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

ELR Citation: 46 ELR 20141
Nos. 15-14745, (11th Cir., 08/12/2016)

The Eleventh Circuit affirmed a lower court decision upholding the U.S. Army Corps of Engineers' 2012 decision to issue a general nationwide permit—NWP 21—authorizing discharges from certain coal mining activities into navigable waters. The 2012 version of NWP 21 contains two new provisions, a grandfathering provision that allows for the reauthorization of operations that were previously authorized under the 2007 permit, and a provision for new operations that adds several specific limits on stream-filling activities. Environmental groups challenged the 2012 NWP 21, arguing that it was contradictory for the Corps to impose stringent stream-fill limits on new operations but to decline to apply those very same limits to operations previously authorized by the 2007 permit. They alleged this was arbitrary and capricious under the CWA and NEPA because the Corps could not rationally have found that the new limits were "necessary" to avoid significant environmental impacts while also concluding that the impacts of grandfathered projects would be minimal. But there was nothing arbitrary and capricious about the Corps' decision to treat old and new activities differently under the two provisions of NWP 21, or in its finding that the activities authorized under both provisions would result in minimal individual and cumulative impacts to the aquatic environment. The Corps took a hard look at the entire record before reaching its CWA and NEPA determinations. Its decision to treat grandfathered-in permits differently than new permits was not arbitrary and capricious because the Corps considered the permit as a whole in making its finding of no significant impact.