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Black Warrior Riverkeeper Inc. v. United States Army Corps of Engineers

United States District Court, N.D. Alabama, Southern Division

December 14, 2018

BLACK WARRIOR RIVERKEEPER, INC., et al., Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, and GLOBAL MET COAL USA CORP., Defendant-Intervenor.

          MEMORANDUM OPINION

          JOHN E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE

         This case involves the issuance of a permit by the United States Army Corps of Engineers (“Corps”) for the Black Creek Mine pursuant to Section 404 of the Clean Water Act (“CWA”). The permit authorizes Global Met Coal Corporation (“Global Met”) to discharge dredge or fill material into waters of the United States, specifically Crooked Creek and the Locust Fork of the Black Warrior River, in Jefferson County, Alabama, in connection with surface coal mining operations. Plaintiffs Black Warrior Riverkeeper, Inc. and Defendants of Wildlife contend the permitting violates the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531- 1544, as well as the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370f.[1] Plaintiffs ask the court[2] to vacate and remand the permit for compliance with these statutes.

         The court has before it three motions for summary judgment. Plaintiffs filed a motion for summary judgment (doc. 54), and each Defendant filed a cross motion for summary judgment, (docs. 59, 61). All motions are fully briefed, (docs. 55, 58, 59-1, 60, 62-64), and ripe for decision. For the reasons that follow, Plaintiff's motion for summary judgment is due to be denied and Defendants' motions for summary judgment are due to be granted.

         I. REGULATORY FRAMEWORK

         Two statutes are at play in this case, the ESA and the NEPA. Before diving into the factual and procedural background of the case, the court first discusses the underlying regulatory framework for the permit decision at issue.

         A. The Endangered Species Act

         The ESA charges federal agencies with the task of carrying out the Congressional policy of conserving endangered or threatened plant and animal species. 16 U.S.C. § 1531(b). Section 4 of the ESA directs the Secretaries of the Interior and Commerce to determine whether a species should be listed as either “endangered” or “threatened.” 16 U.S.C. § 1533. It also directs them to designate critical habitats for such listed species to the “maximum extent prudent and determinable.” 16 U.S.C. § 1533(a)(3)(A).

         To that end, section 7 of the ESA requires every federal agency to insure that its actions are not likely to “jeopardize the continued existence of any species listed as endangered or threatened or result in the destruction or adverse modification of habitat of such species. . . .” 16 U.S.C. § 1536(a)(2). If the agency proposing the action (“action agency”) determines that its action will have “no effect” on listed species or critical habitat, no consultation is required. See 50 C.F.R. § 402.14(a). If, however, the action agency determines that its action “may affect” a listed species or critical habitat, it must consult informally or formally with either the Fish and Wildlife Service (“the Service”) or the National Marine Fisheries Service (“NMFS”), depending on the species at issue. 50 C.F.R. § 402.14(a)-(b).

         Informal consultation is “an optional process that includes all discussions, correspondence, etc., between [an action agency and consulting agency], designed to assist the [action] agency in determining whether formal consultation . . . is required.” 50 C.F.R. § 402.13(a). “If during informal consultation it is determined by the [action] agency, with the written concurrence of the [consulting agency], that the action is not likely to adversely affect listed species or critical habitat, [then] the consultation process is terminated, and no further action is necessary.” Id. But if formal consultation is required, the consulting agency must prepare a biological opinion advising the action agency regarding “whether the action . . . is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.14(g)(4).

         B. The National Environmental Policy Act

         Agencies are also required by statute to consider the environmental consequences of their actions more generally. See Hill v. Boy, 144 F.3d 1446, 1449 (11th Cir. 1998); C.A.R.E. Now, Inc. v. Fed. Aviation Admin., 844 F.2d 1569, 1572 (11th Cir. 1988). While not a substantive environmental statute, NEPA creates “a particular bureaucratic decisionmaking process” and has “twin aims.” Baltimore Gas & Elec. Co. v. Natural Res. Defense Council, 462 U.S. 87, 97 (1983). First, NEPA forces government agencies to “consider every significant aspect of the environmental impact of a proposed action.” Id. (quotation omitted). Second, NEPA mandates that government agencies inform the public of the potential environmental impacts of proposed actions and explain how their decisions address those impacts. Id.

