# Record and brief — Coeur Alaska, Inc. v. Southeast Alaska Conservation Council > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0064%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 2009 - **Citation:** 557 U.S. 261 ## Text MUCAS IUE Vi 70" rave i OF No 07-984 Vide 07-990 Title Coeur Alaska, Inc.. Petitioner . Southeast Alaska Conservation Council, et al Docketed January 29, 2008 Lower Ct United States Court of Appeals for the Ninth Circuit Case Nos. (06-35679) Decision Date: May 22, 2007 Rehearing Denied: October 29, 2007 Questions Presented -~~Date~~~ ~~~~~ ~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~ Jan 28 2008 Petition for a writ of certiorari filed. (Response due February 28, 2008) Feb || 2008 Brief of respondent Goldbelt, Inc. in support filed. VIDED. Feb 21 2008 Letter of February 19, 2008, from counsel for respondent Alaska received. Feb 25 2008 Order extending time to file response to petition to and including March 31, 2008, for all respondents. Feb 28 2008 Brief amici curiae of National Mining Association, et al. filed. Feb 28 2008 Brief amicus curiae of Mountain States Legal Foundation filed. Mar 26 2008 Order further extending time to file response to petition to and including April 30, 2008, for all respondents. Apr 25 2008 Order further extending time to file response to petition to and including May 14, 2008, for all respondents. May 14 2008 Brief of Federal Respondents in opposition filed. VIDED. May 1|4 2008 Brief of respondent Southeast Alaska Conservation Council, et al. in opposition filed VIDED May 27 2008 DISTRIBUTED for Conference of June 12, 2008 May 27 2008 Reply of petitioner Coeur Alaska, Inc. filed. (Distributed) May 28 2008 Letter and attachment dated May 27, 2008, proposing a lodging, received from counsel for the petitioner. (Distributed) Jun 16 2008 DISTRIBUTED for Conference of June 19, 2008. Jun 23 2008 DISTRIBUTED for Conference of June 26, 2008. Jun 27 2008 Petition GRANTED The case is consolidated with No. 07-990, and a total of one hour is allotted for ora! argument Jul 15 2008 The time within which to file the joint appendix and petitioners’ briefs on the merits is extended to and including September 2, 2008. VIDED Jul 15 2008 The time within which to file respondents’ briefs on the merits is extended to and including October 23, 2008. VIDED Aug 13 2008 Consent to the filing of amicus briefs, in support of either party or neither party, received from counsel for the petitioner Alaska. VIDED Aug 13 2008 Consent to the filing of amicus briefs, in support of either party or neither party, received from counsel for the respondent Goldbelt, Inc VIDED Aug 13 2008 Consent to the filing of amicus briefs, in support of either party or neither party, received trom counsel for the respondents Southeast Alaska Conservation, Sierra Club, and Lynn Vocket tor U/-Y34 Aug 14 2008 Aug 14 2008 Aug 19 2008 Sep 17 2008 Sep 17 2008 Sep 17 2008 Sep 17 2008 Sep 17 2008 Sep 24 2008 Sep 24 2008 Sep 24 2008 Sep 24 2008 Sep 24 2008 Sep 24 2008 Oct 7 2008 Nov 4 2008 Nov 7 2008 Nov 14 2008 Nov Nov Nov Nov Nov Nov Nov i4 2008 14 2008 14 2008 14 2008 14 2008 28 2008 28 2008 Dec | 2008 Dec 8 2008 Dec § 2008 Dec 8 2008 Dec 8 2008 Jan 12 2009 Page 2 of 5 Canal Conservation. VIDED The time within which to file the joint appendix and petitioners’ briefs on the merits is further extended to and including September 17, 2008. VIDED The time within which to file respondents’ briefs on the merits is further extended to and including November 7. 