Environmental Law

• Jurisdiction: United States,Federal
• Publication year: 2016
• Citation: Vol. 67 No. 4

Environmental Law

Travis M. Trimble

[Page 895]

Environmental Law

by Travis M. Trimble^*

In 2015,¹ the United States Court of Appeals for the Eleventh Circuit decided novel issues in two cases under the Clean Water Act (CWA).² In Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers,³ the court held remand of a Corps of Engineers permitting decision for reconsideration without also vacating the permit is a remedy within the court's discretion and was appropriate under the circumstances.⁴ In Riverkeeper v. U.S. Environmental Protection Agency,⁵ the court held appellate review of a non-final response by the Environmental Protection Agency (EPA) to a petition to withdraw Alabama's authority to administer the National Pollution Discharge Elimination System (NPDES) permitting program was improper.⁶ Also, in Altamaha Riverkeeper, Inc. v. Rayonier, Inc.,⁷ the United States District Court for the Southern District of Georgia concluded that an NPDES permit issued by the Georgia Environmental Protection Division did not include Georgia's narrative water quality standards for turbidity, color, and odor despite two potentially abmiguous references to those standards in the permit.⁸

In Black Warrior Riverkeeper, Inc. v. United States Army Corps of Engineers, the Eleventh Circuit remanded to the Corps of Engineers

[Page 896]

Nationwide Permit 21 (NWP 21),⁹ a general permit issued under Section 404 of the Clean Water Act (CWA),¹⁰ for the Corps to reconsider its decision that NWP 21 would have minimal impact on the environment, reversing the district court's ruling that the Corps had not acted arbitrarily and capriciously in reaching that determination.¹¹ However, the court did not vacate the permit and on an issue of first impression, held remand without vacatur was a remedy within the discretion of the court.¹² The court also held the plaintiff environmental advocacy group (Riverkeeper) had standing to challenge the issuance of the permit and the group's suit was not barred by laches even though it was filed nine months after the Corps issued the permit.¹³

Section 404 of the CWA requires a person desiring to discharge dredged or fill material into waters of the United States obtain a permit from the Corps of Engineers.¹⁴ Under § 404(e) of the Act, the Corps may authorize dredge or fill activity on a state, regional, or nationwide basis, rather than on an individual basis, for certain categories of discharges.¹⁵ To issue a permit on a general rather than individual basis, the Corps must determine that activities authorized by the permit are similar in nature and will cause only minimal adverse environmental effects when performed separately and also cumulatively.¹⁶

NWP 21, first issued in 1982,¹⁷ is a general permit allowing the discharge of dredged or fill material associated with surface coal mining and reclamation operations.¹⁸ Surface coal mining can result in the discharge of material in a variety of ways, including filling or burying streams or actually mining into and under streams to reach a coal seam.¹⁹

The previous version of NWP 21,²⁰ which had been issued in 2007 with a five-year term, expired in 2012, and the Corps reissued the permit with two new provisions intended to address the cumulative

[Page 897]

impacts of surface mining activities authorized under the permit.²¹ The 2012 version of NWP 21 was issued on February 21, 2012.²² It allowed for the reauthorization of mining operations previously allowed under the permit (the "grandfathered operations"), provided the Corps determined they continued to cause only minimal adverse impacts; however, new operations were required to comply with specific numerical limitations in the amount of stream they could destroy.²³ The grandfathered operations were not bound by these specific limitations, and as a result, forty-one grandfathered operations in the Black Warrior River watershed in Alabama, reauthorized under the 2012 version of NWP 21, together were allowed to fill approximately twenty-seven miles of streambed. The first grandfathered operation was reauthorized in May 2012. The deadline for submitting an application for reauthorization was in February 2013, and the last reauthorization was approved by April 2013.²⁴

Riverkeeper filed suit on November 25, 2013, under the CWA and the National Environmental Policy Act (NEPA)²⁵ to block the reauthorization of the grandfathered mining operations in the Black Warrior River watershed.²⁶ Riverkeeper contended (1) the reauthorization of the grandfathered mining operations previously allowed under the 2007 version without requiring the numeric limitations on new operations applicable under the 2012 permit amounted to an unlawful ten-year permit term for the grandfathered operations; (2) the Corps' cumulative impact analysis of the 2012 permit was arbitrary and capricious; (3) the Corps' reauthorization of operations in the Black Warrior River watershed was arbitrary and capricious; and (4) the Corps' "Finding of No Significant Impact" (FONSI)²⁷ under NEPA, as to the 2012 permit, was arbitrary and capricious.²⁸ In essence, the plaintiff argued "the Corps could not rationally have found" the new specific limits on stream destruction applicable to new operations were "necessary" to avoid significant environmental impact and, at the same time, conclude the

