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

Filing 44

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 8/14/2018. (PSM)

FILED
2018 Aug-14 PM 02:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

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.

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2:17-cv-00439-LSC

MEMORANDUM OF OPINION
Before the Court are Plaintiffs , Black Warrior Riverkeeper Inc.
,
motion for summary judgment (doc. 32), and Defendants , U.S. Army Corps of

s Commanding General and Chief of Engineers; Col. James
, in his official capacity as Commander and District Engineer of

;1

s

, in his official capacity as Secretary of the United States
Department of the Interior; and Gr
Acting Director, and Jim Kurth, in his official capacity as acting director of the
FWS

, cross motion for summary judgment (doc. 33).

For the reasons stated below,
the

motion (doc. 32) is due to be denied and

motion (doc. 33) is due to be granted.
I.

BACKGROUND2
In November 2014, an entity acting on behalf of Black Warrior Minerals, Inc.

( BWM ) submitted a request to the Corps to make a jurisdictional determination
to allow BWM to expand its mining operations in Jefferson County, Alabama in the

1

Plaintiffs acknowledge in their response brief
FWS (Doc. 42 at 1 n.1.) Accordingly, FWS is dismissed from this action.
2

The facts set out in this opini
claimed to be undisputed, their respective responses to t

submissions of facts
s own

only. They may not be the actual facts. See Cox v. Adm'r U.S. Steel & Carnegie Pension Fund, 17
F.3d 1386, 1400 (11th Cir. 1994). The Court is not required to identify unreferenced evidence
supporting a party s position. As such, review is limited to exhibits and specific portions of the
exhibits specifically cites by the parties. See
, 647 F.3d 1057,
istrict court judges are not required to ferret out delectable facts
buried in a massive record . . .
(internal quotes omitted).

Page 2 of 30

Locust Fork Watershed. The proposed project was the BWM Mine #2, a 1293-acre
surface coal mine within the Lower and Middle Locust Fork watershed.3 The
Corps approved of the boundaries and began the process of reviewing the proposed
action of granting a discharge permit under § 404 of the Clean Water Act
( CWA ).4

To comply with requirements of the CWA and the National

Environmental Policy Act ( NEPA ),5 the Corps examined potential cumulative
impacts and multiple mitigation measures to determine whether the project could
lead to significant impacts on the environment.
In crafting a baseline, the Corps determined that active surface mining
operations, comprising seventeen (17) active surface coal mines, including BWM

3

Contiguous with BWM Mine #2 is the pre-existing BWM Mine #1 site. The two mines
also share a statepermit.
However,
4

The CWA, 33 U.S.C. §§ 1251-1387 et seq., establishes a national comprehensive program

Section 404 of the CWA authorizes the Secretary of the Army,
acting through the Corps, to regulate discharges of dredged and fill material into wetlands
through the issuance of permits. 33 U.S.C. § 1344.
5

When Congress enacted NEPA, it aimed

ard look at

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (internal
citations and quotation marks omitted).

Page 3 of 30

Mine #1, already made up 1.603% of the total acreage in the Middle Lower and
Middle Locust Fork watersheds authorized and regulated by the Surface Mining
Commission and Regulation Act ( SMCRA ), which is administered by the
. Authorizing Mine #2 would
amount to an additional 0.003% of the land within the watersheds. The Corps also
acknowledged the decades of mining that had occurred in the Locust Fork

abandoned mines for baseline water quality and aquatic habitat values in the
watershed. Though acknowledging various environmental harms from the past
mining projects, the Corps also found that the watershed remains heavily forested 6
and provides a functioning ecosystem.
The Corps also considered how the permittee would be required to employ
compensatory mitigation measures to offset the environmental impacts that could
result. To begin, project applicants are already required to use Best Management
Practices imposed by the Alabama Department of Environmental Management

6

The Corps noted

see

AR 3616,
vegetation at one time, so the forested cover can remain at somewhat constant levels. As sites are
Id. at 3623.