2008. VIDED Consent to the filing of amicus briefs, in support of either party or neither party, received from counsel for the petitioner Coeur Alaska. VIDED Brief of petitioner Alaska filed. VIDED. " Brief of respondents United States Army Corps of Engineers, et al. in support of petitioners filed. VIDED Brief of petitioner Coeur Alaska, Inc. filed. VIDED. Brief of respondent Goldbelt, Inc. in support of petitioners filed. VIDED Joint appendix filed (2 volumes). Statement of costs received. VIDED Brief amici curiae of National Mining Association, et al. filed. VIDED. Brief amicus curiae of National Association of Home Builders filed. VIDED Brief amicus curiae of Council of Alaska Producers filed. VIDED Brief amici curiae of Pacific Legal Foundation, et al. filed. VIDED. Brief amicus curiae of Mountain States Legal Foundation filed. VIDED. Brief amicus curiae of Resource Development Council for Alaska, Inc. filed. VIDED SET FOR ARGUMENT ON Monday, January 12, 2009 CIRC LATED. Brief or respondents Southeast Alaska Conservation Council, Sierra Club, and Lynn Canal Conservation filed. VIDED. (Distributed) Brief amici curiae of David M. Chambers, Catherine Coumans, and Carol Ann Woody filed. VIDED. (Distributed). Brief amici curiae of American Rivers, et al. filed. VIDED. (Circulated) Brief amicus curiae of Honorable G. Tracy Mehan, II filed. VIDED (Circulated) Brief amici curiae of Members of Congress filed VIDED. (Circulated) Brief amici curiae of Nondalton Tribal Council, et al. filed VIDED. (Distributed) Motion of the Solicitor General for divided argument VIDED Record received from the U.S.C_A. for the 9th Circuit. (1 box) Record received from the Chambers of Honorable Judge Procter Hug, Jr. (U.S.C_A. for 9th Circuit) for the U.S D.C. for the District of Alaska (1 « lope) Motion for divided argument filed by the Solicitor General GRANTED. VIDED Reply of Federal Respondents supporting petitioners filed. VIDED (Distributed) Reply of petitioner Coeur Alaska, Inc. filed. VIDED. (Distributed) Reply of respondent Goldbelt, Inc. supporting petitioners filed VIDED. (Distributed) Reply of petitioner Alaska filed VIDED. (Distributed) Argued. For federal respondents in support of petitioners: Gregory G_ Garre, Solicitor General, Department of Justice, Washington, D.C. For petitioners: Theodore B_ Olson, Washington, D.C. For respondents’ Thomas S. Waldo. Juneau, Alaska Docket for 07-984 Name-- -~ Address ~ - Attorneys for Petitioner: Jonathan S. Franklin Fulbright & Jaworski L.L.P Counsel of Record 801 Pennsylvania Avenue, N W Washington, DC 20004 jfranklin@fulbright.com Party name: Alaska Theodore B. Olson Gibson Dunn & Crutcher LLP Counsel of Record 1050 Connecticut Avenue, N.W Washington, DC 20036 TOlson@gibsondunn.com Party name: Coeur Alaska, Inc Attorneys for Respondents: David C. Crosby $280 Thane Road Counsel of Record Juneau, AK 99801-7717 Party name: Goldbelt, Inc. Edwin S. Kneedler Acting Solicitor General Counsel of Record United States Department of Justice 950 Pennsylvania Avenue, N.W Washington, DC 20530-0001 Party name: United States Army Corps of Engineers, et al. Thomas S. Waldo Earthjustice Counsel of Record 325 Fourth Street Juneau, AK 99801 twaldo@earthjustice org Party name: Southeast Alaska Conservation Council, et al. Other: James S. Burling Pacific Legal Foundation 3900 Lennane Drive, Suite 200 Sacramento, CA 95834 Party name: Pacific Legal Foundation, et al. Duane J. Desiderio National Association of Home Builders 1201 1Sth Street, NW Washington, DC 20005 Party name. National Association of Home Builders Christopher T. Handman Hogan & Hartson, LLP Pave 3 of 5 Phone (202) 662-0466 (202) 955-8500 (907) 586-6262 (202) 514-2217 (907) 586-275 | (916) 419-7111 (202) 866-8200 (202) 637-5719 Docket for 07-984 Pave 4 of 5 Columbia Square $55 Thirteenth Street, N. W. Washington, DC 20004 Party name: National Mining Association, et al Michael Jungreis Hartig Rhodes Hoge & Lekisch (907)-276-1592 717K Street Anchorage, AK 9950] Party name: Resource Development Council for Alaska, Inc. Paul J. Lawrence K&L Gates LLP (907) 276-1969 420 L Street, Suite 400 Anchorage, AK 99501-1971 Party name: Council of Alaska Producers Jeffrey C. Parsons Western Mining Action Project (303 )-823-5738 440 Main Street, Suite 102 P.O. Box 349 Lyons, CO 80540 WMAP @igce.org Party name: David M. Chambers, Catherine Coumans, and Carol Ann Woody William Perry Pendley Mountain States Legal Foundation (303) 292-2021 2596 South Lewis Way Lakewood, CO 80227 Party name: Mountain States Legal Foundation Ethan G. Shenkman Wilmer Cutler Pickering