United States District Court, N.D. Alabama, Southern Division
E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE
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. Plaintiffs ask the court to vacate and
remand the permit for compliance with these statutes.
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.
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.
The Endangered Species Act
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).
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).
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.
The National Environmental Policy Act
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.
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.
ADMINISTRATIVE RECORD AND PROCEDURAL HISTORY
The § 404 Permit for Black Creek Mine
September 2012, Global Met applied for a § 404 permit
for a surface coal mine, the Black Creek Mine, in Jefferson
County, Alabama. (USACE11; USACE 3907-08). 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
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).
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.).
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).
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.”
Suspension of the Permit
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
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,
Re-evaluation of the Permit
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
• 1 turtle species: flattened musk turtle (threatened)
• 2 fish species: rush darter and Cahaba shiner
• 2 bat species: Indiana bat and northern long-eared bat
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
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
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.).
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).
the Corps received a mollusk survey report conducted by Dr.
Michael Gangloff dated December 22, 2016. (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.
the Corps received a survey report prepared by Drs. Bernard
Kuhajda and David Neely of the Tennessee Aquarium
Conservation Institute dated December 28, 2016. (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.).
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