Black Warrior Riverkeeper Inc. et al v. U.S Army Corps of Engineers et al

Filing 76

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 5/21/14. (SAC)

FILED
2014 May-21 PM 01:39
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BLACK WARRIOR RIVERKEEPER,
INC., et al.,

)
)
)
Plaintiffs,
)
)
v.
)
)
U.S. ARMY CORPS OF ENGINEERS, )
et al.,
)
)
Defendants.
)
)
THE ALABAMA COAL ASSOCIATION, )
et al.,
)
)
Intervenor-Defendants. )

Case No. 2:13-CV-02136-WMA

MEMORANDUM OPINION
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.
of

NWP

21,

the

requirements

differ for

In the 2012 version

operations

authorized under the previous general permit.
that

the

different

requirements

for

that

were

Plaintiffs claim

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.
BACKGROUND
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 (2000).
supporting

Intervenors do not dispute the factual allegations

plaintiffs’

members’

interests,

only

allegations satisfy the requirements of standing.
2

whether those

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.

1

Randy Palmer, Mark Bailey, Sam Howell, Stephen Guesman, and Cindy
Lowry are members of Riverkeeper. Docs. 9-12, 9-13, 9-16, 9-17, 9-18. Nelson
Brooke and Mark Johnston are members of both Riverkeeper and Defenders. Docs.
9-14, 9-15.

3

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
4

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

330.5(a)(3).

analysis.2

33

C.F.R.

§§

320.4(a)(1)-(2),

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

2

NEPA regulations use the words “impacts” and “effects” synonymously.
40 C.F.R. § 1508.8; see also Ky. Riverkeeper, Inc. v. Rowlette, 714 F.3d 402,
408 n.2 (6th Cir. 2013). For consistency, the court uses “cumulative effects
analysis” for both the NEPA and the CWA.

5

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
3

Plaintiffs call 2012 NWP 21(a) the “grandfather provision” based on
the preamble to the Federal Register Notice for 2012 NWP 21. Doc. 63-2,
NWP00011. The preamble has a section titled “Grandfather Provision for
Expiring NWPs,” which references 33 C.F.R. Pt. 330.6(b) and 2012 NWP 21(a).
Id. Defendants contend that the title refers only to 33 C.F.R. Pt. 330.6(b),
which is mentioned first. Plaintiffs disagree and attribute much significance
to the “grandfather provision” appellation. The court finds the preamble

6

establish different requirements.

Those paragraphs appear in full

below because the different requirements are central to the case.
(a)

(b)

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 conditions added to the NWP
authorization by the district engineer, such as
compensatory mitigation requirements; and
(5) If the permittee does not receive a written
verification from the district engineer prior to
March 18, 2013, the permittee must cease all
activities until such verification is received ...
Other Surface Coal Mining Activities. Surface coal mining
activities that were not previously authorized by the NWP
21 issued on March 12, 2007, are authorized by this NWP,
provided the following criteria are met:
(1) The activities are already authorized, or are

ambiguous on this point and deems both the preamble and the appellation
irrelevant to determining the legality of 2012 NWP 21(a). Therefore, the
court does not use the contested appellation.

7

(2)

(3)

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;
The discharge must not cause the loss of greater
than 1/2-acre of non-tidal waters of the United
States, including the loss of no more than 300
linear feet of stream bed, unless for intermittent
and ephemeral stream beds the district engineer
waives the 300 linear foot limit by making a
written determination concluding that the discharge
will result in minimal individual and cumulative
adverse effects. This NWP does not authorize
discharges into tidal waters or non-tidal wetlands
adjacent to tidal waters; and
The
discharge
is
not
associated
with
the
construction of valley fills. A “valley fill” is a
fill structure that is typically constructed within
valleys associated with steep, mountainous terrain,
associated with surface coal mining activities.

Doc. 63-5, NWP002701-02(emphases added).
In addition to the text of 2012 NWP 21, the Corps’ Decision
Document

contains

contentions.

other

information

critical

to

the

parties’

It discusses the Corps’ rationale for implementing

paragraphs (a) and (b); addresses questions and objections received
during the public notice and comment period; and includes the CWA
cumulative effects analysis, the NEPA public interest analysis, and
the NEPA cumulative effects analysis. See generally Doc. 63-5,
NWP002701-64.

Several of these topics will be described in more

detail as they arise in the below sections.
The district engineer has granted 41 reauthorizations in the
Black Warrior River watershed pursuant to 2012 NWP 21(a). Doc. 1,
¶ 54.

The 41 reauthorizations were granted in May 2012 (1), July

8

2012 (1), December 2012 (18), January 2013 (9), February 2013 (10),
March 2013 (1), and April 2013 (1). Doc. 9-1.

Plaintiffs filed the

present case on November 25, 2013.
DISCUSSION
This action is before the court for consideration of three
motions

after

extensive

briefing

and

submission

of

evidence.

Although the court found that plaintiffs have standing in its
earlier order denying a preliminary injunction, it admitted that
the challenge was a serious one.

The court revisits this issue and

begins by considering intervenors’ motion to dismiss for lack of
subject matter jurisdiction. Pursuant to the below discussion, the
court

finds

that

plaintiffs

have

standing

and

will

deny

intervenors’ motion to dismiss.
The court then proceeds to the motions for summary judgment,
first considering intervenors’ motion based on (A) laches; then
plaintiffs’ and defendants’ cross motions based on (B) the fiveyear term limit of CWA general permits; (C) the cumulative effects
analysis under the CWA; and (D) the Finding of No Significant
Impact under the NEPA. Intervenors filed an amicus brief and reply
brief in support of defendants’ motion for summary judgment, which
the court deems to be a joinder in defendants’ motion for summary
judgment.

The court finds that laches bars plaintiffs’ claims and

will grant summary judgment on that basis.

Even if laches does not

bar plaintiffs’ claims, the court finds, in the alternative, that

9

defendants and intervenors are entitled to summary judgment on all
counts.
I.

These findings are set forth in detail below.

Motion to Dismiss
Intervenors

jurisdiction

move

to

dismiss

pursuant

to

FED.

