BLACK WARRIOR RIVERKEEPER, INC., Defenders of Wildlife v. U.S. ARMY CORPS OF ENGINEERS, Lt General Thomas P. Bostick, U.S. Army Corps of Engineers, Col. Jon Chytka, U.S. Army Corps of Engineers, Mobile District
No. 15-14745
United States Court of Appeals, Eleventh Circuit
Date Filed: 08/12/2016
On July 7, 2016, we issued an order to show cause why this court should not summarily reverse the district court‘s hybrid dismissal of Wood‘s § 2254 petition, and remand the matter for a disposition consistent with our precedent. On July 14, 2016, Respondent filed its response to our order to show cause, acknowledging the district court‘s hybrid dismissal should be reversed and this matter should be remanded under the reasoning in Moore. Wood filed his response on July 25, 2016, asserting he has no objection to applying the “ruling and/or reasoning” in Moore to his mixed petition.1
Based on the foregoing, we reverse the district court‘s hybrid dismissal of Wood‘s § 2254 petition, and remand to the district court with instructions to vacate its judgment and dispose of Wood‘s petition in a manner consistent with Moore.
James M. Hecker, Public Justice, PC, Michael Senatore, Defenders of Wildlife, Washington, DC, Catherine Wannamaker, Southern Environmental Law Center, Atlanta, GA, Eva Lovelace Dillard, Black Warrior Riverkeeper, Inc., Birmingham, AL, for Plaintiff-Appellant Defenders of Wildlife.
David R. Boyd, Montgomery, AL, Philip Stephen Gidiere, III, Joel Iverson Gilbert, Adam Kent Israel, Birmingham, AL, David Welles Mitchell, Washington, DC, Balch & Bingham, LLP, for Intervenors-Appellees Alabama Coal Association, MS & R Equipment Co., Inc., Reed Minerals, Inc., Twin Pines, LLC, and Walter Minerals, Inc.
Michael Thomas Gray, U.S. Department of Justice c/o U.S. Army Corps of Engineers, Jacksonville, FL, Paul Cirino, Leslie M. Hill, U.S. Department of Justice, Ruth Ann Storey, USDOJ Environmental & Natural Resources Division, Washington, DC, for Defendants-Appellees.
Before TJOFLAT and MARCUS, Circuit Judges, and STEELE,* District Judge.
MARCUS, Circuit Judge:
In this appeal, we consider—for the second time—whether the United States Army Corps of Engineers’ (“Corps“) 2012 decision to reissue Nationwide Permit 21 (“NWP 21“), a general permit regulating discharge of dredged or fill materials into navigable waters by surface coal mining operations, was arbitrary and capricious. Under Section 404 of the Clean Water Act (“CWA“), the Corps may authorize the discharge of fill materials into navigable waters of the United States by issuing a “general permit” only if those activities will result in minimal individual and cumulative adverse effect on the aquatic envi-
The first time around, the district court granted summary judgment to the Corps and Riverkeeper appealed. However, on the eve of oral argument, the Corps admitted that it had failed to consider certain important information in reaching its decision, so we remanded the case to the district court, which in turn remanded it to the Corps for further review. After considering the omitted data, the Corps reaffirmed its decision to issue NWP 21. Riverkeeper renewed its challenges, and the district court once again granted final summary judgment in favor of the Corps. Riverkeeper again appeals, arguing that the Corps’ decision to treat new and old activities differently can‘t hold water. After thorough review and with the benefit of oral argument, we affirm.
I.
A.
As we explained the first time we heard this case, see Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng‘rs., 781 F.3d 1271, 1275-78 (11th Cir. 2015), Riverkeeper‘s challenge involves several complex statutory and regulatory schemes designed, in substantial measure, to ensure that federal agencies conduct a thorough assessment of the environmental impacts of their proposed actions. The Clean Water Act prohibits the “discharge of any pollutant” into “navigable waters” unless in compliance with specified provisions of the Act.
The Corps reviews “individual” permit applications on a case-by-case basis under Section 404(a).