Page 4 of 30

( ADEM ), employing water treatment processes prior to discharge of water from
the mining site. The permit would also require compensatory mitigation by the
permittee, such as taking measures that would enhance and preserve natural
buffers along the southern boundary of the proposed mine. In light of these
required mitigation measures, along with the relatively small cumulative impact
that the Corps believed the BWM Mine #2 represented, it was concluded that the
proposed mine would not lead to a significant impact on the environment. For this
reason, Defendants elected to issue the CWA § 404 permit and to forgo making an
Environmental Impact Statement ( EIS ).
l impacts on the
environment, the Corps also considered whether the project might affect listed
species or their critical habitats under the Endangered Species Act ( ESA ).7
Reasoning that areas with known listed species were too distant from the mining
site to be affected, the Corps defined the relevant action area to encompass only the

7

The purposes [of the ESA] are to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved [and] to provide a program
for the conservation of such endangered
16 U.S.C. §
1531(b).

Page 5 of 30

mining site itself.
continuous

Corps AR 1232,8 the Corps then concluded that there

were no listed species or critical habitats within the action area that could be
affected. Having found that no effects upon listed species could result, the Corps
chose not to consult with the FWS about its issuance of the CWA § 404 permit.
s issuance of the CWA § 404 permit, Plaintiffs brought
suit to challenge the procedures employed. Plaintiffs

s

conclusions were arbitrary and capricious, in violation of the Administrative
Procedures Act ( APA ).9 More specifically, Plaintiffs brought claims under the
ESA, the CWA, and the NEPA.
With respect to the ESA claim, Plaintiffs added that claim when they
amended their complaint on May 23, 2017. Plaintiffs had mailed written notice to
both the Corps and the Secretary of the Interior

on March 21,

2017. The Corps received that written notice on March 24th, and the Secretary
8

conducted by a consultant who was hired by the permit applicant.
9

an administrative agency s action should be the administrative record
Army Corps of Engineers, 87 F.3d 1242, 1246 (11th Cir. 1996) (citing Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 743-44 (1985)).

Page 6 of 30

received it on March 27th via first class mail. Ultimately, Plaintiffs added their ESA
claim 60 days after the Corps had received notice but only 57 days after the
Secretary received it.
II.

STANDARD
In reviewing agency action, the court may set aside the action only if it is

of the Administrative Procedure Act. This is an
, Fund for Animals v. Rice, 85 F.3d 535, 541 (11th
Cir. 1996),
rational conclusion, not to conduct its own investigation and substitute its own
judgment

decision. Sierra Club v. Van Antwerp,

526 F.3d 1353, 1360 (11th Cir. 2008) (citation and internal quotation marks
omitted). Agency action may
substantive reasons as mandated by statute, not simply because the court is
Citizens
Transp., 669 F.3d 1203, 1210 (11th Cir. 2012) (quoting Fund for Animals, 85 F.3d at
541-42); see also Nat. Res. Def.

, 250 F. Supp. 3d 1260,

1283 (M.D. Fla. 2017) (noting

of review provides a court with the

Page 7 of 30

Particular deference is due when an

instances. Defs. of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242, 1248-49
(11th Cir. 2012) (citation omitted).
decision, that decision should be upheld even if the record could support
alternative findings. Ark. v. Okla., 503 U.S. 91, 112 13 (1992). However, the

scrupulously follow the regulations and procedures promulgated by the agency
Simmons v. Block, 782 F.2d 1545, 1549 1550 (11th Cir. 1986) (citations
omitted) (affirming decision to set aside agency action as arbitrary and capricious

The party challenging the agency action bears the burden of proof. See, e.g., Nat.
Res. Def. Council, 250 F. Supp. 3d at 1283 (citing
Highway Admin., 772 F.2d 700, 709 n.9 (11th Cir. 1985)).
III.

DISCUSSION
A.

ESA Claim

Page 8 of 30

As an initial matter, there is a question as to whether Plaintiffs followed the
proper procedure in adding their claim under the ESA. A citizen may not
commence

. . . has
16

U.S.C. § 1540(g)(2)(A)(i) (2012). Courts have interpreted this provision strictly to
ensure that all parties have

an opportunity to resolve the dispute and take any

necessary corrective measures before a resort to the courts.

Waterkeeper Alliance

, 271 F.3d 21, 29 (1st Cir. 2001); see S.W. Ctr. for Biological
Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998) ( A
failure to strictly comply with the notice requirement acts as an absolute bar to
bringing suit under the ESA.

; see also

c. v.

TVA, 502 F.3d 1316, 1329 (11th Cir. 2007) (discussing a similar notice provision
10

warrants dismissal of the case.

and non-compliance
, 441 F. Supp.