R.

for
CIV.

lack
P.

of

subject

12(b)(1)

matter

based

on

plaintiffs’ asserted lack of standing. Intervenors make a “factual
attack” on plaintiffs’ standing and rely on evidence extrinsic to
plaintiffs’ pleadings, specifically, the declarations and testimony
of plaintiffs’ members. See Makro Capital of Am., Inc. v. UBS AG,
543 F.3d 1254, 1258 (11th Cir. 2008) (quoting Morrison v. Amway
Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003)).

In responding to

a factual attack on standing, plaintiffs have the burden to prove
by a preponderance of evidence that the court has subject matter
jurisdiction. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.
1981) (binding).4

The court “‘is free to weigh the evidence and

satisfy itself as to the existence of its power to hear the case’
without presuming the truthfulness of the plaintiff’s allegations.”
Makro Capital, 543 F.3d at 1258 (quoting Morrison, 323 F.3d at
925).
The question of plaintiffs’ standing, as this court has
already conceded, is a very close one.

4

It has been thoroughly

All cases decided by the Fifth Circuit on or before September 30,
1981, are binding precedent in the Eleventh Circuit. Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). Paterson v.
Weinberger was decided on May 8, 1981. 644 F.2d at 523.

10

briefed by plaintiffs and intervenors. Defendants have not briefed
the question of standing but do assert as an affirmative defense in
their answer that plaintiffs lack standing. Doc. 60 at 60.

The

court finds that plaintiffs have shown standing and will deny
intervenors’ motion to dismiss.
Organizations, like plaintiffs, have standing to sue on behalf
of their members when the members would have standing to bring suit
individually, the members’ interests relate to the organization’s
purpose, and neither the claim nor the relief requested requires
individual participation by members. Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
Intervenors only dispute the first prong, that plaintiffs’ members
have standing to bring suit individually.
To establish standing for claims under the APA, an individual
plaintiff must satisfy both the Article III requirements and the
APA’s overlapping prudential principles. Bennett v. Spear, 520 U.S.
154, 162 (1997). Article III standing requires a plaintiff to show
that he has suffered an injury in fact that is fairly traceable to
the conduct complained of and that is likely to be redressable by
a favorable decision. Vermont Agency of Natural Res. v. United
States ex rel. Stevens, 529 U.S. 765, 771 (2000).

APA prudential

principles require a plaintiff to show that the complaint relates
to agency action and that the plaintiff has suffered either a
“legal wrong” or an injury within the “zone of interests” sought to
be protected by the statute that forms the basis of the complaint.
11

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990) (citing
Clarke v. Sec. Indus. Assn., 479 U.S. 388, 396–97 (1987)).
Plaintiffs

base

their

complaint

on

the

Corps’

purported

failure to abide by procedural requirements in issuing 2012 NWP 21,
which they claim has injured their members by impairing downstream
water quality and thereby decreasing their aesthetic enjoyment and
reducing their opportunities to observe wildlife.

Intervenors

counter by arguing (A) that CWA § 404 does not regulate water
quality, and that plaintiffs’ injuries more properly relate to CWA
§ 402; and (B) that plaintiffs’ members cannot show that their
injuries resulted from 2012 NWP 21, as opposed to previous mining
or unrelated activities.
plaintiffs’

standing

The court organizes the discussion of

according

to

these

two

issues

because

intervenors use these issues to argue against injury in fact,
traceability, redressability, and the APA prudential principles.
A.

CWA §§ 402 and 404
Intervenors’ first argument rests on the interplay between CWA

§§ 402 and 404.

They assert that § 404 regulates dredging and

filling activities for the sole purpose of minimizing the loss of
jurisdictional waters.

As support, intervenors point to the §

404(b)(1) Guidelines for assessing the effects of a general permit,
which

intervenors

claim

focus

mitigating the loss of waters.

on

minimizing

discharges

and

In contrast, § 402 regulates the

discharge of pollutants into jurisdictional waters. 33 U.S.C. §

12

1311.

Intervenors

claim

that

§

exclusively

402

regulates

downstream water quality, and any failure by the Corps pursuant to
CWA § 404 in issuing 2012 NWP 21 is unrelated to the water quality
injuries claimed by plaintiffs.
distinction

between

§§

402

Thus, pursuant to this asserted

and

404,

plaintiffs

cannot

show

causation, redressability, or that their injuries fall within the
zone of interests of § 404.
The CWA regulations do not depict as clear a distinction
between §§ 402 and 404 as intervenors describe.

The § 404(b)(1)

Guidelines require the Corps to evaluate the cumulative effects of
a general permit based on certain criteria.

Several criteria

directly involve the loss of waters, but several do not. See 40
C.F.R. § 230. Such criteria include “salinity gradients,” but also
“threatened

and

endangered

species,”

“other

wildlife,”

“water-related recreation,” “aesthetics,” and “recreational and
commercial fisheries.” 40 C.F.R. §§ 230.25-53.

Expanding on one

such criterion as an example, the effects considered for “other
wildlife” include “the loss or change of breeding and nesting
areas, escape cover, travel corridors, and preferred food sources
for resident and transient wildlife species associated with the
aquatic ecosystem,” which include “mammals, birds, reptiles, and
amphibians.” 40 C.F.R. § 230.32. This example criterion shows that
the Corps analyzes cumulative effects of § 404 permits beyond the
loss of waters alone and beyond the immediate point of discharge.
The wide-ranging § 404(b)(1) Guidelines do not fit intervenors’
13

assertion that § 404 concerns solely the loss of waters and not the
downstream water quality or any other secondary effects.
The limited persuasive cases on the distinction between §§ 402
and 404 do not clearly support as sharp a differentiation as
intervenors advocate.

The main case cited by intervenors merely

says in dicta that §§ 402 and 404 function as “two discrete
permitting systems.” See Friends of Crystal River v. EPA, 35 F.3d
1073, 1075 (6th Cir. 1994).

Such a statement might, but does not

clearly or necessarily, imply that § 402 exclusively regulates
downstream water quality. See id.

