acreage of waters affected by
NWP 21.” (Doc. 84 at 1).
On August 7, 2015, the Corps filed its Revised Decision
Document, which corrected its calculation errors and reaffirmed its
original decision to issue NWP 21. (Doc. 90).
Revised Decision Document concluded:
After considering the revised estimates provided above in
accordance with 40 CFR 230.7(b)(3) [per the CWA], despite the
higher impact and compensatory mitigation amounts expected to
occur across the country during the five year period this NWP
is in effect, the Corps has determined that the individual and
cumulative adverse effects on the aquatic environment
resulting from the activities authorized by this NWP will be
minimal. Compliance with the terms and conditions of this NWP,
including the mitigation general condition (general condition
23), as well as compliance with regional conditions imposed by
division engineers and activity-specific conditions added to
NWP verifications by district engineers, will ensure that the
activities authorized by this NWP will result in no more than
minimal individual and cumulative adverse effects on the
aquatic environment. In addition to the other mitigation
measures required by the terms and conditions of this NWP,
compensatory mitigations may be required by district engineers
to offset losses of waters of the United States to further
ensure that the individual and cumulative adverse effects of
activities authorized by NWPs on the aquatic environment are
* * *
Based on the information in this document, including the
revised cumulative effects analyses in sections 4.3 and 6.2.2
[per NEPA], the Corps has determined that the issuance of this
NWP will not have a significant impact on the quality of the
(Doc. 90-2 at 17; 90-2 at 23) (emphasis added).
While all the
parties agree that the Corps has corrected its math error (Doc. 97
at 25; Doc. 98 at 2; Doc. 99 at 4), Riverkeeper continues to argue
that the Corps’ issuance of NWP 21 is arbitrary and capricious and
therefore violative of federal law (Doc. 98; Doc. 100).
substantial overlap in the requirements of NEPA and the CWA, both
the Revised Decision Document and the briefing by the parties
addressed these two statutes’ requirements together.
similarly considers arguments under both statutes together.
DIFFERENTIAL TREATMENT ERROR
In Riverkeeper’s prior arguments before this court and in its
appeal to the Eleventh Circuit under the Corps’ original decision
document, Riverkeeper argued that the Corps’ decision was arbitrary
and capricious because it contained a “differential treatment
error.” Black Warrior Riverkeeper, 23 F. Supp. 3d at 1387; Black
decision document for NWP 21 contained subsection NWP 21(a), a
provision grandfathering certain operations previously authorized
in a prior permit, and NWP 21(b), a provision that authorized
discharges to 1/2 acre, 300 linear feet, and expressly prohibiting
valley fills. (Doc. 63-5 at 2-3).
These three new requirements
contained in NWP 21(b) did not apply to the grandfathered provision
in NWP 21(a). (Doc. 63-5 at 2-3).
While the Corps’ original decision document determined that
the authorized activities would have minimal cumulative adverse
effects on the impacted aquatic environments, Riverkeeper argued
that certain language2 in the decision document expressing the
In support of its argument under the original decision
document, Riverkeeper pointed to three specific statements:
the new terms and conditions of this NWP, including the 1/2
acre and 300 linear foot limits, are necessary to ensure
that this NWP authorizes only those activities that have
minimal individual and cumulative adverse effects on the
* * *
[The Corps] determined that the changes to NWP 21 are
necessary to comply with the requirements of Section 404(e)
of the Clean Water Act.
* * *
The substantial changes in the terms and conditions of the
importance of these three new requirements, contradicted the Corps’
determination that NWP 21 as a whole, both NWP 21(a) and NWP 21(b),
Riverkeeper made to this court before its appeal and to the
capricious for the Corps to conclude, on the one hand, that the new
necessary to avoid significant environmental effects, but on the
other, to decline to apply them to projects reauthorized pursuant
to paragraph (a).” Black Warrior Riverkeeper, 781 F.3d at 1288.