10

Though the Eleventh Circuit has issued a decision regarding the jurisdictional aspect of
the notice requirement of the ESA, the parties agree on this point.
jurisdictional. (See Doc. 42 at 6.)

Page 9 of 30

2d 1123, 1129 (N.D. Ala. 2006) (citing Sw. Ctr. for Biological Diversity, 143 F.3d at
520 and Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1072 (9th Cir. 1996)); see also
Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir. 1988) (
notice requirement is jurisdictional . . . . ).11
The parties do not dispute any of the facts regarding

attempt to

provide written notice of intent, but there remains a legal question as to when the
60-day notice period begins where a plaintiff sends notice through the mail. If the
notice period began on the postmark date, then

filing of the amended

complaint 63 days after mailing notice would be sufficient. But if the notice period
began upon receipt by all parties, then the fact that Plaintiffs filed their amended
complaint only 57 days after the Secretary received notice would warrant dismissal
without prejudice of the ESA claim.
The starting point of the required notice period presents a novel issue. It is
well established that the notice requirements in the ESA and in similar laws are
11

A number of district courts within this Circuit have found the 60-day notice requirement
of the ESA to be jurisdictional. See e.g. Birdsong v. City of Birmingham, 2014 WL 4825247 (N.D.
Ala. Sept. 26, 2014); Defenders of Wildlife v. Bureau of Ocean Energy Mgmt., Regulation, and
Enforcement, 791 F. Supp. 2d 1158, 1181 (S.D. Ala. 2011)(citing Pulaski v. Chrisman, 352
F.Supp.2d 1105, 1115 16 (C. D. Cal. 2005) and Conservation Force v. Salazar, 715 F.Supp.2d 99,
102 (D.D.C. 2010) (declaring that 60

Page 10 of 30

quite strict. See e.g., Hallstrom v. Tillamook Cty., 493 U.S. 20, 27 (1989). The case
most analogous to the facts at issue is Center for Environmental Science, Accuracy &
Reliability v. Sacramento Regional County Sanitation Dist., No. 1:15-cv-01103 LJO
BAM, 2016 WL 8730775 (E.D. Cal. June 3, 2016) ( CESAR ). There, a district
court dismissed an ESA claim when a plaintiff had mailed written notice to the
Secretary, but the notice had never reached the Secretary. Id.
not unfair to require that

However, unlike in

CESAR, the Secretary did ultimately receive notice here. Indeed, neither party has
been able to cite any case that addresses a situation in which a plaintiff filed a
citizen-suit complaint more than 60 days after mailing notice but fewer than 60
days after the receipt of that notice.
Plaintiffs point to similar notice-requirement language in the CWA, see 40

Hallstrom, 493 U.S. at 23 n.1. Because the Environmental Protection Agency

the postmark date, Plaintiffs claim that the same should apply to the ESA. See 40
h the provisions of this part
shall be deemed given on the postmark date, if served by mail, or on the date of

Page 11 of 30

12

see also, e.g., 40. C.F.R. § 135.2(c). However, the

ESA is administered by a different agency

the Fish and Wildlife Service

which

is not bound by the interpretations made by the EPA. See K Mart Corp. v. Cartier,
Inc.
varying interpretation of the same phrase when that phrase appears in different

in support is distinguishable. In Loggerhead Turtle v. Volusia County, Florida, the
Eleventh Circuit confined its analysis exclusively to the attorney fee language in the
ESA and CWA, making no comparison of the notice-requirement provision. 307
F.3d 1318, 1325 (11th Cir. 2002).
With no precedent as to when the notice period begins under the ESA, this
13

Court instead looks to the

and purpose. The question of

is admittedly an unclear one. Common usage could
hold either way as to whether the act of giving alone is enough or whether receipt is
12

The CWA requires notice be
Plaintiffs notice to the Secretary here indicates that it was delivered via first class mail and would
thus be deficient for that additional reason. (See Doc. 41-1 at 5.)
13

The threshold question in ascertaining the correct interpretation of a statute is whether the
See K Mart Corp., 486 U.S. at 293 n.4.