         “NEPA establishes procedures that a federal agency must follow before taking any action.” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008). To comply with NEPA, an agency must first determine whether the action is a “major federal action[] significantly affecting the quality of human environment.” 42 U.S.C. § 4332(c); Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1214-15 (11th Cir. 2002). This determination generally requires preparation of an environmental assessment (“EA”). 40 C.F.R. § 1501.4; Hill, 144 F.3d at 1450). The EA is a brief and concise document containing sufficient evidence and analysis that allows the agency to determine whether to prepare a more detailed statement of environmental consequences, known as an Environmental Impact Statement (“EIS”). 40 C.F.R. §§ 1501.4, 1508.9. The EA must “include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” 40 C.F.R. § 1508.9(b). This review includes both the direct and indirect impacts. 40 C.F.R. § 1508.8. “The EA should provide enough evidence and analysis to guide the agency to one of two conclusions: (1) a finding that the project will have a significant effect, or (2) a finding of no significant impact.” Sierra Club, 295 F.3d at 1215. If the Corps decides that the environmental consequences of the action are not sufficient to justify the preparation of an EIS, the agency must prepare a finding of no significant impact “briefly presenting the reasons why an action . . . will not have a significant effect on the human environment and for which an [EIS] therefore will not be prepared.” 40 C.F.R. § 1508.13.

         II. ADMINISTRATIVE RECORD AND PROCEDURAL HISTORY

         A. The § 404 Permit for Black Creek Mine

         In September 2012, Global Met applied for a § 404 permit for a surface coal mine, the Black Creek Mine, in Jefferson County, Alabama.[3] (USACE11; USACE 3907-08).[4] The Locust Fork River is on the western border of the proposed mine and Crooked Creek surrounds the northern border and over half of the eastern border. (USACE69; see also Docs. 55-1 and 55-2).

         In October 2012, the Service notified the Corps that nine listed aquatic species, and one candidate species, may live within or near the proposed Black Creek Mine. (USACE69, USACE3914). The Service also noted that six of the nine species, specifically the mussel species, had designated critical habitat abutting the mine in the Locust Fork. (USACE69).

         Yokley Environmental Consulting Service surveyed the project area in October 2012. Yokley found suitable habitat for mussel and Cahaba shiners, as well as plicate rocksnails, a federally listed species, in the project area. (USACE3943). After reviewing the survey, in December 2012, the Service stated it was “troubled” by the current sediment load in Crooked Creek, (FWS49), and “expressed concern with the habitat quality in Locust Fork” and “recommended strict adherence to best management practices . . . and proposed sediment controls (i.e. sediment ponds, diversion, silt fencing, etc.).” (USACE3914-15; FWS74-75). Additionally, the Service noted the 100-foot setback along both creeks and stated it “appreciate[d] any additional measures that would give additional buffer or sediment protections to these creeks, as any additional impairment will only further degrade an already stressed habitat.” (FWS75). That being said, the Service concluded that if best management practices and sediment controls were implemented and fully adhered to, impacts to the listed aquatic species could be minimized. (Id.). The Service did not require any further endangered species consultation unless there was some sort of change in the project or information related to the listed species. (Id.).

         In June 2013, Global Met submitted the application and mitigation plan for its § 404 permit to the Corp. (USACE3915). The public had an opportunity to comment on the application between late June and late August 2013. (USACE3908, USACE3923). The Service did not submit any comments. At the end of the comment period, the Corps contacted the Service and it responded that it “did not intend to submit comments to the Corps because they did not have any additional comments to add” since those stated in December 2012. (USACE3915).

         The Corps requested and received a § 401 water quality certification from the Alabama Department of Environment Management (“ADEM”) in June 2014. (USACE3908, USACE2005). Six month later, in December 2014, the Corps issued an EA for the permit for the Black Creek Mine. (USACE3905-71, USACE 3920-28). The Corps concluded that the permit would have “no effect” on each of “the species of concern in the project area.” (USACE3919, USACE3956-57).