One case that touches on the

issue more directly is Kentucky Riverkeeper v. Midkiff, 800 F.
Supp.2d 846, 862 (E.D. Ky. 2011), rev’d on other grounds sub nom.
Kentucky Riverkeeper v. Rowlette, 714 F.3d 402 (6th Cir. 2013). In
Midkiff, mining company intervenors claimed that environmental
organization plaintiffs did not have standing because they brought
claims under § 404 instead of § 402.

The Midkiff court was not

persuaded that “only § 402 permits are designed to regulate water
quality,” and found that “Intervenors’ attempt to limit Plaintiffs’
members’ interests to the point of discharge fails to recognize how
the discharge of dredged or fill materials impacts downstream
waterways.” Id.

The Midkiff court determined that plaintiffs had

standing because their members alleged the kinds of injuries that
the Corps had identified as adverse environmental effects in its
Decision Documents. Id.

Although more briefly, another case

discussed a similar argument that plaintiffs injuries “caused by
14

downstream water quality impacts” would “fall under the zone of
interests protected by a § 402 [pollution discharge] permit and not
a § 404 fill permit.” Kentuckians for Commonwealth v. U.S. Army
Corps of Engineers, 963 F. Supp. 2d 670, 681 (W.D. Ky. 2013), aff'd
746 F.3d 698 (6th Cir. 2014).

The Kentuckians court said that it

“does not view the ‘zone of interests’ inquiry so narrowly” and
noted

that

the

plaintiffs

allege

injuries

to

their

health,

aesthetic, and recreational interests as well as to the water
quality. Id. (quotation omitted).

Collectively, these non-binding

cases suggest that injuries from water pollution alone might fall
exclusively under § 402, but that injuries involving broader
interests of the kinds identified in the Decision Document as being
adversely affected can confer standing to bring suit under § 404.
The court reiterates that the question of plaintiffs’ standing
is a close one, and intervenors ultimately may be correct that the
distinction between §§ 402 and 404 precludes plaintiffs’ standing.
But, until a binding court agrees with intervenors, this court does
not find that the CWA regulations and the limited non-binding cases
make the distinction sharp enough to dismiss plaintiffs’ claims on
this basis.
B.

Other Sources of Plaintiffs’ Injuries
Intervenors also contend that plaintiffs cannot prove that

mining activities authorized under 2012 NWP 21, as opposed to
previous mining or other activities, caused their injuries.

15

This

contention relates foremost to traceability and redressability.
“To show traceability in a Clean Water Act case, ‘[r]ather than
pinpointing the origins of the particular molecules, a plaintiff
must merely show that a defendant discharges a pollutant that
causes or contributes to the kinds of injuries alleged in the
specific geographic area of concern.’” New Manchester Resort &
Golf, LLC v. Douglasville Dev., LLC, 734 F. Supp. 2d 1326, 1333
(N.D. Ga. 2010) (quoting Friends of the Earth, Inc. v. Gaston
Copper Recycling Corp., 204 F.3d 149, 161 (4th Cir. 2000) (en banc)
(citing Public Interest Research Group of N.J., Inc. v. Powell
Duffryn Terminals Inc., 913 F.2d 64, 72 (3d Cir. 1990)).

The Corps

has recognized in the Decision Document that activities authorized
by 2012 NWP 21 can cause altered visual character of the water,
decreased quantity and quality of fish and wildlife habitat,
changed character of the land, reduced recreational benefits, and
increased

sediments

NWP002742-47.
in

the

areas

and

pollutants

in

the

water.

Doc.

63-5,

Plaintiffs’ members allege these types of injuries
downstream

from

the

surface

mining

activities

authorized by 2012 NWP 21. See Background (I) Facts Related to
Standing.

Therefore, plaintiffs’ injuries are fairly traceable to

2012 NWP 21.
Plaintiffs have shown redressability because vacatur of 2012
NWP 21, or 2012 NWP 21(a) more narrowly, would result in some
combination of the activities reauthorized under 2012 NWP 21(a)
shutting down, the Corps issuing a new general permit, or the
16

activities

reauthorized

individual permits.

under

2012

NWP

21(a)

applying

for

In each of these circumstances, plaintiffs

would gain an immediate cessation of discharges and a considerable
amount of time before further discharges.

Although a new general

permit or individual permits would still allow discharges, they
could involve stricter regulations or site-specific limitations on
the activities.

The prospects of a cessation of discharges,

stricter regulations, and/or site-specific limitations suffice to
show that plaintiffs’ injuries would likely be redressed by vacatur
of 2012 NWP 21 or 2012 NWP 21(a).
II.

Motions for Summary Judgment
To grant summary judgment, a court must determine that there

is no genuine dispute of material fact and that the movant is
entitled to judgment as a matter of law. FED. R. CIV. P. 56.

A

genuine dispute of material fact exists if “a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).

For the purposes of summary

judgment, the court views all admissible evidence in the light most
favorable

to

the

nonmoving

party

and

draws

all

reasonable

inferences in that party’s favor. Scott v. Harris, 550 U.S. 372,
378 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654,
655 (1962)).

The court's function does not extend to “weigh[ing]

the evidence and determin[ing] the truth of the matter” but is
limited to “determin[ing] whether there is a genuine issue for

17

trial.” Liberty Lobby, 477 U.S. at 249.
The parties do not dispute the material facts and acknowledge
that this case rests primarily on the administrative record.
Intervenors seek summary judgment based on (A) laches. Plaintiffs,
defendants, and intervenors seek summary judgment based on (B) the
CWA five-year term limit; (C) the CWA cumulative effects analysis;
and (D) the Finding of No Significant Impact under the NEPA.
A.

Laches
In addition to their joinder in defendants’ motion for summary

judgment, intervenors contend that laches bars plaintiffs’ claims.
Defendants invoke laches in their answer but do not join in
intervenors’ motion for summary judgment or argue for summary
judgment on this ground.

Intervenors’ argument on laches is well-

taken and should conclude the case, although the court will address
plaintiffs’, defendants’, and intervenors’ arguments based on the
CWA and the NWPA in the alternative.
Laches is an equitable doctrine that bars a plaintiff’s claims
if granting his requested remedy would be inequitable due to his
delay in filing suit. Envtl. Def. Fund, Inc. v. Alexander, 614 F.2d
474, 478 (5th Cir. 1980).