Page 12 of 30

necessary. See Give, B
anot

LAW DICTIONARY
Fortunately, the Supreme Court provided guidance in

Hallstrom, noting that the 60-day notice period provides agencies with opportunity
to take corrective measures and thereby make litigation via citizen suits
unnecessary. 493 U.S. at 29; see also Sw. Ctr. for Biological Diversity, 143 F.3d at 520
(the

for
Forest

Conservation Council v. Espy, 835 F. Supp. 1202, 1210 (D. Id. 1993)
1399 (9th Cir. 1994)). Thus, the purpose of the 60-

42 F.3d

is to provide the

parties with a window to correct the issues and avoid costly litigation.
Given the notice

t would seem necessary for the notice

period to begin only once the parties14 have received notice of the intent to sue.
Suppose that Plaintiffs had mailed its notice of intent just as occurred here, but the
delay in receipt was even more pronounced. Under
14

reading of the

alternate argument that the 60 day notice period began to run on the date that
the Corps, as the party against whom the ESA claims were asserted, received notice is likewise
unavailing. The notice requirement contained in the ESA is unequivocally conjunctive, requiring
and
suit. 16 U.S.C. § 1540(g)(2)(A)(i) (emphasis added).
, 503
U.S. 249, 253-54 (1992) (
sume that a legislature says in a statute what it

Page 13 of 30

statute, it could have met its notice requirement even if the Corps or the Secretary
had not received the written notice until 59 days after the postmark date. Such a
ld be
wholly inadequate for the parties to resolve the claim without resorting to litigation.
Moreover, Plaintiffs can hardly claim that requiring a plaintiff to ascertain
when notice has been received is an undue burden. As Plaintiffs, Riverkeeper and
DOW, have

ver the timing of [their

Hallstrom, 493 U.S. at 27.

No great obstacle prevented Plaintiffs from making inquiries into when the
Secretary had received notice and then delaying the filing of the amended
complaint accordingly. Indeed, Plaintiffs filed their amended complaint on May
23, 2016, exactly 60 days after the Corps received notice and 63 days after Plaintiffs
alleges they gave notice. That fact is strong evidence of

ability to delay

the filing of their suit to an appropriate time. Because the controversy here resulted
from

decision of when to file the
favor.

See id.
Plaintiffs argue that the timing of receipt by the Secretary is not fatal, since
the Corps received notice on time and the Secretary did ultimately receive notice as

Page 14 of 30

well. But, the text of § 1540(g)(2)(A)(i) makes clear that notice must be given to
both the Secretary and the agency that is in violation of the law. 15 And in CESAR,
failure to notify the Secretary 60 days prior to commencing the action was just as
fatal to the claim as a failure to notify the agency alleged to be in violation. 2016
WL 8730775, at *5. Between the statutory text and subsequent case law, the ESA
requires that the Secretary be included in the lead-up to litigation in the same
manner as the agency alleged to be in the wrong. Thus, Plaintiffs cannot excuse
any deficiency in their notice to the Secretary by arguing that the notice to the
Corps was sufficient.
By filing their amended complaint fewer than sixty days after receipt of
notice by both the Corps and the Secretary, Plaintiffs have failed to provide

15

As the Court in Hallstrom noted when holding that the notice and 60-day delay
requirements were a mandatory condition precedent to commencing suit under the RCRA citizen
n the long run, experience teaches that strict adherence to the procedural
requirements specified by the legislature is the best guarantee of evenhanded administration of
Hallstrom, 493 U.S. at 31 (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)
(internal quotation marks omitted)).

Page 15 of 30

sufficient notice as required under § 1540(g)(2)(A). Their citizen suit claim under
the ESA is therefore due to be dismissed without prejudice. 16
Because the Court has determined that

ESA claim is due to be

dismissed without prejudice for failure to give

a

requirement that is jurisdictional,17 the Court declines to proceed to its merits.
B.

CWA and NEPA claims

In addition to claims under the ESA, Plaintiffs also bring claims under both
the CWA and the NEPA. To succeed on either claim, Plaintiffs must first show
that

actions were arbitrary and capricious. 18

See Black Warrior

16

Plaintiffs also point to the fact that the parties mutually agreed to the date upon which
Plaintiffs filed the amended complaint. However, this implicit argument of waiver finds no
support from either the statutory language or case law interpreting it. The text of the statute is
phrased as an absolute. See 16 U.S.C.
prior to sixty days after notice has been given . . .
ception for waiver appears within the
text. Furthermore, Plaintiffs fail to cite any case authority that discusses a waiver of notice.
“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to
declare the law, and when it ceases to exist, the only function remaining to the court is that of
In re Bayou Shores SNF, LLC, 828 F.3d 1297,
1329 (11th Cir. 2016) (citing
, 523 U.S. 83, 94 (1998)
(quoting Ex parte McCardle, 74 U.S. 506, 514 (1868))).
17