To avoid the burden of individual permit evaluations, Congress authorized the Corps to issue general permits to cover categories of discharges that, as a group, have only minimal impacts on the waters of the United States. H.R. Rep. No. 95-830, at 98 (1977). General permits may be issued “on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material” by the Corps’ Chief of Engineers or a District Engineer, which is a regional official, but only after an extensive administrative process and analysis at the national or regional level.
After performing this evaluation, the Corps must make a written determination of the effects of a proposed activity “on the physical, chemical, and biological components of the aquatic environment.”
The Corps is also required to comply with the National Environmental Policy Act. NEPA serves the dual purpose of informing agency decisionmakers of the environmental effects of proposed federal actions and ensuring that relevant information is made available to members of the public so that they “may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA‘s mandate to agencies is “essentially procedural.... It is to insure a fully informed and well-considered decision....” Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Thus, “it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Robertson, 490 U.S. at 350. NEPA requires federal agencies to prepare an Environmental Impact Statement for any “major Federal action[] significantly affecting the quality of the human environment,” which can include nationwide permits issued by the Corps.
B.
This case involves a challenge to Nationwide Permit 21 (“NWP 21“), a general permit issued by the Corps. On February 21, 2012, after affording the public the opportunity to participate in an administrative process that included notice and comment, the Corps issued fifty nationwide permits, including NWP 21. Reissuance of Nationwide Permits, 77 Fed. Reg. 10,184 (Feb. 21, 2012). NWP 21 authorizes “[d]ischarges of dredged or fill material into waters of the United States associated with surface coal mining and reclamation operations.” Id. at 10,274.
Surface coal mining involves the discharge of dredged or fill material in a variety of ways. To reach underground coal seams, surface mining operations must dig through and remove a mixture of soil, rock, and coal residue commonly referred to as “overburden,” which is replaced once the coal has been extracted. Excess overburden must be deposited somewhere else—occasionally filling or burying streams, or in the form of a much larger “valley fill,” which is exactly what it sounds like. In other cases, the coal seam runs underneath the stream itself, and the operation will “mine through” the stream. Mining operations also generate and discharge material when they create sediment ponds and build roads, processing plants, and other mining infrastructure. As a result of the mining process, drainage from the mining site, which contains substantial amounts of sediment, salt, and metals, can seep into and contaminate larger waterways. This runoff may continue for decades after the mine has closed. The discharge of dredged or fill material, therefore, may have consequences for water quality and the health of aquatic ecosystems throughout the entire watershed.
The Corps has long struggled to ensure that the environmental impacts of surface mining operations are minimal. Nationwide Permit 21 was first issued in 1982, see Interim Final Rule for Regulatory Programs of the Corps of Engineers, 47 Fed. Reg. 31,794, 31,833 (July 22, 1982), and has subsequently been amended and reissued many times. The 2007 version did not place any limits on the length of streams that could be filled by authorized activities. See Reissuance of Nationwide Permits, 72 Fed. Reg. 11,092, 11,184 (Mar. 12, 2007). The Corps eventually became concerned that activities authorized by NWP 21 were resulting in greater environmental impacts than anticipated, and it suspended NWP 21 in six states in the Appalachian Region in 2010: Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. See Suspension of Nationwide Permit 21, 75 Fed. Reg. 34,711, 34,712 (June 18, 2010). The Corps did not suspend NWP 21 in Alabama, although the Environmental Protection Agency subsequently stated in a letter to the Corps that “the same concerns and science that brought about the six state suspension appl[y] to the coal fields of Alabama.” The 2007 NWP 21 expired on March 18, 2012. Reissuance of Nationwide Permits, 72 Fed. Reg. at 11,092.