Laches applies when the moving party

shows “(1) a delay in asserting a right or claim; (2) that the
delay was not excusable; and (3) that there was undue prejudice to
the party against whom the claim is asserted.” Id.

Some circuits

disfavor applying laches in environmental cases and use a stricter

18

standard. See, e.g., Park Cnty. Res. Council, Inc. v. United States
Dep't of Agric., 817 F.2d 609, 617 (10th Cir. 1987), overruled on
other grounds, Vill. of Los Ranchos De Albuquerque v. Marsh, 956
F.2d 970, 971 (10th Cir. 1992).

The Eleventh Circuit has never

adopted such a strict standard. See Manasota-88, Inc. v. Thomas,
799 F.2d 687, 693 n.10 (11th Cir. 1986); Ecology Ctr. of La., Inc.
v. Coleman, 515 F.2d 860, 867-68 (5th Cir. 1975) (laches applied
normally to NEPA claims).
Before addressing the elements of laches in application to
this particular case, plaintiffs argue that laches should not apply
because equity cannot be used to defeat the will of Congress in
limiting CWA general permits to five-year terms.

This argument

rests on the proposition that the Corps extended authorizations
under 2007 NWP 21 for an additional five years when it granted
reauthorizations under 2012 NWP 21(a). As discussed in section (B)
below,

plaintiffs

proposition

and,

do
thus,

not

succeed

cannot

rely

in
on

showing
this

the

underlying

argument

for

the

purposes of laches.
Proceeding to the element of delay, plaintiffs argue that the
grants of reauthorizations provide the appropriate benchmark for
when plaintiffs had standing to challenge 2012 NWP 21 (a) and thus
when their claims became ripe.

In support, plaintiffs cite cases

under the National Forest Management Act. See Doc. 71 at 33.

More

relevant than the cited persuasive authority, the Eleventh Circuit
case on point says that the proper time to challenge higher-level
19

agency rules is at the site-specific stage because the sitespecific stage entails “discretionary actions” with “separate and
independent decisionmaking,” and only afterwards is the injury
sufficiently imminent and the controversy ripe. Wilderness Soc. v.
Alcock, 83 F.3d 386, 390 (11th Cir. 1996) (quoting Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 892 n.3 (1990)) (quotation marks
omitted).

Plaintiffs analogize5 to argue that it was reasonable

for them to wait until after the district engineer granted 2012 NWP
21(a) reauthorizations before bringing suit.

This court agrees

given that the district engineer conducts a separate cumulative
effects

analysis

and

has

discretion

to

require

operations

requesting reauthorizations to apply for individual permits or to
fulfill activity-specific conditions.6 However, the court notes
that

plaintiffs’

argument

relies

on

a

premise

inconsistent with the rest of their contentions.

logically
Plaintiffs

clearly do not assert for the purposes of their CWA and NEPA claims
that the district engineer engaged in independent decisionmaking
when reviewing reauthorizations, in which case plaintiffs’ injuries

5

The rule structures for the Corps’ CWA permits and the United States
Forest Service’s National Forest Management Act permits are not precisely the
same. Rather than parsing this analogy in detail, as plaintiffs do not, this
court takes Citizens for Better Forestry v. U.S. Dep't of Agric., 341 F.3d
961, 966 (9th Cir. 2003) and Wilderness Soc. v. Alcock, 83 F.3d 386, 390 (11th
Cir. 1996) as generally speaking to challenging higher-level agency rules at
subsequent, site-specific stages.
6

Plaintiffs may also have had difficulty showing standing if they had
filed suit before the grant of 2012 NWP 21(a) reauthorizations because their
standing depended on the as-yet unknown actions of third parties. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 562 (1992). Until someone sought a 2012
NWP 21(a) reauthorization and the district engineer granted it, the concrete
injuries to plaintiffs’ members might have proven too speculative. See id.

20

should have been sufficiently imminent when 2012 NWP 21 became
effective on March 19, 2012.
plaintiffs

could

have

Passing over that contradiction,

brought

suit

as

soon

as

a

single

reauthorization was granted in the Black Warrior River watershed
——as early as May 2012, but certainly by January or February 2013
when 29 and 39 reauthorizations had been granted, respectively.
Plaintiffs
February

2013,

do

not

when

a

address

the

substantial

delay
number

between
of

2012

January
NWP

or

21(a)

reauthorizations had been granted, and November 25, 2013, when
plaintiffs actually brought suit. Without any reason provided, the
court finds this delay of 9-10 months to be unexcused and, in fact,
inexcusable. See Envtl. Def. Fund, Inc. v. Alexander, 614 F.2d 474,
478 (5th Cir. 1980).
Predicated on an unexcused delay in asserting a claim, laches
also requires “undue prejudice to the party against whom the claim
is asserted.” Id. This element involves “balanc[ing] the equities,
considering both the expenditures which have been made by the
defendants and the environmental benefits which might result ...”
Save Our Wetlands, Inc. (SOWL) v. U.S. Army Corps of Engineers, 549
F.2d 1021, 1028 (5th Cir. 1977).

A binding Fifth Circuit case

found no undue prejudice when contract bidding to construct an
interstate highway had been completed but very little construction
had begun; no evidence was submitted about the importance of the
highway; and construction had not yet significantly affected the
highly productive and diverse ecosystem. Ecology Ctr. of La., Inc.
21

v. Coleman, 515 F.2d 860, 869 (5th Cir. 1975).

The Fifth Circuit

contrasted this situation with a district court case that properly
found undue prejudice when a highway construction was 25-30%
completed; defendant had expended vast sums of money and made
significant

progress

toward

public

transportation

goals;

and

construction had already damaged the park’s aesthetics. Id. at 86869 (citation omitted).
Applying this framework for undue prejudice to the present
case, intervenors’ expenditures and reliance since the dates of
their reauthorizations must be weighed against any environmental
benefits of invalidating 2012 NWP 21(a).