Under the original decision document, this court rejected
conditions' logically mean all changes and all new terms and
conditions." Black Warrior Riverkeeper, 23 F. Supp. 3d at 1389.
determination for the singular purpose of correcting the Corps’
math error and recalculating the aquatic effect, the Court agreed
with this court insofar as "[t]he Corps' analysis . . . was based
reissued NWP 21 will ensure that the activities authorized
by this NWP result in minimal individual and cumulative
adverse effects on the aquatic environment.
(Doc. 46 at 25-26) (quoting the original decision document at 8,
individual reverification." Black Warrior Riverkeeper, 781 F.3d at
1289 (emphasis added).
treatment error” argument based on language in the Revised Decision
Document that is indistinguishably similar to the language it
attempted to recast in the original decision document. Reviewing
these statements in their proper context, from pages 6-7 of the
Revised Decision Document:
We have added the 1/2-acre limit, and the 300 linear foot
limit for the loss of stream bed, to make this NWP consistent
with many of the other NWPs (e.g., NWPs 29, 39, 40, 42, 43,
44, and 51). We have also added a prohibition against using
this NWP to authorize discharges of dredged or fill material
into waters of the United States to construct valley fills.
Such limits are necessary to constrain the adverse effects to
the aquatic environment to ensure compliance with the
statutory requirement that general permits, including NWPs,
may only authorize those activities that have minimal
individual and cumulative adverse effects on the aquatic
environment. We do not believe it is efficient to rely on the
pre-construction notification process alone to ensure minimal
adverse environmental effects. Many other NWPs use a
combination of acreage and/or linear foot limits and preconstruction notification requirements to ensure compliance
with Section 404(e) of the Clean Water Act, as well as 33 CFR
322.2(f) and 33 CFR 323.2(h).
From page 7 of the Revised Decision Document:
Previous versions of NWP 21 did not have any acreage or linear
foot limits, and relied solely on the pre-construction
notification review process and permit conditions to reduce
adverse effects on the aquatic environment to satisfy the
minimal adverse environmental effects requirement for general
permits. We believe that approach is no longer appropriate for
future NWP 21 activities because of the inconsistency with
other NWPs, the possibility that larger losses of waters of
the United States might be authorized, and the difficulty of
documenting minimal adverse effect determinations for losses
of aquatic resource area and functions that exceed those
allowed in other NWPs. We note that part of the basis for the
earlier approach was the environmental review that occurs in
connection with obtaining a SMCRA permit, and that the SMCRA
regulations related to stream protection have changed since
the previous NWP 21 was issued. The new acreage and linear
foot limits will ensure that this NWP contributes no more than
minimal individual and cumulative adverse effects to the
aquatic environment, by limiting the amount of waters of the
United States that can be filled by each NWP 21 activity.
From page 20 of the Revised Decision Document:
The 300 linear foot limit for losses of stream bed is
generally necessary to ensure that NWP 21 authorizes only
those activities that result in minimal adverse effects on the
aquatic environment. However, that 300 linear foot limit may
be waived by the district engineer if the proposed activity
involves filling or excavating intermittent or ephemeral
stream beds, and the district engineer determines, in writing,
that that activity will result in minimal individual and
cumulative adverse effects on the aquatic environment. Agency
coordination for proposed losses of greater than 300 linear
feet of intermittent or ephemeral stream bed is intended to
provide information that will assist the district engineer in
making his or her minimal adverse effects determination.
From page 21 of the Revised Decision Document:
We have added a definition of the term "valley fill" to the
text of this NWP. While fewer surface coal mining activities
involving discharges of dredged or fill material into waters
of the United States would be authorized by NWP 21 when
compared to previous issued versions of this NWP, the new
terms and conditions of this NWP, including the 1/2-acre and
300 linear foot limits, are necessary to ensure that this NWP
authorizes only those activities that have minimal individual
and cumulative adverse effects on the aquatic environment. If
the construction of larger sediment ponds does not qualify for
NWP 21 authorization, activities maybe authorized by
individual permits or applicable regional general permits.
