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Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers

ELR Citation: 45 ELR 20057
Nos. 14-12357, (11th Cir., 03/23/2015)

The Eleventh Circuit remanded the U.S. Army Corps of Engineers' conclusion that Nationwide Permit 21 (NWP 21), a general permit that allows surface coal mining operations to discharge dredged or fill materials into navigable waters, would have no more than minimal environmental effects under NEPA and the CWA. The court upheld the lower court's conclusion that an environmental group had standing to sue under the APA, and it reversed that court's determination that the suit was barred by laches. Any delay on the part of the environmental group was slight and excused by its need to adequately investigate and prepare its claims in this complex case. Moreover, the intervening mining companies' modest showing of harm does not outweigh the potential environmental benefits of allowing the group to proceed. As for the merits, the lower court had concluded that the Corps' determinations that NWP 21 would have only "minimal cumulative adverse effect" on the environment under the CWA, and "no significant impact" on the environment under NEPA, were neither arbitrary nor capricious. But on the eve of oral argument before the appellate court, the Corps admitted that it had underestimated the acreage of waters that would be affected by projects authorized under NWP 21. In light of this error, the Corps conceded that the lower court's decision must be reversed and the matter remanded for further consideration based on a more accurate assessment of the potential impacts. The court agreed. On remand, the Corps shall reconsider its conclusion that the environmental impacts of NWP 21 are minimal in light of all of the relevant data, including the Corps' recalculated figure for the acreage of waters affected by NWP 21.