Hale and Dorr, LLP (202) 663-6000 1875 Pennsylvania Ave., NW | Washington, DC 20006 Party name: Nondalton Tribal Council, et al Deborah A. Sivas Environmental Law School (650)-723-0325 Mills Legal Clinic of Stanford Law School $59 Nathan Abbott Way Stanford, CA 94305-8610 Party name American Rivers, et al David C. Vladeck Georgetown University Law Center (202) 662-9540 600 New Jersey Ave, NW Docket for 07-984 Washington, DC 20001 Party name’ Members of Congress Amy J. Wildermuth University of Utah S.J. Quinney College of Law 332 South 1400 East, Rm. 10! Room 101 Salt Lake City, UT 84112 Party name: Honorable G. Tracy Mehan.I1), et al Pave 5 of 5 (801) 581-6833 PETITION FOR WRIT OF CERTIORARI Supreme : preme Court, U.S 07-984 JAN 2 8 2008 OFFICE OF THE CLERK No. is IN THE iy Supreme Court of the United States COEUR ALASKA, INC., Petitioner, V. SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL., Respondents. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit PETITION FOR A WRIT OF CERTIORARI ROBERT A. MAYNARD THEODORE B. OLSON PERKINS COLE LLP Counsel of Record 251 Kast Front St. Ste. 400 MATTHEW D. MCGILL Boise, 1D 83702 AARON D. LINDSTROM GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Ave., N.W. Washington, DC 20036 (202) 955-8500 Counsel for Petitioner QUESTION PRESENTED The Clean Water Act provides two separate pro- grams for the permitting of discharges into navigable waters of the United States. Under Section 404 of the Act, the Army Corps of Engineers may issue permits for discharges of “fill material,” subject to the water-quality restrictions imposed by Section 404(b)(1). Under Section 402 of the Act, the Envi- ronmental Protection Agency may issue permits for the discharge of all other pollutar’s, subject to the effluent limitations prescribed under Sections 301 and 306 of the Act. In 2002, after notice and comment, the EPA and the Corps jointly promulgated a regulation defining the statutory term “discharge of fill material” to in- clude “tailings or similar mining-related materials.” Pursuant to its authority under Section 404 to grant permits for the discharge of “fill material,” the Corps granted petitioner a permit to deposit certain mine tailings in a lake. In the decision below, the Ninth Circuit invali- dated that permit even though it acknowledged that the proposed discharge “facially meets the current regulatory definition of ‘fill material.” Upsetting 35 years of established agency practice, the court of ap- peals held that the Corps may not issue a Section 404 permit for the discharge of fill material if the fill material in question otherwise would be subject to a Section 301 or 306 effluent limitation. The question presented is whether the Ninth Circuit erred in reallocating the Corps’ and EPA’s permitting authority under the Act. u PARTIES TO THE PROCEEDING In addition to Southeast Alaska Conservation Council, the Sierra Club and Lynn Canal Conserva- tion were appellants in the court of appeals. In addi- tion to Coeur Alaska, Inc., the following parties (or their predecessors in office, see this Court’s Rule 35.3) were appellees in the court of appeals and are respondents in this Court pursuant to this Court’s Rule 12.6: the United States Army Corps of Engi- neers; Kevin J. Wilson, in his official capacity as Dis- trict Engineer; Michael Rabbe, in his official capacity as Chief of the Regulatory Branch; George S. Dunlop, in his official capacity as Principal Deputy Assistant Secretary of the Army (Civil Works); the United States Forest Service; the State of Alaska; and Goldbelt, Inc.1 Pursuant to this Court’s Rule 29.6, undersigned counsel state that Coeur d’Alene Mines Corporation is the parent company of Coeur Alaska, Inc. and that no other publicly held company owns 10% or more of its stock. Coeur d'Alene Mines Corporation has no parent company and no publicly neld company owns 10% or more of its stock. | Kevin J. Wilson replaced Timothy J. Gallagher as District Engineer, Mi-hael Rabbe replaced Larry L. Reeder as Chief of the Regulatory Branch, and