18

The arbitrary and capricious standard is a highly deferential one, and [a court] cannot
substitute [its] judgment for that of t
s conclusions are rational
and reasonably explained.
, 833 F.3d
1274, 1285 (11th Cir. 2016) (citing Sierra Club, 526 F.3d at 1360)).
inquiry is limited

Page 16 of 30

Riverkeeper, Inc., 833 F.3d at 1286-89
effects in issuing CWA permit was not arbitrary and capricious); see also Hill v. Boy,
144 F.3d 1446 (11th Cir. 1998) (reviewing decision not to issue EIS under

The CWA prohibits the discharge of pollutants, such as dredge or fill
material, into any navigable waters unless authorized by a CWA permit. 33 U.S.C.
§ 1311(a) (2012). Section 404 of the CWA authorizes the Corps to regulate the
discharge of dredge and fill materials into wetlands through the issuance of permits.
33 U.S.C. § 1344 (2012). Before issuing a permit under CWA § 404, the Corps
must ensure that the potential discharges could
.
§ 230.10(c)(1) (3). In doing so, the Corps must make a written determination as to

biological components of the aq

40 C.F.R. § 230.11.

s decision was based on a consideration of the relevant factors and,
ultimately, whether it made a clear error of judgment. Fund for Animals, Inc. v. Rice, 85 F.3d
535, 541 (11th Cir. 1996).

Page 17 of 30

Unlike the CWA, the NEPA sets no substantive restrictions on agency
actions. Sierra Club, 526 F.3d at 1361 (
Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 350 (1989)). Instead, the NEPA directs federal agencies to
carefully consider the environmental consequences for their actions and to prepare
an EIS
. In determining whether there are
significant impacts, an agency must also analyze the cumulative impacts of a
proposed action in the context of other, related actions. See City of Oxford v. FAA,
428 F.3d 1346, 1353 n. 16 (11th Cir. 2005). 19 A cumulative impact is the impact on

19

NEPA regulations provide:
as used in NEPA requires considerations of both context and

intensity:
...
(b) [Intensity. This refers to the severity of impact. Responsible officials must bear
in mind that more than one agency may make decisions about partial aspects of a
major action.] The following should be used in evaluating intensity:
...
(7) Whether the action is related to other actions with individually insignificant
but cumulatively significant impacts. [Significance exists if it is reasonable to
anticipate a cumulatively significant impact on the environment. Significance
cannot be avoided by terming an action temporary or by breaking it down into
small component parts.]

Page 18 of 30

1508.7.20 After examining all potential impacts from the project, an agency may
forgo issuing an EIS and instead issue
( FONSI ) if it provides a detailed and convincing statement of its reasoning. 40
C.F.R. §§ 1501.4(b), 1508.13.21
The Eleventh Circuit has cited four criteria applied by courts in the District
of Columbia when
is arbitrary and capricious.

Id. n. 16 (citing 40 C.F.R. § 1508.27).
20

h 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.
Cumulative impacts can result from individually minor but collectively significant actions taking
40 C.F.R. § 1508.7.
21

Finding of no significant impact means a document by a Federal agency briefly
presenting the reasons why an action, not otherwise excluded (§ 1508.4), will not have a
significant effect on the human environment and for which an environmental impact statement
[EIS] therefore will not be prepared. It shall include the environmental assessment [EA] or a
summary of it and shall note any other environmental documents related to it (§ 1501.7(a)(5)). If
the assessment is included, the finding need not repeat any of the discussion in the assessment
but may incorporate it by reference.
1508.13.

Page 19 of 30

First, the agency must have accurately identified the relevant
environmental concern. Second, once the agency has identified the
the EA. Third, if a finding of no significant impact is made, the agency
must be able to make a convincing case for its finding. Last, if the
agency does find an impact of true significance, preparation of an EIS
can be avoided only if the agency finds that changes or safeguards in
the project sufficiently reduce the impact to a minimum.
Hill v. Boy, 144 F.3d at 1450 (emphasis added) (citing Coalition on Sensible
Transp., Inc. v. Dole, 826 F.2d 60, 66 67 (D.C. Cir. 1987) (quoting Sierra Club v.
U.S.