From page 23 of the Revised Decision Document:
The Corps has determined that the changes to NWP 21 are
necessary to comply with the requirements of Section 404(e) of
the Clean Water Act. We have modified Option 2 by authorizing
activities verified under the 2007 NWP 21 (see paragraph (a)
of NWP 21), to provide an equitable transition to the new
limits in NWP 21 and reduce burdens on the regulated public.
The authority for the district engineer to waive the linear
foot limit for losses of intermittent and ephemeral streams if
the impacts are not more than minimal is also intended to
minimize regulatory burden.
While Riverkeeper interprets these statements to conclude that the
Corps differentially treated in its analysis NWP 21(a) and NWP
21(b), the Corps maintains that these statements, along with the
entire Revised Decision Document, demonstrate that the minimal
cumulative effects determination was for the entirety of NWP 21,
analyzing the cumulative impacts of both NWP 21(a) and NWP 21(b)
together as a “single new nationwide permit as a whole.” (Doc. 97
at 22-23) (emphasis added).
Consistent with this court’s earlier
interpretation of the Corps’ original decision document, under the
Revised Decision Document these similar references “logically mean
all changes and all new terms and conditions, or the Corps would
specify which change.” Black Warrior Riverkeeper, 23 F. Supp. 3d at
In addition to the reasons explained in this court’s prior
decision, this court offers the following additional reasons for
upholding NWP 21 under the CWA and NEPA as neither arbitrary nor
reasonable interpretation of its own regulations.” Sierra Club,
Inc. v. Leavitt, 488 F.3d 904, 912 (11th Cir. 2007); see Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410 (1945).
Courts must give
“deference to an agency's interpretation of its own ambiguous
regulation, even when that interpretation is advanced in a legal
brief. Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156,
2166 (2012) (citing Auer v. Robbins, 519 U.S. 452, 462 (1997)).
“[D]eference is likewise unwarranted when there is reason to
suspect that the agency's interpretation does not reflect the
agency's fair and considered judgment on the matter in question .
. . [such as] when the agency's interpretation conflicts with a
prior interpretation, or when it appears that the interpretation is
nothing more than a convenient litigating position, or a post hoc
rationalization advanced by an agency seeking to defend past agency
action against attack.” Id. at 2166 (quotes omitted).
While Riverkeeper dismisses the Corps’ “whole permit” theory
as an untenable and disingenuous “post-hoc litigation position”
(Doc. 100 at 7), the court must give deference to the Corps’
reasonable interpretation of ambiguities in the Corps’ own Revised
Specifically, the Corps reasonably interprets
its finding that stream limits are “necessary,” to logically mean
For purposes of deference under Auer, the Corps’ Revised
Decision Document is a “regulation.” See Sierra Club, Inc. v.
Bostick, 787 F.3d 1043, 1054 (10th Cir. 2015); Kentuckians for
the Commonwealth v. U.S. Army Corps of Eng’rs, 746 F.3d 698, 70809, n.3 (6th Cir. 2014); Snoqualmie Valley Pres. Alliance v. U.S.
Army Corps of Eng’rs, 683 F.3d 1155, 1164 (9th Cir. 2012).
Additionally, the Revised Decision Document was issued as part of
the general permitting process required by statute, 33 U.S.C. §
1344, it states the agency’s official position, and it was
published in the Federal Register.
“necessary for the entire NWP 21 permit as a whole,” not just for
NWP 21(b). (Doc. 97 at 26-27).
While the Corps’ interpretation
“comes to us in the form of a legal brief . . . that does not . .
Furthermore, the Corps’ consistent “whole permit” interpretation in
both the original decision document and now the Revised Decision
Document alleviates any possible concern that its position is a
interpretation, the Corps’ determination under the CWA or NEPA for
NWP 21 was neither arbitrary nor capricious.
Hard look review
Even if no deference is given to the Corps’ interpretation,
the Corps’ determination for NWP 21 under the CWA and NEPA took a
hard look at the entire record.
Under the APA, an agency action may be set aside when it is
found to be “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
reviewing court to engage in a substantial inquiry . . . a
thorough, probing, in-depth review.” Citizens to Pres. Overton
Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971).