         B. Suspension of the Permit

          On July 24, 2015, Plaintiffs sent a notice of intent to sue to the Department of the Interior, Fish and Wildlife Service, and the Corps challenging the Black Creek Mine permit and asserting that the Corps failed to comply with the consultation requirements of the ESA in reaching its determination that the project would have no effect on the listed species. (USACE3615-26). After receipt of the notice of intent, the Corps internally reviewed the permit, and on September 25, 2015, concluded the permit should be suspended “to re-evaluate the effects of the project to threatened and endangered species and critical habitat.” (USACE3660-61).

         The instant complaint was filed on October 27, 2015. (Doc. 1). Plaintiffs sought a declaratory judgment that the permit is invalid and an injunction requiring Global Met to suspend activities authorized under the permit, among other relief. (Id.). Three days later, on October 30, 2018, the Corps suspended the permit to conduct additional consultation with the Service. (USACE3615, USACE4076-77). Based upon this suspension and upon joint motion of the parties, the court stayed the complaint pending the completion of the consultation with the Service. (Docs. 10-11, 14, 17, 19, 21, 31).

         C. Re-evaluation of the Permit

         For purposes of the re-evaluation, the Corps identified 13 listed or candidate species that “have the potential to occur in the action area.” (USACE5839-40). Those species included the following:

• 6 mussel species: Alabama moccasinshell (threatened), orangenacre mucket (threatened), ovate clubshell (endangered), upland combshell (endangered), triangular kidneyshell (endangered) and dark pigtoe (endangered)
• 1 snail species: plicate rocksnail (endangered)
•1 salamander species: Black Warrior waterdog (candidate)
• 1 turtle species: flattened musk turtle (threatened)
• 2 fish species: rush darter and Cahaba shiner (endangered)
• 2 bat species: Indiana bat and northern long-eared bat

         As part of the process, and at the request of the Alabama Surface Mining Commission (“ASMC”), Global Met contracted with biologists at CCR Environmental Inc. (“CCR”) to conduct an updated species and habitat survey. (See USACE5911, 5750-83). CCR conducted an aquatic species survey of Crooked Creek and Locust Fork on April 26-28, 2016. (See USACE5750-83). No. listed aquatic species were found and “[s]uitable habitat was lacking from much of the project area.” (USACE5756). That being said, the CCR survey noted a “large shoal in Locust Fork immediately downstream of Crooked Creek [that] had some suitable habitat for the target mollusk and fish species and the [flattened musk turtle] and [Black Warrior waterdog” as well as a “pooled area [with] some marginally suitable habitat for the black-knobbed map turtle and Alabama map turtle.” (Id.). Additionally, CCR conducted a habitat assessment for potential summer and winter habitat for the Indiana bat and northern long-eared bat on January 11-1, 2016, and January 26, 2016. (See USACE5785-835). “No known or observed sites . . . [for] winter hibernating habitat” were found and the “potential summer maternity roosting habitat . . . is only present on 11.7 acres of the project area.”[5] (USACE5811).

         On July 7, 2016, based on these updated surveys, the Corps initiated informal consultation with the Service. (USACE 5839-41). The letter included copies of the updated species and habitat survey reports, the information regarding the bat habitat, and a summary of the effects determination made by the Corps. Specifically, the Corps informed the Service that the following species have the potential to occur in the action area: the Alabama moccasinshell, orangenacre mucket, ovate clubshell, upland combshell, triangular kidneyshell, dark pigtoe, flattened musk turtle, Black Warrior waterdog, plicate rocksnail, rush darter, Cahaba shiner, Indiana bat, and northern long eared bat. (USACE5839-40). It also stated that the Locust Fork adjacent to the project area is designated a critical habitat for the six mussels listed above. (USACE5840). Although none of the listed aquatic species were found in the CCR study, the Corps found “there is designated critical habitat and presence of some suitable habitat for some of the listed species in Locust Fork.” (Id.). As such, the Corps determined the project “may affect” the following species: the Alabama moccasinshell, orangenacre mucket, ovate clubshell, upland combshell, triangular kidneyshell, dark pigtoe, flattened musk turtle, Black Warrior waterdog, plicate rocksnail, and Cahaba shiner. That being said, because of the minimum 100-foot setback, as well as utilization of best management practices to minimize potential adverse impacts to water quality, the Corps determined the project was “not likely to adversely affect” the species listed above and designated critical habitat for the six mussels.” (Id.). Additionally, the Corps determined the project “would have ‘no effect' to the rush darter due to the lack of available habitat in the action area” and “would have ‘no effect' to the Indiana bat and northern long-eared bat because the summer roosting habitat was removed within the recommended tree clearing time frame . . . and there is no winter habitat in the action area.” (USACE5841).