753 F.2d 120, 127 (D.C. Cir. 1985))). The Court finds that

the Corps took the requisite hard look and made a convincing case for its finding.
Common between the two claims is the contention that the Corps failed to
adequately consider whether the BWM Mine #2 action might have significant
impacts upon the environment. On that alleged failure, Plaintiffs argue that the
Corps was arbitrary and capricious both in its awarding of a CWA § 404 permit to
BWM Mine #2 and in its finding that the action would have no significant impacts
on the environment. However, an examination of the administrative record reveals

Page 20 of 30

that the Corps followed proper procedure, and its FONSI conclusion therefore
warrants deference.22
The administrative record shows that the Corps did examine the potential
impacts from the proposed mining project by conducting a cumulative impacts
analysis, taking into account the direct and indirect effects of the project over a 14year period. Corps AR 3611-12. Moreover, the Corps employed the cumulative
effect of mining from before that period
and aquatic hab

Id. at 3616.23 The analysis specifically

22

See Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C. Cir. 1987)
NEPA process involves an almost endless series of judgment calls . . . . The line-drawing
23

In its description of the affected environment, the Corps noted:
In general, surface coal mining and timber removal activities have occurred within
the Lower Locust Fork and Middle Locust Fork watersheds for several decades.
Pre-SMCRA mining activities resulted in adverse impacts to the landscape
including the loss of forested areas streams and wetlands. As some of these areas
were left un-reclaimed adverse impacts continue to persist, mostly in the form of
poor water quality and compromised aquatic and terrestrial habitat. While most of
the un-reclaimed areas have naturally revegetated and in many instances have
become reforested there is still evidence of the past mining activities (refuse sites,
acid mine drain seeps, spoil piles, open mine pits etc). These pre-SMCRA and
pre-CWA impacts are relevant as they have set a baseline condition for water
quality and aquatic habitat values within the watershed. They also provide the
context for purposes of assessing the significance of impacts in our NEPA
analysis.

Page 21 of 30

addressed the areas in which discharges would occur. Id. at 3611. It further noted
the potential water quality impacts that could result.

Id.

The Corps then

considered those potential impacts in light of the compensatory mitigation required
by the permit. Id. at 3630. On the basis that those mitigation measures would
offset any potential harms, the Corps rationally concluded that the proposed
mining project would not have significant impacts upon the environment. 24 Unless

Corps AR at 3613.
24

The administrative record further noted that :
As explained above, the Corps assesses the potential significance of cumulative
impacts from the incremental impact of this proposal in the context of past
unregulated mining activities Pre-SMCRA mining activities as well as other
resource extraction activities most likely resulted in some cumulative impacts.
However, the area has been mined for several decades therefore impacts
associated with resource removal activities in most cases did not impact pristine
virgin areas. Mining activities conducted in the 19
stringently regulated as they are today, mining techniques were not necessarily
environmentally friendly stream evaluation and mitigation techniques were not
reliable and regulatory oversight was less vigorous. As a result, mining activities
most likely resulted in some cumulative impacts to the watershed. Currently,
Section 401 402 and 404 CWA requirements and SMCRA regulations are very
rigorous and mining activities are more closely regulated. Some of the mining
activities occurring at this time are located in areas that have been previously
impacted and will be reclaimed at the completion of mining Portions of the
proposed surface mine have been impacted by pre-SMCRA mining activities and
logging. Although the watershed has been impacted by pre and post SMCRA
mining, silviculture, and general development activities the analysis above
indicates the aquatic resources within the watershed have not experienced such
adverse impacts that they cannot provide the functions necessary to maintain