In 2012, the Corps adopted a new course intended, in part, to “address[] the concern that led to [its] previous suspension of NWP 21 in the six Appalachian states.” Reissuance of Nationwide Permits, 77 Fed. Reg. at 10,205. During the notice and comment period, the Corps proposed three options for reauthorizing NWP 21 after its expiration:
The first option was not to reissue NWP 21 and to let it expire on March 18, 2012. . . . Option 2 was to reissue NWP 21 with a ½-acre limit, including a 300 linear foot limit for the loss of stream bed. Under Option 2, NWP 21 would not
As a result, the 2012 version of NWP 21, which authorized stream-filling operations for an additional five years, consisted largely of two new provisions.1 First, para-
Along with the revised permit, the Corps issued a sixty-four page Decision Document explaining the rationale behind its revisions, which included the Corps’ Clean Water Act and National Environmental Policy Act analyses. Specifically, the Corps estimated that, in total, NWP 21 would be used approximately 61 times per year on a national basis, resulting in impacts to approximately 26 acres of waters of the United States, and requiring ap-
proximately 62 acres of compensatory mitigation to offset the impacts. The Corps concluded, as required by the CWA, that activities authorized by NWP 21 would not have more than minimal cumulative adverse effect on the environment. It also concluded, pursuant to NEPA, that NWP 21 would not significantly affect the environment, and that an Environmental Impact Statement would therefore not be required. Certain portions of the Decision Document suggested that the limitations imposed on new authorizations under paragraph 21(b) were “necessary to constrain the adverse effects to the aquatic environment, to ensure compliance with the statutory requirement that general permits, including NWPs, may only authorize those activities that have minimal individual and cumulative adverse effects on the aquatic environment.”
C.
Riverkeeper is an environmentalist group whose members use waters of the Black Warrior River watershed, in west-central Alabama, that flow downstream from mining sites authorized to discharge material under NWP 21. According to Riverkeeper, these projects have had a profound effect on the quality of the waters within the Black Warrior River watershed. Its members have observed, for example, that waters downstream from mining sites are discolored and clouded with sediment and silt. Impaired water quality, they claim, has “decrease[d] [their] aesthetic
In order to block the forty-one reauthorizations granted by the Corps pursuant to NWP 21(a) and therefore avert further claimed environmental damage, Riverkeeper filed this lawsuit in the United States District Court for the Northern District of Alabama on November 25, 2013, against the Corps and several Corps officials. The gravamen of Riverkeeper‘s complaint is that it was contradictory for the Corps to impose stringent stream-fill limits on new operations, but, at the same time, decline to apply those very same limits to operations previously authorized by the 2007 NWP 21 and subsequently reauthorized by the 2012 version. To put it slightly differently, Riverkeeper‘s argument is that the Corps could not rationally have found (as the Decision Document suggested) that these new limits were “necessary” to avoid significant environmental impacts, and then conclude regardless that the impacts of grandfathered projects would be minimal. Specifically, Riverkeeper‘s complaint raised four counts: (1) paragraph (a) of NWP 21, in effect, amounts to an unlawful ten-year permit term, in violation of
Eight days after it initiated this suit, Riverkeeper moved for a preliminary injunction to suspend all reauthorizations in the Black Warrior River watershed. On December 23, 2013, the Alabama Coal Association and several mining companies—MS & R Equipment Co., Inc., Reed Minerals, Inc., Twin Pines, LLC, and Walter Minerals, Inc.—moved to intervene, citing the harm that Riverkeeper‘s requested injunction would cause to their mining operations. Their motion to intervene was granted without objection from Riverkeeper. At a February 2014 hearing on Riverkeeper‘s motion for a preliminary injunction, the district court refused to hear any argument on the merits because Riverkeeper could not post a $300,000 bond. The district court denied Riverkeeper‘s motion on February 18. Riverkeeper then moved for summary judgment on February 20. At a hearing on March 3, Riverkeeper voluntarily dismissed Count 3 of its complaint, claiming that it was no longer directly challenging the forty-one reauthorizations. On April 2, the Corps filed a cross-motion for summary judgment, addressing the merits; a week later, the Intervenors filed their motion to dismiss or for summary judgment, addressing the merits as well as standing and laches.
Ultimately, the district court concluded that Riverkeeper had standing under Article III of the U.S. Constitution and the Administrative Procedure Act to mount this lawsuit, but that its claims were barred by the doctrine of laches, and, in any event, failed on the merits. The dis-
On March 23, 2015, a panel of this Court vacated the district court‘s decision. See Black Warrior Riverkeeper, 781 F.3d at 1292. It agreed with the district court that the plaintiffs had standing to pursue both its Clean Water Act and National Environmental Policy Act claims challenging the reissuance of NWP 21. Id. at 1283. But it found that the district court had abused its discretion in finding that the plaintiffs’ suit was barred by laches, both because they had shown adequate excuse for their delay in filing suit and because their delay did not prejudice the defendants or intervenors. Id. at 1284-85, 1287.