Intervenors present

evidence that they relied on their granted reauthorizations to
purchase mining equipment, hire mine workers, enter into various
contracts, make sales commitments to customers, Docs. 14-1 to 14-5;
and that at least some intervenors continued or initiated mine
development and acquired land, Doc. 14-4, ¶ 10.7

Intervenors do

not specify all of the consequences that 2012 NWP 21(a) being
invalidated would have on these commitments. Given that the mining
operations would shut down pending a new general permit or an
individual permit, both lengthy processes, the resulting lost
income and product would likely cause intervenors to at least

7

Intervenors’ reply brief mistakenly focuses on the harm, in general,
that would result if 2012 NWP 21(a) were vacated. See Doc. 73 at 15-17. For
the purposes of laches, it is irrelevant that a certain mine would have to lay
off employees if 2012 NWP 21(a) were vacated unless that harm only occurs
because of plaintiffs’ delay in bringing suit. The relevant prejudice derives
from intervenors’ reliance between the time of their reauthorizations and the
date of plaintiffs’ suit, not from the mere fact of vacatur.

22

breach some contracts and financing agreements.

Plaintiffs point

out that this evidence does not include dollar amounts or specific
dates, and does not provide details for all 38 mines held by
intervenors and their members.

Lack of specificity goes to weight

in the court’s equitable balancing, but plaintiffs do not dispute
the veracity of the declarations or present contrary evidence, so
the

facts

of

intervenors’

expenditures

and

reliance

remain

uncontested.
As for the environmental benefits, plaintiffs claim that
mining operations could fill over 27 miles of streams pursuant to
the 41 reauthorizations, more than ten times the 300-foot limit in
2012 NWP 21(b).

Plaintiffs argue that invalidating 2012 NWP 21(a)

would have environmental benefits by forcing mining operations to
comply with the 300-foot limit, which they assert the Corps has
found necessary to avoid more than minimal environmental effects.
Doc. 71 at 30-31.

The problem with this argument is two-fold.

First, the mining operations would not proceed under the 300-foot
limit, but would need either a new general permit or an individual
permit, so that plaintiffs’ calculation of the benefits proceeds
from a faulty premise.

This court also cannot predict which

approach the Corps would take if 2012 NWP 21(a) were invalidated.
Second, the Corps did not find the 300-foot limit the only way to
avoid more than minimal environmental effects.

Indeed, the Corps

could not have issued 2012 NWP 21 unless it found that operations
under 2012 NWP 21(a) would not have more than minimal effects——a
23

finding that plaintiffs dispute, as discussed below. See CWA §
1344(e).

This dispute and the two-fold problem with plaintiffs’

argument make the environmental benefits of invalidating 2012 NWP
21(a) uncertain and speculative.
Weighing

intervenors’

uncontested,

although

incomplete,

evidence of expenditures and reliance on the reauthorizations and
plaintiffs’ disputed evidence of environmental benefits, the court
finds that unfair prejudice has been shown.

Intervenors took

actions in reliance on the reauthorizations in the 9-10 months that
plaintiffs delayed before bringing suit.

The court knows that

intervenors would be badly hurt by a vacatur of 2012 NWP 21(a), but
cannot

say

whether

vacatur

would

benefit

plaintiffs.

Thus,

intervenors have shown unexcused delay and unfair prejudice, and
the court finds that laches bars plaintiffs’ claims.
B.

CWA Five-Year Term Limit
Plaintiffs

contend

that

the

Corps

implicitly

extended

authorizations under 2007 NWP 21 for five years when it granted
reauthorizations under 2012 NWP 21(a), and that this extension
violates the five-year term limit of general permits under the CWA.
Plaintiffs

further

contend

that,

because

this

extended

term

violates the CWA, the Corps’ conduct in issuing 2012 NWP 21 was
arbitrary and capricious under the APA.

The court finds that 2007

NWP 21 and 2012 NWP 21 satisfy the CWA procedural requirement that
general permits have five year terms, and the Corps’ issuance of

24

2012 NWP 21 was not arbitrary and capricious on this ground.
The APA permits the setting aside of an agency action only
where the action is found to be “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A).

The

arbitrary

and

capricious

standard

is

highly

deferential, and the court cannot substitute its judgment for that
of the agency as long as the agency’s conclusions are rational and
reasonably explained. Sierra Club v. Van Antwerp, 526 F.3d 1353,
1360 (11th Cir. 2008).

An agency action may be found arbitrary and

capricious if the agency relied on inappropriate factors, failed to
consider

important

aspects,

or

provided

explanations

either

contrary to the evidence or wholly implausible. See Miccosukee
Tribe of Indians of Florida v. United States, 566 F.3d 1257, 1264
(11th Cir. 2009).

Courts must give special deference when an

agency

predictions,

“is

making

within

its

area

of

special

expertise, at the frontiers of science ... as opposed to simple
findings of fact” Id. (quoting Balt. Gas & Elec. Co. v. Nat. Res.
Def. Council, 462 U.S. 87, 103 (1983)).
Section 404(e)(2) of the CWA provides that “[n]o general
permit issued under this subsection shall be for a period of more
than five years after the date of its issuance.” 33 U.S.C. §
1344(e)(2). Indisputably, 2007 NWP 21 had a five-year term and has
expired.

Likewise, 2012 NWP 21 has a five-year term.

Plaintiffs

do not argue that the Corps expressly extended authorizations under
2007 NWP 21 but argue that, by giving them differential treatment
25

under 2012 NWP 21(a), the Corps implicitly extended the prior
authorizations.
Section 404(e)(2) is simply a procedural provision, a time
limit on the effectiveness of general permits.

It does not impose

constraints on the content of general permits or require that
general permits and their treatment of permittees change for each
permit reissuance.

Whether activities authorized by the general

permit continue unabated for ten years, § 404(e)(2) is satisfied
provided that the term of effectiveness of the general permit
remains five years.

As there is no real dispute about the express

term, 2012 NWP 21(a) does not violate the CWA on this ground, and
defendants’ conduct was not arbitrary and capricious in issuing
2012 NWP 21.

Thus, defendants and intervenors are entitled to

summary judgment on Count One.
C.