Page 22 of 30

that conclusion was arbitrary and capricious, the Corps was within its discretion to
issue the CWA § 404 permit and to forgo making an EIS for the project.
arguments to the contrary are insufficient.
Plaintiffs argue that the Corps erred by relying on compensatory mitigation25
required by the state-issued NPDES permit and not conducting an independent
analysis to ensure that the § 404 permit addresses possible threats to water quality
from permitted discharges. Although 40 C.F.R. § 230.10(b)(1) does reference
ly state that a § 404

aquatic life and its supporting ecosystem. Recent water quality and biological data
has indicated the watershed is sufficiently absorbing the impacts without
significant aquatic impairment and/or degradation. In this case, no compelling
data has been presented to indicate the aquatic resources within the watershed
have experienced such adverse impacts that they cannot provide the functions
necessary to maintain aquatic life and its supporting ecosystem.
Corps AR 3628-29.
25

have a neutral effect on water quality as a result of the mitigative actions, provided the applicant
adheres to the terms and conditions prescribed in the Section 402 NPDES permit requirements,
see also 40 C.F.R. §
(1) Mitigation is an important aspect of the review and balancing process on many
Department of the Army permit applications. Consideration of mitigation will occur throughout
the permit application review process and includes avoiding, minimizing, rectifying, reducing, or
compensating for resource losses. Losses will be avoided to the extent practicable.
Compensation may occur on-site or at an offsee also generally 40 C.F.R. §
325.4 (setting out the requirements for the conditioning of permits, which includes mitigation).

Page 23 of 30

permit requires independent consideration. The EPA guidance document cited by
Plaintiffs, while clearer, specifically cabins its analysis to states in the Appalachian
region, and is thus inapposite to actions taken in Alabama. See July 21, 2011 Final
Guidance on Improving EPA Review of Appalachian Surface Coal Mining Operations
under the CWA, NEPA, and the Environmental Justice Executive Order, at 1, n.1 (last
visited March 29, 2018).

The Court finds no cause to question the

s

reliance on the NPDES requirements.
Plaintiffs allege

s no-significant-impact conclusion was

irrational for flatly contradicting the findings of an ADEM study 26 cited within the
s own administrative record.

However, an examination of that record
27

s

26

The study focused on surface coal mining facilities in the Black Warrior River basin with
permitted discharges to wadeable streams. Sample locations were established at permitted
outfalls and upstream and downstream of those outfalls. Three reference stations were also
included in the study. A total of eleven stream stations, three reference stations, and six
permitted outfalls from treatment ponds were sampled during the period study.
27

The administrative record shows that the Corps considered public interest review factors

in the ASMC permits application, Alabama Soil and Water Conversation Committee, the ADEM
303(d) list, ASMC date, GIS date, OSM data, the ADEM study . . . and the Corps Regulatory
cumulative, indirect and direct impacts, ultimately arriving at the conclusion that the issuance of

Page 24 of 30

administrative record acknowledges the negative environmental impacts found
near mine outfalls. 28 Yet, it also cites the ADEM study as indicating that there is

the permit would have minimal environmental effects. Corps AR 3610-11; see 40 C.F.R. §
1500.4(k) (encouraging the integration of NEPA requirements with other environmental review
and consultation requirements).
28

Some of the key points of the study are listed as follows:
1.

2.
3.
4.
5.

6.

between discharges from surface coal mining treatment ponds and
macroinvertebrate community health is not definitive in this study.
The quality of available aquatic habitat in wadeable streams decreases as the
amount of disturbed acres increases in the watershed.
Measurements of whole effluent chronic toxicity varied between no toxicity
observed in 100% effluent to observed toxicity at an effluent concentration of
56%.
Concentrations of dissolved hardness-dependent metals did not exceed
applicable water quality criteria.
Total nitrogen concentrations increased significantly (p<0.05) from upstream
to downstream of treatment pond outfalls. This was not the case for total
phosphorus where concentrations were not significantly different (p>0.05)
from upstream to downstream. However, the increase in total nitrogen
downstream of treatment pond outfalls did not appear to result in a water
quality response at the downstream station, and nitrogen concentrations
decreased following reclamation.
The concentration of nickel in stream bottom sediment at 7 stations was
elevated above the concentration measured in sediment at ecoregional

7. The concentration of total arsenic in sediment at 3 stations exceeded the
concentration measured in sediment at ecoregional reference stations
Corps AR 3620-21.