Turning to the merits, the panel explained that Riverkeeper challenged only a single error of the Corps’ reasoning, which it called the “differential treatment error.” Id. at 1288. In short, Riverkeeper argued that “it was arbitrary and capricious for the Corps to conclude, on the one hand, that the new stream-fill limits contained in paragraph (b) of NWP 21 are necessary to avoid significant environmental effects, but
on the other, to decline to apply them to projects reauthorized pursuant to paragraph (a).” Id. However, the panel concluded that it could not resolve the merits of the suit because “the Corps admitted on the eve of oral argument that it underestimated the number of acres of waters that may be impacted by NWP 21.” Id. Specifically, the Corps had failed to “take into account that activities re-verified under paragraph (a)“—the grandfathered-in activities that were not subject to the new limitations imposed by paragraph 21(b)—“could impact more than a half-acre of waters of the United States.” Id. On this murky record, the Court could not discern whether the Corps’ error was “truly significant” and whether the Corps’ “ultimate conclusion—that NWP 21 will have minimal effects—was unlawful.” Id. The panel declined to vacate NWP 21, concluding that vacatur was not mandatory and that it had the equitable discretion to remand the matter to the Corps without vacating the agency‘s action. Id. at 1289. However, viewing the undeveloped record, the panel could not decide in which direction the equities tipped. Id. at 1291. Therefore, the panel vacated the district court‘s decision and remanded with instructions to the district court to remand the case to the Corps with a one-year time limit to reconsider its decision, and to determine whether any further relief, including vacatur, was required in light of the Corps’ admitted error. Id.3
D.
The district court sent the case back upstream to the Corps “for a thorough reevaluation of the Corps’ CWA and NEPA determinations in light of all of the
Six weeks later, on August 7, 2015, the Corps submitted a Revised Decision Document to the district court. The Revised Decision Document did not result in any changes to NWP 21, but did provide an updated analysis of the impacts of the permit. It analyzed the actual impact of paragraph (a), which was the flaw that the Corps had confessed to on the eve of oral argument. Because paragraph (a) required new verifications of the previously authorized projects to issue before March 18, 2013, a date which had long passed by the time the Revised Decision Document was drafted, the Corps was able to provide an estimate of environmental impact that encompassed all of the NWP 21(a) verifications that could be issued. In all, 88 verifications were issued under 21(a), with impacts to approximately 503 acres and 280,700 linear feet of waters of the United States. To offset those impacts, the Corps required compensatory mitigation of approximately 653 acres and 377,300 linear feet. The Corps determined that 21(b) would be used approximately 7 times per year nationwide, resulting (over the life of the permit) in impacts to approximately 6.5 acres and 17,000 linear feet of waters of the United States, and requiring 11.5 acres and 21,000 linear feet of compensatory mitigation to offset the impacts. Thus, on average, each of the 21(a) authorizations impacts nearly 6 acres and 3,200 linear feet of waters of the United States (in comparison with the ½-acre and 300 linear feet limits imposed on all 21(b) authorizations).
The Revised Decision Document contained essentially the same statements on which the Riverkeeper‘s “differential treatment error” argument had been based. For example, it states that the acreage and linear foot limits in NWP 21(b) “are necessary to constrain the adverse effects to the aquatic environment to ensure compliance with the statutory requirement that general permits, including NWPs, may only authorize those activities that have minimal individual and cumulative adverse effects on the aquatic environment.” It also provides that “[t]he new acreage and linear foot limits will ensure that this NWP contributes no more than minimal individual and cumulative adverse effects to the aquatic environment,” and that “[t]he Corps has determined that the changes to NWP 21 are necessary to comply with the requirements of Section 404(e) of the Clean Water Act.”