CWA Cumulative Effects Analysis
Plaintiffs

argue

that

2012

NWP

21(a)

violates

the

CWA

requirement that the activities covered by the permit not have more
than minimal cumulative environmental effects and, therefore, the
Corps’ issuance of 2012 NWP 21 was arbitrary and capricious under
the APA.

More specifically, plaintiffs assert that (1) the Corps

did not conduct a CWA cumulative effects analysis for 2012 NWP
21(a); (2) the Corps improperly relied on its CWA cumulative
effects analysis conducted for 2007 NWP 21; and (3) the Corps
improperly

considered

compensatory

26

mitigation,

which

lacks

a

factual basis. The arbitrary and capricious standard, described in
section B above, applies to review of the Corps’ CWA cumulative
effects analysis.

The court finds (1) that the Corps completed a

CWA nationwide cumulative effects analysis for 2012 NWP 21 that
incorporates both paragraphs (a) and (b); (2) that the Corps did
not rely on its cumulative effects analysis from 2007 NWP 21; and
(3)

that

the

Corps

did

not

improperly

consider

compensatory

mitigation, and compensatory mitigation has a sufficient factual
basis.

These findings entitle defendants and intervenors to

summary judgment on Count Two.
1.

Cumulative Effects Analysis for 2012 NWP 21(a)

The Corps may only issue a general permit if it determines
that the covered activities will have minimal adverse environmental
effects separately and cumulatively. CWA § 1344(e).

To satisfy

this requirement, the Corps must first conduct a national-level
analysis, including an estimate of how many operations will likely
be regulated under the NWP until its expiration. 40 C.F.R. §
230.7(b)(3).
activities

If and only if the Corps determines that the covered
will

have

no

more

than

minimal

adverse

nationwide, does the Corps issue the general permit.

effects

Next, the

district engineer conducts a local-level analysis and adjusts the
nationwide NWP if the covered activities are likely to have more
than minimal adverse effects within a particular area.

Plaintiffs

contend that the Corps did not make a national minimal cumulative

27

adverse effects determination for 2012 NWP 21(a).
The Corps made a clear determination that the activities
covered by 2012 NWP 21, under both paragraphs (a) and (b), will
result in minimal adverse effects pursuant to a national CWA
cumulative effects analysis.
the

Corps

estimated

the

In accordance with CWA requirements,

number

of

operations

that

would

be

regulated nationally by the NWP over its five-year term. Doc. 63-5,
NWP002751-52.

The Corps then considered compensatory mitigation,

a topic addressed in more detail later, and concluded:
[T]he Corps has determinated that the discharges
authorized by this NWP comply with 404(b)(1) [cumulative
effects] Guidelines, with the inclusion of appropriate
and
practicable
conditions, including
mitigation,
necessary to minimize adverse effects on affected aquatic
ecosystems. The activities authorized by this NWP will
result in minimal individual and cumulative adverse
effects on the aquatic environment.
Id. at NWP002760.8

The CWA requires only one cumulative effects

analysis, not two separate analyses for paragraphs (a) and (b). See
CWA § 404(e).

The Corps has no additional burden of proof because

2012 NWP 21 diverges from how 2007 NWP 21 classified surface mining
operations. See F.C.C. v. Fox Television Stations, Inc., 556 U.S.
502, 519 (2009) (citations omitted).

This court does not believe

that a regulatory agency like the Corps must study, anticipate, and
provide for every possible adverse eventuality before approving a

8

The operation-specific reauthorization criteria are separate from the
national cumulative effects analysis. The Decision Document shows that the
Corps did not “rel[y] solely on the District Engineer’s decision memoranda [on
2012 NWP 21(a) reauthorization criteria] to satisfy” the national cumulative
effects analysis, as plaintiffs claim. Doc. 68 at 5.

28

regulated activity.
Plaintiffs try to recast the Corps’ minimal cumulative effects
determination as only pertaining to paragraph (b), but the plain
meaning of “activities authorized by this NWP” include those
authorized under paragraphs (a) and (b). See Doc. 63-5, NWP002760.
The passages quoted by plaintiffs support this interpretation.
Plaintiffs

quote:

“The

substantial

changes

in

the

terms

and

conditions of the reissued NWP 21 will ensure that the activities
authorized by this NWP result in minimal individual and cumulative
adverse effects on the aquatic environment.” Id. at NWP002708. The
preceding

sentence,

however,

mentions

changes

implemented

in

paragraph (a) as well as in paragraph (b):
The NWP reissued today has been substantially modified
from the 2007 version of NWP 21, with paragraph (a)
authorizing Corps district engineers to re-authorize
activities that were previously verified under the 2007
NWP 21 authorization where that would be appropriate, and
paragraph (b) imposing the acreage and linear foot limits
stated above, as well as the condition prohibiting its
use for the construction of valley fills....
Id.

Later references to “changes to NWP 21” and its “new terms and

conditions” logically mean all changes and all new terms and
conditions, or the Corps would specify which change. See id. at
NWP002721–23.

Thus, statements that “the new terms and conditions

of this NWP, including [but not exclusive to] the 1/2 acre and 300
linear foot limits, are necessary to ensure” compliance with the
CWA

cumulative

effects

analysis

presumably

incorporate

both

paragraphs (a) and (b) and are consistent with the Corps’ CWA

29

minimal cumulative effects determination. See id. at NWP002721.
2.