Looking at the
whole administrative record, a “court will overturn an agency's
decision as arbitrary and capricious under ‘hard look’ review if it
suffers from one of the following: (1) the decision does not rely
on the factors that Congress intended the agency to consider; (2)
the agency failed entirely to consider an important aspect of the
problem; (3) the agency offers an explanation which runs counter to
the evidence; or (4) the decision is so implausible that it cannot
be the result of differing viewpoints or the result of agency
expertise.” Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d
1209, 1216 (11th Cir. 2002).
The Corps’ determination relied on the data and on the actual
use of NWP 21(a) and NWP 21(b) during the period from March 19,
2012 to March 12, 2015. (Doc. 90-2 at 14-15; Doc. 97 at 23).
NWP 21(a), “the Corps determined that 88 NWP 21(a) verifications
were issued, authorizing impacts to approximately 503 acres and
280,700 linear feet of waters of the United States . . . [and]
activities could be authorized over a five year period until NWP(b)
expires, resulting in impacts to approximately 6.5 acres and 17,000
linear feet of waters of the United States.” (Doc. 90-2 at 14-15).
For NWP 21(a) the Corps “required approximately 653 acres and
377,300 linear feet of compensatory mitigation to offset those
impacts.” (Doc. 90-2 at 14).
For NWP 21(b) the Corps approximated
“11.5 acres and 21,000 linear feet of compensatory mitigation would
be required to offset those impacts.” (Doc. 90-2 at 15).
at the effects of NWP 21(a) and NWP 21(b) as a whole permit, the
estimates provided above in accordance with 40 C.F.R. § 230.7(b)(3)
country during the five year period this NWP is in effect, the
Corps has determined that the individual and cumulative adverse
effects on the aquatic environment resulting from the activities
This conclusion by the Corps is reasonable and
“examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action including a rational connection between
the facts found and the choice made.” Motor Vehicle Mfrs. Ass'n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (quotation omitted).
determination based on its recalculated figures, Riverkeeper argues
that the dissimilar treatment of NWP 21(a) and NWP 21(b) indicates
that it is arbitrary and capricious. (Doc. 94 at 13). See Yetman v.
Garvey, 261 F.3d 664, 669 (7th Cir. 2001) (“A long line of
precedent has established that an agency action is considered
arbitrary when the agency has offered insufficient reasons for
impacts, the record indicates that the Corps also relied on the
compensatory mitigation requirements in both NWP 21(a) and NWP
21(b) for its conclusions. (Doc. 92-2 at 16-17; Doc. 97 at 26).
More importantly, Riverkeeper overlooks the fact that under NWP
21(b) the “300 linear foot limit may be waived by the district
engineer if the proposed activity involves filling or excavating
intermittent or ephemeral stream beds, and the district engineer
determines, in writing, that that activity will result in minimal
environment.” (Doc. 90-1 at 20) (emphasis added).
As the Corps
explains in its Revised Decision Document (Doc. 90-1 at 11) and
engineer to tailor the conditions and requirements on a regional or
individual basis ensures minimal adverse aquatic effects.
the three new requirements in NWP 21(b) were certainly a component
part of the Corps determination, it did not exclusively rely on
To bolster the Corps’ findings, Intervenor-Defendants
attach an outside expert engineer’s affidavit and supporting
documentation (Doc. 99; Doc. 99-1; Doc. 99-2; Doc. 99-3); however
this court may only review the Corps’ findings based on the whole
administrative record. See Citizens to Pres. Overton Park, Inc.,
401 U.S. at 403 (finding litigation affidavits are not part of
the “whole record” and are therefore an inadequate basis for
determination was neither arbitrary nor capricious under the CWA
and NEPA because it “took a ‘hard look’ at the environmental
consequences of the proposed action.” Sierra Club, 295 F.3d at
The Chevron barrier
Finally, under the CWA, Congress delegated the task of issuing
general permits on a nationwide basis to the Secretary of the Army,
acting through the Chief of Engineers. 33 U.S.C. § 1344(d)-(e).