The Corps’ overall findings were not affected by its adjustment to the impact of 21(a). It concluded, as required by the CWA, that “despite the higher impact and compensatory mitigation amounts expected to occur across the country during the five year period this NWP is in effect, . . . the individual and cumulative adverse effects on the aquatic environment resulting from the activities authorized by this NWP will be minimal.” The Corps also made a “Finding of No Significant Impact” under NEPA.
After reviewing the Revised Decision Document, the parties renewed their cross-motions for summary judgment. The district court again granted the Corps’ motion for summary judgment and denied the plaintiffs’ motion for summary judgment. It noted that Riverkeeper raised the same “differential treatment error” argument
Riverkeeper timely appealed to this Court for the second time.
II.
“We review the district court‘s decision to grant summary judgment to the Corps and the Intervenors on the merits de novo, while applying the appropriate standard of review to the agency‘s decision.” Black Warrior Riverkeeper, 781 F.3d at 1288. We review the Corps’ permitting decisions, as well as its Finding of No Significant Impact and decision not to prepare an Environmental Impact Statement pursuant to NEPA, under the Administrative Procedure Act‘s arbitrary and capricious standard. Black Warrior Riverkeeper, 781 F.3d at 1288. Under the Administrative Procedure Act, we must “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Our task ultimately is to “ensure that the agency took a ‘hard look’ at the environmental consequences of the proposed action.” Sierra Club v. U.S. Army Corps of Eng‘rs, 295 F.3d 1209, 1216 (11th Cir. 2002). An agency has satisfied the “hard look” requirement if it has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. (quotation marks omitted).
III.
A.
In view of the substantial deference we afford agency action, Riverkeeper faces an upstream swim. It renews its “disparate treatment” argument, contending again that the Corps’ CWA and NEPA determi-
For starters, we think that the text of NWP 21(a) goes a long way to supporting the Corps’ determination that authorized activities under 21(a) will have minimal individual and cumulative adverse effects. NWP 21(a) provides that a previously authorized mining activity under the 2007 NWP 21 can only be reauthorized under 21(a) if a district engineer determines that: the activity does not create any greater “loss of waters” than it did under the 2007 permit; the activity “will result in minimal individual and cumulative adverse effects“; and it complies with additional “applicable regional conditions and any activity-specific conditions added to the NWP authorization by the district engineer, such as compensatory mitigation requirements.” Reissuance of Nationwide
Permits, 77 Fed. Reg. at 10,274 (emphasis added). These explicit requirements apply to all 21(a) authorizations and substantially undercut Riverkeeper‘s argument that the new 21(b) limitations are the only way that the Corps can ensure minimal individual and cumulative adverse environmental effects. On its face, Rule 21(a) expressly requires a district engineer to determine that a grandfathered-in permit will have minimal effects before authorizing it. Riverkeeper has not provided any reason to believe that NWP 21(a) will fail to operate according to its terms, or that the district engineers will abandon the many tasks they are obliged to perform.
In fact, the Revised Decision Document explains that NWP 21(a) will operate exactly as the text suggests it will: “For those previously authorized surface coal mining activities, the district engineer must determine that the activity continues to result in minimal individual and cumulative adverse effects on the aquatic environment.” The Revised Decision Document later emphasizes that NWP 21(a) activities must be confirmed by the district engineer to “result[] in minimal individual and cumulative adverse effects on the aquatic environment,” and that the district engineer can revise any applicable regional conditions and activity-specific conditions, including compensatory mitigation requirements, “if the existing ones are determined not to be adequate to ensure minimal adverse effects.” And, indeed, if the district engineer determines that the cumulative adverse effects of NWP 21-authorized activities are more than minimal in a “specific watershed” (such as the Black Warrior River Watershed), they are authorized to require individual permits or add conditions to the NWP on a case-by-case basis. Finally, the Revised Decision Document
Moreover, the Corps considered both the 21(a) and (b) authorizations in evaluating whether the permits met the CWA‘s and NEPA‘s minimal impact requirements. The Revised Decision Document makes it abundantly clear throughout that the minimal impact analysis is based on both 21(a) and (b) activities:
The estimated contribution of this NWP to the cumulative effects to aquatic resources in the United States during the five year period that the NWP would be in effect, in terms of the estimated number of time this NWP would be used until it expires and the projected impacts and compensatory mitigation, is provided in Section 6.2.2. The activities authorized by this NWP, including the activities authorized under paragraphs (a) and (b) of this NWP, will result in a minor incremental contribution to the cumulative effects that have occurred to wetlands, streams, and other aquatic resources in the United States because, as discussed in this section, they are one of many activities that affect those resources.