         The Service responded on July 14, 2016, and concurred with the effects determinations made by the Corps. (USACE5843-44). Specifically, the letter stated that as long as best management practices are installed and properly maintained throughout the life of the project to minimize erosion and sedimentation, the Service concurred with the Corps' determination of “may affect, but not likely to adversely affect” the designated species. (Id.). The Service further agreed with the “no effect” determination given the habitat of the rush darter, Indiana bat, and northern long-eared bat, although it was not required to do so. (Id.).

         Approximately two months later, the Corps received a letter from Mark Bailey of Conservation Southeast, Inc., dated September 26, 2016. (USACE5846-49). The letter commented on the survey work performed by CCR regarding the flattened musk turtle and Black Warrior waterdog. Generally, Bailey questioned the expertise of the biologist who conducted the aquatic species survey and asserted CCR significantly deviated from protocol for flattened musk turtle sampling during the survey. (USACE5846-48). A few weeks later, the Corps received a letter from Douglas N. Shelton of the Alabama Malacological Research Center, who also commented on the survey work done by CCR. Shelton specifically criticized the mollusk survey work and questioned the qualifications of the biologist who conducted the survey. (USACE5851-55).

         Additionally, the Corps received a mollusk survey report conducted by Dr. Michael Gangloff dated December 22, 2016.[6] (USACE5856-83). Dr. Gangloff conducted mollusk surveys in the Locust Fork on October 28 and 29, 2016. Four sites in Locust Fork were sampled. Site 1 is approximately 2, 200 feet downstream of the action area and approximately 4, 600 feet downstream of the Crooked Creek confluence with Locust Fork. Site 2a is located on the left descending bank and mid channel immediately downstream of the Crooked Creek confluence and within the action area. Site 2b is located on the right descending bank of Locust Fork just upstream of the Crooked Creek confluence and outside of the action area. Site 3 is located on Locust Fork approximately 6, 900 feet upstream of the Crooked Creek confluence and outside of the action area. Populations of the plicate rocksnail were found at Site 1, Site 2b, and Site 3. Dr. Gangloff also recovered two fresh dead shells of the triangular kidneyshell at Site 1. (USACE5857-83).

         Finally, the Corps received a survey report prepared by Drs. Bernard Kuhajda and David Neely of the Tennessee Aquarium Conservation Institute dated December 28, 2016.[7] (USACE5885-900). Drs. Kuhajda and Neely conducted fish surveys at six sites on the Locust Fork and Crooked Creek on October 13, 2016. (USACE5886). A total of 23 species of fish were collected, 40 of which were Cahaba shiners. (USACE5887). Over half, or 26 of the Cahaba shiners, were found in the riffle upstream of the mouth of Crooked Creek, 11 in the first riffle downstream of the mouth of Crooked Creek, 1 in the second riffle downstream of the mouth of Crooked Creek, and 2 in the third riffle downstream of the mouth of Crooked Creek. (Id.). Among other collected fish species, the survey also noted collection of the coal darter, an imperiled fish species. (Id.).

         On January 31, 2017, after consideration of the documents and surveys submitted, the Service wrote a letter to the Corps addressing each document and made recommendations for further assessments by the Corps. (USACE5902-09). As for Bailey's concerns, the Service disagreed with his assessment that the biologist lacked the expertise to conduct the flattened musk turtle sampling and that he significantly deviated from sampling protocol. (USACE5904-05). That being said, the Service did agree that the trapping duration for the flattened musk turtle was inappropriately shortened from a minimum of three consecutive days and nights to two nights. (USACE5905). The Service also agreed that CCR under surveyed the study area for the flattened musk turtle and that the sampling for the Black Warrior waterdog was not conducted during the most ideal conditions because it is a winter species and sampling was done in the spring. (Id.). However, the Black Warrior waterdog was only a candidate and not threatened or endangered species at the time of the ...


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