Black Warrior Riverkeeper and Defenders of Wildlife are renewing their fight at the U.S. Eleventh Circuit Court of Appeals over U.S. Army Corps of Engineers use of a “grandfather” provision for the permitting of coal mines in Alabama under the Clean Water Act.
Said a Nov. 18 brief filed with the appeals court by the environmental groups: “This case is before this Court a second time, after Appellants achieved partial success on their first appeal. Appellants appeal from the District Court’s decision on remand, which again upheld a decision by the U.S. Army Corps of Engineers to allow coal mining companies to fill over twenty-seven miles of Alabama streams with mining waste under a grandfather provision in a 2012 Clean Water Act general permit. Appellants contend that the Corps arbitrarily treated grandfathered and non-grandfathered permits differently, without any reasoned explanation. This appeal raises issues of first impression under the Clean Water Act, and resolution of those issues is of significant public importance for Alabama’s natural resources.”
Their legal attack is on the Grandfather Provision in the 2012 Nationwide Permit 21 program. In the first appeal, the appeals court affirmed the District Court’s decision that Riverkeeper had standing, reversed the District Court’s decision that Riverkeeper’s action was barred by laches, reversed the District Court’s decision on the merits of Riverkeeper’s claims, and remanded the case with directions to remand NWP 21 to the Corps to reconsider its decision in light of its admitted error in its cumulative impact analysis.
On remand from this appeals court, the District Court remanded the permit to the Corps. The Corps issued a Revised Decision Document reaffirming its decision to issue NWP 21. The District Court then granted the Corps’ and the coal industry’s motions for summary judgment on the merits of Riverkeeper’s claims and issued a final order dismissing Riverkeeper’s action. That is the action now under appeal and subject to the Nov. 18 opening brief.
“Riverkeeper challenges the validity of the Grandfather Provision in the 2012 Nationwide Permit (NWP) 21(a), a Clean Water Act general permit authorizing the filling of streams and wetlands in connection with coal mining activities,” said the Nov. 18 brief. “The Grandfather Provision allows mining companies that had previous five-year authorizations to fill streams under the 2007 NWP 21 to continue the unlimited filling of streams for five more years without obtaining new authorizations under the more restrictive 2012 NWP 21(b).”
The Black Warrior River watershed is located in north-central Alabama. The environmental groups said that Alabama has listed more than a dozen stream segments in the watershed as impaired by past surface mining activities. Since May 2012, the Corps has approved 41 projects authorizing the filling of over 145,000 linear feet (or approximately twenty-seven miles) of stream pursuant to the Grandfather Provision in the Black Warrior River watershed, said the brief.
It added: “These 41 grandfathered approvals under NWP 21(a) allow coal companies to fill streams in lengths that far exceed the 300-foot linear limit in NWP 21(b). If the limits for new authorizations in NWP 21(b) had applied to these approvals, the Corps could have only allowed the 41 projects to fill 300 linear feet of stream at each site, for a cumulative total of 12,300 linear feet (41 x 300). Instead, by issuing grandfathered authorizations under NWP 21(a), the Corps cumulatively allowed 145,000 feet of stream impacts, or an average of 3,452 linear feet per project. One of the 41 approvals allows the filling of 13,280 linear feet of stream impacts at a single site (again, more than the Corps could have authorized cumulatively for all 41 added together had the new limits been applied to Alabama projects).”