Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers
833 F.3d 1274
| 11th Cir. | 2016Background
- Corps reissued Nationwide Permit 21 (NWP 21) in 2012 to regulate discharges from surface coal mining; it added strict limits for new projects (21(b)) but grandfathered prior 2007-authorized projects subject to district-engineer reverification (21(a)).
- NWP 21(b) imposed a 1/2-acre limit and 300 linear-foot limit for stream loss and prohibited valley fills for new activities; 21(a) allowed previously authorized activities to continue if verified to cause no greater loss and to result in minimal effects.
- Black Warrior Riverkeeper and Defenders of Wildlife challenged the reissuance under the APA, claiming the Corps’ decision was arbitrary and capricious and that selective grandfathering contradicted Corps’ own rationale that new limits were "necessary." Plaintiffs sought vacatur of grandfathered authorizations.
- On initial appeal the Eleventh Circuit remanded because the Corps admitted it had underestimated impacts by not fully accounting for 21(a) verifications; the Corps then produced a Revised Decision Document with updated impact estimates (showing much larger impacts from 21(a) verifications) but left NWP 21 unchanged.
- The district court again granted summary judgment to the Corps; the Eleventh Circuit affirmed, holding the Corps (1) reasonably required district-engineer verification and activity-specific conditions for 21(a), (2) considered both 21(a) and 21(b) in its minimal-impact analysis, and (3) gave adequate rationale for treating grandfathered and new activities differently.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Corps acted arbitrarily in treating grandfathered (21(a)) and new (21(b)) activities differently | Corps cannot say 21(b) limits are "necessary" to ensure minimal impacts yet exempt 21(a) projects from those limits | 21(a) includes verification, activity-specific conditions, and mitigation; Corps considered both 21(a) and 21(b) in its analysis | Court held Corps’ differential treatment was not arbitrary; verification + conditions render 21(a) consistent with minimal-impact requirement |
| Whether Corps’ cumulative-effects / minimal-impact analysis under CWA was adequate | Corps’ conclusion that overall impacts are minimal is unreasonable given large impacts from 21(a) verifications | Corps updated its analysis to include actual 21(a) verifications, considered procedural safeguards and mitigation, and made reasoned predictions | Court held the Corps took the requisite "hard look" and analysis was not arbitrary or capricious |
| Whether the Corps’ NEPA Finding of No Significant Impact (FONSI) was improper | FONSI is inconsistent with evidence of significant local harms and the Corps’ own statements that new limits were "necessary" | Corps prepared an Environmental Assessment, updated it, and reasonably concluded impacts are not significant given safeguards | Court upheld the FONSI as not arbitrary given the Corps’ consideration of relevant factors |
| Whether economic considerations made differential treatment unlawful | Corps relied on avoiding hardship to permittees which plaintiffs say is an improper basis | Corps relied on economic hardship as one factor among permissible alternatives and primarily relied on verifications/known universe of 21(a) projects | Court held economic considerations alongside legitimate environmental justifications did not render the decision arbitrary |
Key Cases Cited
- U.S. Army Corps of Eng’rs v. Hawks Co., Inc., 136 S. Ct. 1807 (2016) (defining scope of CWA discharge and Corps authority)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA requires a "hard look" but not particular substantive results)
- Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519 (1978) (NEPA prescribes procedural requirements, not specific outcomes)
- Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281 (1974) (uphold agency decisions of less-than-ideal clarity if path reasonably discernible)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard; courts may not supply agency’s missing reasoning)
- Sierra Club v. Van Antwerp, 526 F.3d 1353 (11th Cir. 2008) (standard for reviewing Corps' NEPA and CWA analyses)
- Miccosukee Tribe of Indians v. United States, 566 F.3d 1257 (11th Cir. 2009) (deference for agency scientific predictions)
- Crutchfield v. County of Hanover, 325 F.3d 211 (4th Cir. 2003) (contrast between individual and general permit procedures)
- Kentucky Riverkeeper, Inc. v. Rowlette, 714 F.3d 402 (6th Cir. 2013) (invalidated NWP 21(a) for inadequate mitigation documentation)