2007 NWP 21 Cumulative Effects Analysis

Plaintiffs contend that the Corps improperly relied on its CWA
cumulative effects analysis from 2007 when issuing 2012 NWP 21.
The sentence that plaintiffs cite in support is ambiguous, but the
debatable implications from this one sentence do not outweigh the
Corps’ clear CWA minimal cumulative effects determination that
relies on a 2008 mitigation rule not present in the 2007 cumulative
effects analysis.
The placement of the disputed sentence makes its implications
ambiguous such that neither the plaintiffs’ interpretation nor the
Corps’ interpretation is clearly correct. Because the Corps argues
that

plaintiffs

take

the

sentence

out

of

context,

the

paragraph appears below:
The decision document for this NWP includes evaluations
of cumulative effects under [the NEPA and the CWA], and
concludes that the reissuance of this NWP, including the
imposition of the 1/2-acre limit, 300 linear foot limit,
and prohibition against authorizing valley fills on
activities that were not previously authorized under the
2007 NWP 21, as well as the pre-construction notification
requirements and other procedural safeguards, will
authorize only those activities with minimal individual
and
cumulative
adverse
effects
on
the
aquatic
environment. Activities authorized under the 2007 NWP 21
were already determined by district engineers to result
in minimal individual and cumulative adverse effects on
the aquatic environment. The other procedural safeguards
include the authority for division engineers to modify,
suspend, or revoke NWP 21 authorizations on a regional
basis, and the authority for district engineers to modify
NWP 21 authorizations by adding conditions, such as
compensatory mitigation requirements, to ensure minimal
individual and cumulative adverse effects on the aquatic
30

full

environment.
District
engineers
may
also
assert
discretionary authority to require individual permits in
cases where the adverse effects will be more than
minimal.
Doc. 63-5, NWP002711 (emphasis added).

Plaintiffs argue that

“[t]here is no need to make this statement unless the Corps
intended to rely on its earlier 2007 analysis.” Doc. 68 at 16.

The

Corps counters that it included the sentence as an aside, to
“mak[e] the point that the new limits and additional review under
2012 NWP 21 would be more robust than the 2007 permit.” Doc. 63-1
at 32.

Furthermore, the Corps emphasizes that the paragraph does

not state that the Corps relied on the 2007 analysis.
placement

of

the

disputed

sentence

is

ambiguous;

it

The
could

implicitly replace some portion of the 2012 analysis or it could
function as a superfluous aside.
The

centrality

of

the

2008

mitigation

rule

to

the 2012

analysis bolsters the Corps’ explanation that it did not rely on
the 2007 analysis.

The 2012 analysis has prevalent references to

the Corps’ 2008 rule designed to improve compensatory mitigation
practices,

33

C.F.R.

§

332.

See

Doc.

63-5,

NWP002752-54.

Unsurprisingly, the 2007 analysis did not use the 2008 rule’s
changed compensatory mitigation requirements.

The importance of

compensatory mitigation to the Corps’ minimal cumulative effects
determination and the centrality of the 2008 mitigation rule’s
requirements adds weight to the Corps’ explanation that it did not
rely on the 2007 analysis.

31

The Corps has given a rational explanation for why it included
the

disputed

sentence

without

denoting

reliance

on

the

2007

analysis, an explanation bolstered by the centrality of the Corps’
2008 mitigation rule to the 2012 analysis.

The APA requires that

an agency’s explanation be rational and reasonably explained, and
not contrary to the evidence or wholly implausible. See Sierra Club
v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008); Miccosukee
Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264
(11th Cir. 2009).
3.

The Corps’ explanation satisfies this standard.9

Compensatory Mitigation

Plaintiffs

claim

that

the

Corps’

CWA

cumulative

effects

analysis is arbitrary and capricious because the Corps did not
properly consider compensatory mitigation and because compensatory
mitigation does not have a factual basis.

This court finds the

contrary, that the Corps did not improperly consider compensatory
mitigation based on the CWA and Eleventh Circuit case law, and the
Corps’ compensatory mitigation has a sufficient factual basis.
The parties’ disagreement centers on whether the Corps can

9

The Sixth Circuit concluded that the Corps extended its reliance on
the 2007 NWP 21 analysis to determine that 2012 NWP 21(a) would have minimal
cumulative effects. See Ky. Riverkeeper, Inc. v. Rowlette, 714 F.3d 402, 40607 (6th Cir. 2013). The Sixth Circuit looked to the public notice of 2012 NWP
21 in the federal register, but it did not examine the Decision Document or
the full administrative record. See id.; Doc. 72 at 10 (administrative record
for 2012 NWP 21 filed for the first time in the present case). This court
considers the Decision Document critical to determining if the Corps relied on
its 2007 analysis in conducting the 2012 cumulative effects analysis because
the Decision Document contains the 2012 cumulative effects analysis. With the
full record before it, for the reasons explained in section (C)(2) above, this
court respectfully disagrees with the Sixth Circuit’s conclusion.

32

consider compensatory mitigation to be completed after issuance of
the general permit as part of its cumulative effects analysis
conducted before issuance.

Plaintiffs claim that the Corps cannot

consider post-issuance compensatory mitigation, and they argue
against following the case that would allow the Corps to do so,
Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493 (4th Cir. 2005).
Bulen found that the CWA is silent on this issue and would allow
the

Corps

mitigation

to
if

partially
it

rely

conducts

a

on

post-issuance

“good-faith,

compensatory

comprehensive,

pre-

issuance review of the anticipated environmental effects of the
activities

authorized.”

Id.

at

502.

Plaintiffs’

arguments

notwithstanding, the Eleventh Circuit has chosen to follow Bulen.
See Sierra Club v. U.S. Army Corps of Engineers, 508 F.3d 1332,
1337 (11th Cir. 2007).

In Sierra Club, the Eleventh Circuit

affirmed a district court that explicitly chose to follow Bulen.
Sierra Club v. U.S. Army Corps of Engineers, 464 F. Supp. 2d 1171,
1211 (M.D. Fla. 2006), aff’d 508 F.3d 1332 (11th Cir. 2007).

The

district court there found that “the Corps did not violate the CWA
in utilizing post-issuance (post-permit) conditions, including
mitigation, to make its pre-issuance (pre-permit) minimal adverse
environmental effects determination.” Id. at 1210-11 (quotation
marks omitted).

The Eleventh Circuit “agree[d] with the district

court’s reasoning” that the permit complied with the CWA including
“mitigating any environmental effects so they are minimal,” and
concluded that “this Permit is within Congress’ grant of authority
33

to the Corps to issue general permits.” Sierra Club, 508 F.3d at
1337.