While Congress clearly defined certain aspects of this permit
authority, such as limiting general permits to a period of five
determination that dredging or filling activities “will cause only
discretion. 33 U.S.C. § 1344(e)(1). Acting within the scope of its
discretion, the Corps has promulgated regulations to guide and
define its minimally adverse effects determination specifically for
aquatic discharges of dredged or fill materials. See Restrictions
on Discharge, 40 C.F.R. § 230.10. While these regulations do not
prevent the Corps from having additional procedural and substantive
requirements, “all requirements in § 230.10 must be met.” Id.
“If Congress has explicitly left a gap for the agency to fill,
there is an express delegation
of authority to the agency to
elucidate a specific provision of the statute by regulation.”
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 843-44 (1984). “[I]f the statute is silent or ambiguous with
respect to the specific issue, the question for the court is
whether the agency's answer is based on a permissible construction
of the statute.” Nat'l Ass'n of Home Builders v. Defenders of
Wildlife, 551 U.S. 644, 665 (2007) (quoting Chevron, 467 U.S. at
842-43). “Judges are not experts in the field, and are not part of
responsibilities for assessing the wisdom of such policy choices
and resolving the struggle between competing views of the public
responsibilities in the political branches.” Teper v. Miller, 82
F.3d 989, 998 (11th Cir. 1996) (quoting Chevron, 467 U.S. at 866).
Riverkeeper argues that while in pre-2012 general permits the
Corps may have relied on lesser permit requirements to find minimal
cumulative adverse effects, now such lesser requirements are “no
longer appropriate.” (Doc. 100 at 9) (quoting Doc. 90-1 at 6-7).
In essence, Riverkeeper interprets the Revised Decision Document to
require all general permits post-2012 to include the three new
requirements in NWP 21(b) for all discharges in order for the Corps
to make a minimal cumulative effects determination.5
Nowhere does Riverkeeper argue that the repeat inclusion
of these three new requirements in general permits post-2012
constitute a rule adopted outside of notice-and-comment
rulemaking. “[D]eference under Chevron . . . does not necessarily
require an agency’s exercise of express notice-and-comment
reading of the Revised Decision Document would require this court
to effectively graft into the Corps’ regulations the three new
minimally adverse effects determination by the Corps.
current regulations guiding and defining its minimally adverse
requirements, are “a permissible construction of the statute.”
Chevron, 467 U.S. at 843.
Additionally, the Corps’ decision to
“provide an equitable transition to the new limits in NWP 21 and
reduce burdens on the regulated public” (Doc. 90-1 at 16) is not
only within its discretion as an agency, but entirely consistent
with agency regulations that require the Corps to consider numerous
factors, including economic and public interest considerations. See
General Policies for Evaluating Permit Applications, 33 C.F.R. §
An intrusion on those regulations by this court would
require the court to entirely ignore Chevron, which “importantly
guards against the Judiciary arrogating to itself policymaking
rulemaking power.” Edelman v. Lynchburg College, 535 U.S. 106,
114 (2002). For example, “[t]he interstitial nature of the legal
question, the related expertise of the Agency, the importance of
the question to administration of the statute, the complexity of
that administration, and the careful consideration the Agency has
given the question over a long period of time all indicate that
Chevron provides the appropriate legal lens through which to view
the legality of the Agency interpretation.” Barnhart v. Walton,
535 U.S. 212, 222 (2002); see NationsBank of N. Carolina, N.A. v.
Variable Annuity Life Ins. Co., 513 U.S. 251, 254-58 (1995).
Here however, the Corps has inconsistently, and for a short
period of time, applied these three requirements to general
properly left, under the separation of powers, to the Executive.”
City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1886 (2013)
(Roberts, C.J., dissenting).
Therefore, as a reasonable exercise
of its discretion in determining minimal adverse effects, the
Corps’ issuance of NWP 21 is neither arbitrary nor capricious under
the CWA or NEPA.
For the reasons detailed above, the court will by separate
order deny plaintiffs’ motion for summary judgment and grant
DONE this 20th day of October, 2015.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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