[Page 898]

cumulative impacts of the grandfathered projects, without specific limitations, would be minimal as required for a general (Nationwide) permit.²⁹

The district court denied Riverkeeper's motion for a preliminary injunction suspending the reauthorizations of the forty-one grandfathered mining operations under NWP 21. Then, on cross-motions for summary judgment by Riverkeeper, the Corps, and industry Intervenors, the district court ruled that Riverkeeper had standing to bring the suit, but its "delay" in filing suit until nine months after the deadline for seeking re-authorization was "inexcusable" and prejudiced the mining operations that relied on re-authorizations under NWP 21, thereby, warranting application of laches. Furthermore, the district court ruled that the Corps did not act arbitrarily and capriciously in concluding that the 2012 version of NWP 21 would have no more than minimal cumulative adverse effect on the environment. However, just prior to oral argument on appeal, the Corps conceded that concluding NWP 21 would have only minimal impact on the environment underestimated the number of acres of stream that would be affected by activities authorized under that permit.³⁰

On appeal, the Eleventh Circuit first held Riverkeeper's members had individual standing to bring the suit and Riverkeeper had organizational standing.³¹ In proving standing below, Riverkeeper showed its members used areas downstream from the forty-one grandfathered operations, and those operations caused aesthetic, recreational, and environmental harm within that area.³² The court noted that the Intervenors "have not shown that Riverkeeper has failed to meet any of [the] traditional components (injury-in-fact, causation, and redressability) of the standing inquiry."³³ Instead, the Intervenors argued the plaintiff did not have standing for a claim under § 404 of the CWA because the purpose of § 404 is to prevent the loss of waters of the United States, not to protect water quality downstream from a permitted operation. Intervenors argued Riverkeeper should have brought suit under § 402,³⁴ which imposes pollutant limitations on point source discharges into waters.³⁵

[Page 899]

The court rejected this argument and concluded, "Riverkeeper's alleged injuries are included within the zone of interests of § 404 and its implementing regulations, which expressly consider downstream water quality."³⁶ In any event, the court explained, the distinction between § 404 and § 402 did not affect the components of standing, which Riverkeeper had demonstrated.³⁷

Next, the court reversed the district court's holding and held laches did not bar Riverkeeper from filing suit nine months after the deadline for seeking reauthorization under NWP 21 had passed.³⁸ The court explained that Riverkeeper could have brought suit, at the earliest in May 2012, when the Corps reauthorized the first of the grandfathered operations.³⁹ But the court concluded it was reasonable for Riverkeeper to wait until February 2013, when the deadline for seeking reauthorizations had passed, so it would know the full extent of reauthorizations under NWP 21; subsequently, Riverkeeper filed suit nine to ten months after that time.⁴⁰ In addition, the court noted that it was "plainly legitimate" Riverkeeper needed time to "evaluate, investigate, and prepare its claims for litigation," even though the district court had given no weight to this explanation for the lapsed time.⁴¹ The court noted that the Corps was not obligated to, and did not, provide public notice of its reauthorizations.⁴² Therefore, Riverkeeper had no way to know the extent of filling operations reauthorized under NWP 21 without filing Freedom of Information Act⁴³ requests with the Corps, reviewing information it received, and preparing a case.⁴⁴ The court explained that "[i]f we were to hold that a plaintiff's reasonable need to fully investigate its claims does not excuse delay, we would create a powerful and perverse incentive for plaintiffs to file premature and even frivolous suits to avoid the invocation of laches."⁴⁵ Lastly, the court noted that Riverkeeper filed suit well within the applicable six-year

[Page 900]

statute of limitation and "there is a strong presumption that a plaintiff's suit is timely if it is filed before the statute of limitations has run."⁴⁶

Finally, the court reversed the district court's ruling that the Corps had not acted arbitrarily and capriciously in issuing a Finding of No Significant Impact as to NWP 21, although it could not conclude on the record the Corps had acted arbitrarily and capriciously.⁴⁷ The court explained...