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and macroinvertebrate community health;

29

and

Corps AR 3620, 22. The record indicates the Corps
took the ADEM study into account when making its FONSI determination.
Additionally, even if the administrative record could be construed as to find an
impact of true significance, which the Corps
can be avoided

preparation of an EIS

if the agency finds that changes or safeguards in the project

sufficiently reduce the impact to a minimum. Hill v. Boy, 144 F.3d at 1450. The
safeguards provided by the mitigation practices required of the permittee are
referenced throughout the administrative record and suffice for a finding that the
Corps reasonably believed those safeguards would prevent any potential impacts
from becoming significant.

impaired waters 303(d) list of water qual

29

The administrative record earlier notes in a discussion of impacts to other wildlife, that

macroinvertebrates in the intermittent stream, would be eliminated
as a result of
the Corps also noted that
reclamation plan, as required by ASMC, includes re-vegetation at the site and returning the area
to AOC, including drainage areas. There is the potential for intermittent flow to return in the
drainage areas, which could provide habitat for the macroinvertebrates. Once the area is
Id. This provides a basis for the finding
that the macroinvertebrates health was not definitive.

Page 26 of 30

error in issuing the permit.30
fill material shall be permitted if it: (1) causes or contributes, after consideration of
disposal site dilution and dispersion, to violations of any applicable State water
The administrative record shows that the Corps acknowledged
e ADEM 303(d) list and that
the cause for the listing was agriculture and abandoned surface mines. See Corps
AR 3614. Noting

-SMCRA mines located in the

watershed are in some stage of re-forestation and these forested areas would
continue to mature, provided additional man-induced impacts do not
Corps AR 3614-15. The Corps concluded that [s]urface water leaving the project
site would be expected to meet state water quality standards as required by the

30

The quote cited by Plaintiffs from Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 908 (11th Cir.
2007) spoke of the
list for purposes of targeting the water quality limited segments
for pollution control
in determining that a sta
more than 7.5 years old in developing its impaired waters list pursuant to the CWA violated EPA
regulations. The Court does not read this quote to mean that a new mine would automatically be
deemed to
The
Leavitt court explained that states decrease pollution in their WQLSs by establishing a total
for pollutants in a designated WQLS. Id. at 908. The Corps
completion is in 2019 for siltation and 2016 for nutrients, according to the 2014 Final 303(d)
List.
acknowledged
presence 303(d) list.

Page 27 of 30

NPDES permit; [and] [t]herefore, any adverse impacts to the water quality within

Id. at 3623. As such, [i]t [was] expected that the long terms effects on surface
water quality and quantity in the receiving streams would be negligible.

Id. at

3626. The Court finds that the administrative record as a whole does not indicate
that the Corps determination of a no significant impact was arbitrary or capricious
on this point.
Finally, Plaintiffs argue that the Corps irrationally failed to account for the
impacts of BWM Mine #1 which is adjacent to BWM Mine #2, when conducting its
CWA and NEPA analyses. This argument remains unconvincing. While Plaintiffs
have submitted evidence showing that the two mines share an NPDES permit, they
have not shown that they share permits under CWA § 404 or under the SMCRA. 31
Additionally, the mines have distinct ASMC permits. And regardless of whether
the projects are totally distinct, BWM Mine #1 is included among the list of local

Even if the two mines were at times mentioned together as part of a single project, that
fact alone is not dispositive. See Stewart Park & Reserve Coal v. Slater, 352 F.3d 545, 560 (2d Cir.
2003) (finding that two roadway projects earlier discussed as single project each had distinct
purposes and were not dependent on each other for an analysis under the NEPA and various
state laws in New York).
31

Page 28 of 30

area mines the Corps considered as part of its cumulative impacts analysis. See
Corps AR 3432-47. Overall, Plaintiffs have failed to meet their burden of showing
that the Corps acted arbitrarily and capriciously in granting a CWA § 404 permit
and in forgoing an EIS under the NEPA.
Under the deferential standard 32 this Court is bound to apply, the Court does
not find that the administrative record clearly warrants a finding of arbitrary or
capricious action on behalf of the Corps or any other Defendant. Thus, with
respect to the CWA and NEPA claims,
the

motion is due to be denied, and

cross motion is due to be granted.
IV.

CONCLUSION
motion for summary judgment (doc.

32) is due to be

cross motion for summary judgment (doc.

33) is due to be granted. An order consistent with this Memorandum of Opinion
will be entered contemporaneously herewith.

32

This standard requires substantial deference to the agency, not only when reviewing
decisions like what evidence to find credible and whether to issue a FONSI or EIS, but also when
reviewing drafting decisions like how much discussion to include on each topic, and how much
data is necessary to fully address each issue Sierra Club, 526 F.3d at 1361.

Page 29 of 30

DONE and ORDERED on August 14, 2018.

_____________________________
L. Scott Coogler
United States District Judge
190685

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