So

long

as

the

Corps

conducted

the

“good-faith,

comprehensive, pre-issuance review of the anticipated environmental
effects of the activities authorized” described in Bulen, the
Corps’ consideration of post-issuance compensatory mitigation does
not render its CWA cumulative effects analysis arbitrary and
capricious.
Plaintiffs

also

assert

that

the

Corps’

consideration

of

compensatory mitigation is arbitrary and capricious because the
Corps’

claim

that

compensatory

mitigation

cumulative effects does not have a factual basis.

ensures

minimal

CWA regulations

require that the Corps give “documented information supporting each
factual determination,” including the determination of minimal
cumulative effects. 40 C.F.R. §§ 230.7(a)-(b), 230.11(g).

These

regulations link back to the APA arbitrary and capricious standard
because the Corps must provide a “satisfactory explanation for its
action including a rational connection between the facts found and
the choice made.” See Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto Ins. Co., 463 U.S. 29, 43 (1983) (quotation and quotation
marks omitted).

Thus, the Corps “must, at a minimum, provide some

documented information supporting [its] finding [that compensatory
mitigation

will

ensure

minimal

cumulative

effects.]”

Ky.

Riverkeeper, Inc. v. Rowlette, 714 F.3d 402, 413 (6th Cir. 2013).
“The ‘mere listing’ of mitigation measures and processes, without
any analysis, cannot support a cumulative impacts determination.”
34

Ohio Valley Envtl. Coal. v. Hurst, 604 F. Supp. 2d 860, 887 (S.D.
W.Va. 2009) (quoting Nat'l Parks & Conservation Ass'n v. Babbitt,
241 F.3d 722, 734 (9th Cir. 2001)).
The
analysis

court

finds

provides

consideration

a

of

that

the

Corps’

sufficient

compensatory

factual

CWA

cumulative

basis

mitigation.

for

effects

the

Several

Corps’
of

the

scientific sources cited in the Decision Document address the
success of compensatory mitigation.

The Corps cites one article

that finds that “[w]etland restoration is becoming more successful,
especially in cases where monitoring and adaptive management are
used

to

correct

deficiencies

in

these

efforts.”

Doc.

63-5,

NWP002753 (citing J.B. Zedler & S. Kercher, Wetland Resources:
Status, Trends, Ecosystem Services, and Restorability in ANNUAL REVIEW
ENVIRONMENTAL

RESOURCES

30:39-74

(2005)).

The

Corps

discusses

monitoring and adaptive management as two key aspects of the 2008
mitigation rule soon afterwards. Id. at NWP002753-54.

Another

scientific source identifies stream rehabilitation as typically
“the

most

effective

compensatory

mitigation

mechanism”

and

describes actions that have had “varying degrees of success in
stream rehabilitation activities.” Id. at NWP002753 (citing P.
Roni, K Hanson & T. Beechie, Global Review of the Physical and
Biological

Effectiveness

of

Stream

Habitat

Rehabilitation

Techniques, N. AM. J. of FISHERIES MGMT., 28:856-90 (2008)).

The

Corps cites a 2010 article that discusses how “[e]cologically
successful stream rehabilitation and enhancement activities depend
35

on

addressing

the

factors

that

most

strongly

affect

stream

functions, especially water quality, water flow, and riparian
quality, and not focusing solely on rehabilitating or enhancing the
physical

habitat

of

streams.”

Id.

(citing

M.A.

Palmer,

H.L.

Menninger & E. Bernhardt, River Restoration, Habitat Heterogeneity,
and Biodiversity: A Failure of Theory or Practice? in FRESHWATER
BIOLOGY 55:205-22 (2010)).

Lastly, the Corps cites a 2011 study

covering 2004-2009 that found that efforts to reestablish or
establish wetlands have been successful in increasing wetland
acreage in the United States. Id. at NWP002754 (citing T.E. DAHL,
U.S. DEPARTMENT
WETLANDS

IN THE

OF THE

INTERIOR, FISH & WILDLIFE SERVICE, STATUS

CONTERMINOUS UNITED STATES 2004

TO

AND

TRENDS

OF

2009 (2011), available at

http://www.fws.gov/Wetlands/Documents/Status-and-Trends-of-Wetlan
ds-in-the-Conterminous-United-States-2004-to-2009.pdf).

Although

the Corps’ summary does not give much detail, the actual scientific
study does. See DAHL, STATUS

AND

TRENDS, 71-80.

This court stops short

of requiring the Corps to incorporate entire scientific works into
its administrative record or quoting said works at length to
demonstrate that its findings have a factual basis.

The Corps

cites several recent scientific works that analyze the success of
compensatory

mitigation,

and

such

sources

give

the

Corps

“a

rational connection between the facts found” and its choice to
consider

compensatory

mitigation

in

the

cumulative

analysis. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43.

36

effects

D.

Finding of No Significant Impact Under the NEPA
Plaintiffs argue that the Corps’ Finding of No Significant

Impact under the NEPA is arbitrary and capricious because the Corps
failed to properly analyze the cumulative effects of 2012 NWP
21(a). Plaintiffs’ arguments under the NEPA mirror their arguments
under the CWA: the Corps found 300-foot and 1/2 acre limits of 2012
NWP 21(b) “necessary” to avoid more than minimal adverse effects;
the Corp relied on the 2007 NWP 21 analysis; and the Corps
improperly relied on factually unsupported compensatory mitigation.
Like

its

determinations

under

the

CWA,

the

Corps’

NEPA

determinations are reviewed under the APA’s “high deferential
standard.” See Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360
(11th Cir. 2008).

Plaintiffs’ NEPA arguments do not succeed for

the same reasons that their CWA arguments do not. See section
II(C); Doc. 63-5, NW002737-42.

Defendants and intervenors are

entitled to summary judgment on Count Four.
CONCLUSION
Although plaintiffs’ standing presents a close question, the
CWA regulations and non-binding cases do not give sufficient reason
for this court to find that plaintiffs lack standing to bring
claims

under

intervenors’
jurisdiction.

CWA

§

motion

404.
to

Accordingly,

dismiss

for

the

lack

of

court

will

subject

deny

matter

But the court will grant intervenors’ motion for

summary judgment because, after balancing the equities, the court

37

finds that laches bars plaintiffs’ claims. Even if laches does not
apply, defendants and intervenors are entitled to summary judgment
on all counts.

DONE this 21st day of May, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

38