The Corps’ minimal impact analysis plainly considered data for “all of the NWP 21(a) verifications that could be issued during the period [the 2012] NWP 21 is in effect,” which was available at the time of the Revised Decision Document “because the terms of NWP 21(a) state that those verifications should generally be issued on or before March 18, 2013,” and the Revised Decision Document was produced in August 2015. Thus, it seems to us that the Corps considered the relevant factors in performing its environmental impact analysis.
Riverkeeper does not contest the accuracy of the environmental impact estimates provided by the Corps, nor does it explain why the actual acreage impacts of projects under 21(a)—for which the Corps had confirmed data at the time it drafted the Revised Decision Document—are more than “minimal” as that term is used in the Clean Water Act. Rather, it invites us to parse the language of the Revised Decision Document for statements suggesting that 21(b)‘s ½-acre and 300 linear-foot limits are the only means of ensuring minimal environmental impact. As we recounted above, there are a few statements in the Revised Decision Document that suggest that the 21(b) limitations are “necessary” to ensure minimal environmental impacts. But, under arbitrary and capricious review, we must “uphold a decision of less than ideal clarity if the agency‘s path may reasonably be discerned.” Bowman Transp., 419 U.S. at 286. And we have no trouble discerning that the Corps considered the limitations imposed under both sections of NWP 21, as well as general permit conditions applicable to all NWPs in reaching its environmental impact determinations.
In estimating the environmental impact of the new NWP 21, the Corps assessed “individual and cumulative effects” by considering “the terms and limits of the NWP, pre-construction notification requirements,”5 and the standard NWP general
The Revised Decision Document elaborates that “[c]ompensatory mitigation required for activities verified under the 2007 NWP 21 [i.e., the 2012 grandfathered activities under 21(a)] will continue to be required, and may be augmented if the district engineer determines that they do not adequately compensate for losses of aquatic resource function and ensure minimal adverse effects.” In fact, the Corps’ ultimate “minimal impact” finding explicitly referenced all of the limits that NWP 21 imposes on permitted activities, not just those contained in 21(b): “Compliance with the terms and conditions of this NWP, including the mitigation general condition (general condition 23), as well as compliance with regional conditions imposed by division engineers and activity-specific conditions added to NWP verifications by district engineers, will ensure that the activities authorized by this NWP will result in no more than minimal individual and cumulative adverse effects on the aquatic environment.” Thus, it seems plain to us that the Corps took a hard look at the environmental impact of authorizations under both 21(a) and (b), and determined that the restrictions imposed on each set of authorizations were sufficient to ensure that they result in no more than minimal individual and adverse cumulative effects.
Throughout the Revised Decision Document, the Corps placed special reliance on compensatory mitigation as a means of ensuring minimal net environmental impacts. Riverkeeper criticizes the Corps’ reliance on compensatory mitigation as a “simplistic calculation” based on the erroneous assumption that compensatory mitigation will always fully offset the adverse environmental impacts of dumping surface spoil in streams.6 But nothing in the Revised Decision Document suggests that the Corps’ relied on compensatory mitigation to fully offset the environmental impacts of permitted activities—indeed, the Corps’ analysis suggests that compensatory mitigation is simply one of many restrictions applicable to 21(a) and (b) authorizations
Moreover, we must afford the Corps special deference in this area because it “is making predictions, within its area of special expertise, at the frontiers of science . . . as opposed to simple findings of fact.” Miccosukee Tribe, 566 F.3d at 1264. As evidenced by the numerous scientific research papers discussed in the Revised Decision Document, the minimum impact analysis involves difficult predictions about how coal mining activities will affect complex ecosystems, and how district engineers will be able to offset those effects through permit-specific requirements and compensatory mitigation. This is not an area where we may easily second-guess the Corps, especially considering that Riverkeeper has not contested any of the Corps’ data or even argued that its estimates exceed “minimal” impact as that term is used in the CWA. For all of these reasons, we find that the Corps’ environmental impact findings under the CWA and NEPA were not arbitrary and capricious.
