Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers
781 F.3d 1271
11th Cir.2015Background
- Environmental groups sue the Army Corps of Engineers over 2012 Nationwide Permit 21 (NWP 21) for surface coal mining discharges into navigable waters.
- District court held Riverkeeper had standing but barred suit as laches; court also upheld Corps’ minimal-effects determinations under CWA/NEPA.
- NWP 21 (2012) introduced a grandfathering provision (a) and new limits on new operations (b) including 1/2-acre and 300 feet; grandfathered projects unaffected by (b).
- Riverkeeper argues the Corps underestimated acreage and permitted environmental harms downstream, challenging CWA and NEPA analyses.
- Corps admitted on the eve of oral argument that it undercounted acres affected by NWP 21; district court remanded for reanalysis, but the party sought appellate review.
- Court reverses in part: Riverkeeper has standing; laches was improperly applied; remand for reconsideration of CWA/NEPA analyses is required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Riverkeeper has standing to challenge NWP 21 | Riverkeeper asserts injury from downstream water quality under CWA/NEPA. | Intervenors contend lack of standing due to downstream injuries not traceable to §404 actions or to NEPA. | Riverkeeper has standing under CWA and NEPA. |
| Whether laches bars Riverkeeper’s claims | Delay was reasonable due to need to investigate complex regulatory records and FOIA responses. | Delay was unexcused prejudice to industry; laches should bar claims. | District court erred; laches does not bar Riverkeeper’s suit. |
| Whether remand without vacatur is appropriate given Corps' miscalculation | Corps' undercount of affected waters undermines its minimal-effects finding; merits require remand and possible vacatur. | Remand without vacatur may be appropriate to correct the record; some courts vacate, others remand. | Remand to reconsider CWA/NEPA determinations; vacatur not compelled at this stage. |
Key Cases Cited
- Summers v. Earth Island Inst., 555 U.S. 488 (U.S. 2009) (procedural rights without concrete injury do not confer standing)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (three-part standing test; injury, causation, redressability)
- Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary-and-capricious review requires a reasoned explanation)
- Ky. Riverkeeper, Inc. v. Rowlette, 714 F.3d 402 (6th Cir. 2013) (minimal-impact analysis and cumulative effects in CWA context)
- Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209 (11th Cir. 2002) (hard look doctrine; plausible agency reasoning required)