B.
Relatedly, the Riverkeeper claims that the Corps has not articulated a sufficient rationale for treating similar mining activities differently under NWP 21(a) and (b). See Yetman v. Garvey, 261 F.3d 664, 669 (7th Cir. 2001) (“A long line of precedent has established that an agency action is considered arbitrary when the agency has offered insufficient reasons for treating similar cases differently.“). It argues that the only reason for the differential treatment is to alleviate the coal mining companies’ financial burden of obtaining individual permits, which Riverkeeper maintains is not a permissible consideration under the Clean Water Act. We remain unpersuaded.
Riverkeeper is correct that one of the Corps’ principal justifications for grandfathering in 21(a) permits was economic hardship to the regulated companies. Indeed, the Revised Decision Document acknowledged that the purpose of including the grandfather provision under 21(a) was “to reduce hardships on permittees who previously obtained authorization under the NWP 21 issued on March 12, 2007, and invested substantial resources in reliance on that NWP authorization,” while also protecting the aquatic environment. We also agree with Riverkeeper that—as the Corps concedes—the Corps could not rely on economic considerations to issue a general permit that does not comply with the Clean Water Act‘s minimal impact requirements.
Nevertheless, Riverkeeper‘s argument is unpersuasive. For starters, the Corps was not required to impose identical restrictions on applications under the two provisions of NWP 21. The Clean Water Act requires only that the activities governed by a general permit are “similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.”
Moreover, the Revised Decision Document evinces an additional, reasonable basis for treating authorizations under 21(a) and (b) differently. Paragraph (a) only applies to a well-defined and limited subset of activities that can be reliably verified to have minimal environmental impact. At the time that it drafted the 2012 NWP 21, the Corps knew the entire universe of potential projects under 21(a) because they had all already been operating for five years by that time, and, notably, by the time that it drafted the Revised Decision Document, it had impact data for “all of the NWP 21(a) verifications that could be issued during the period [the 2012] NWP 21 is in effect.” In contrast, for new projects under 21(b), the Corps had to rely on estimates of potential use over the five year term. In fact, the Revised Decision Document cited “the difficulty of documenting minimal adverse effect determinations for losses of aquatic resource area and functions that exceed those allowed in other NWPs” as a reason for moving away from preconstruction review and instead imposing strict caps on new projects. But that difficulty is substantially less relevant for grandfathered-in permits that had already been operating for years at the time that NWP 21 was issued. The Corps reasonably concluded that this subset of projects presents less of a risk of harm to the aquatic environment, while deciding to hold new—and, therefore, more unpredictable—projects to a different, and higher, standard.7 We find that the Corps has provided a “satisfactory explanation for its action” based on its findings in the Revised Decision Document, so we will (as we must) defer to its decision. State Farm, 463 U.S. at 42-43.
The long and short of it is, there was nothing arbitrary and capricious about the Corps’ decision to treat old and new activities differently under the two provisions of this Nationwide Permit, or in its finding that the activities authorized under both provisions would result in minimal individual and cumulative impacts to the aquatic environment. Accordingly, we affirm the judgment of the district court granting final summary judgment to the Corps.
AFFIRMED.
Notes
21. Surface Coal Mining Activities. Discharges of dredged or fill material into waters of the United States associated with surface coal mining and reclamation operations.
(a) 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. The district engineer may extend the February 1, 2013, deadline by so notifying the permittee in writing, but the permittee must still cease all activities if he or she has not received written verification from the Corps by March 18, 2013, until such verification is received.
(b) 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 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 discharge must not cause the loss of greater than ½-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
(3) 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.
Notification: For activities under paragraph (b) of this NWP, the permittee must submit a pre-construction notification to the district engineer and receive written authori-zation prior to commencing the activity. (See general condition 31.) (Sections 10 and 404)
Reissuance of Nationwide Permits, 77 Fed. Reg. at 10,274.