George S. Dunlop replaced Dominic Izzo as Principal Deputy Assistant Secretary of the Army (Civil Works). ‘ Il. ITT. ill TABLE OF CONTENTS THE BROAD RAMIFICATIONS OF THE NINTH CIRCUITS DECISION MARK THIS CASE AS ONE OF _ EXCEPTIONAL SIT Soinisnddscspimuastanibnamiapumiiabioiactine ines A. The Ninth Circuit’s Decision Radically Alters The Longstanding Structure Of The Clean Water Act’s Discharge Permit Programs ...... B. The Ninth Circuit’s Decision Will Severely Harm the Nation’s I icine hccsnitiiiaciisiaiiibiginsinnignans C. The Ninth Circuit’s Decision Threatens To Disrupt The Economies Of Alaska And Other , ESR CLEA ae THE NINTH CIRCUIT'S CONSTRUCTION OF THE CLEAN WATER’ ACT CONTRAVENES THE ACTS TEXT AND STRUCTURE, DECISIONS OF THIS COURT, AND DECISIONS OF OTHER COURTS OF EERE Pe ate CI a THE NINTH CIRCUITS REFUSAL To DEFER TO CORPS’ INTERPRETATION OF ITS OWN REGULATION CONFLICTS WITH THIS COURT'S PRECEDENTS ..................e0000. CONCLUSION IPP POP eee eee eee eee eee ee eee eee ee ee eee eee eee eee eee eee re ee ee ee ee ee ee ee ee ee ee — weed iv TABLE OF CONTENTS—Continued APPENDIX A: Opinion of the United States Court of Appeals for the Ninth Circuit ................ APPENDIX B: Order of the United States Court of Appeals for the Ninth Circuit Denying Rehearing En Banc ...................ceseeeeeeeeee APPENDIX C: Opinion of the United States District Court for the District of Alaska............... APPENDIX D: Order of the United States Court of Appeals for the Ninth Circuit Granting Injunction Pending Appeal................... APPENDIX E: Order of the United States Court of Appeals for the Ninth Circuit Denying Motion to Vacate the Injunction I tins haiiindtensiantidmeeimemenbiedenakein APPENDIX F: Order of the United States Court of Appeals for the Ninth Circuit Staying Et ERE ee einer as me Pe Pe ae APPENDIX G: Order of the United States Court of Appeals for the Ninth Circuit Directing Preparation of Reclamation Plan......... APPENDIX H: Relevant Provisions of the I aisubeuillelie Vv TABLE OF AUTHORITIES Page(s) Cases Auer v. Robbins, 519 U.S. 452 (1997) .............2.cceceees 28 Bates v. United States, 522 U.S. 23 (1997)............... 25 Bragg v. W. Va. Coal Ass’n, 248 F.3d 275 (4th Cir. 2O0Z).......cccccccccscccscsssccseees 16 Chevron U.S.A. Inc. v. Echazabal, ES, ee Oe ee RR 2 29 Chevron U.S.A. Inc. v. Natural Res. Def. Council, a I icici iceiseretensnsciesiedsscepsiassiesadecinl tall 31 Friends of Crystal River v. U.S. E.P.A., 35 F.3d 10738 (6th Cir. 1904)........ccccccccccoccscsccceeses 23 Greenfield Mills, Inc. v. Macklin, 361 F.3d 934 (7th Cir. 2004)................ccccccccresseees 22 HCSC-Laundry v. United States, I Na ta a 26 Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003)................ 2, 23, 29, 30 Morales v. Trans World Airlines, Inc., ee a Se ictiininicssdeciscinsencncdenciiiatadtnagasianl 26 Nat'l Ass’n of Home Builders v. Defenders of Wildlife, oe Ss En EE 29 vi TABLE OF AUTHORITIES—Continued Page(s) Nat'l Cable & Telecomms. Ass’n v. Gulf Power Co., I ccatneneiel 26 Officemax, Inc. v. United States, 428 F.3d 66S (Gth Cir. 2006)...........cccccccsccccccsccseee. 22 Purcell v. Gonzalez, 127 S. Ct. 5 (2006).................... 10 Rapanos v. United States, I Rs Is ccensenscressesensacecoeson 21, 22 S.D. Warren Co. v. Me. Bd. of Envtl. Prot., Es Gy, FE CP ccccsccoccscececesccccscccscocceses 21, 25 Slodov v. United States, i cnnoamnuions 22 State of Minn. by Spannaus v. Hoffman, B43 F.Ba DIGS (Oth Cir. 1976).....000...000ccccecsecescees 23 Townsend v. Little, 109 U.S. 504 (1883)................... 26 United States v. Fisk, 70 U.S. 445 (1866)................. 22 United States v. Locke, 471 U.S. 84 (1985)............... 28 Statutes a sniiminiednbdeneaiials 8 Lo isin ddbhladmundenedunenilihe 13 ss saandeceiesonadunbens 3, 4, 21 ST Se eee aR 5 a sdineuideceinisenaiiialanigil 19 sp icciliiebiesanendions passim a canadandicenevsehecedoens passim vil TABLE OF AUTHORITIES—Continued Page(s) EN ERLE MERTEN OMT CN 19 Regulations TE is sicocnsinsidsacnoneciinnisaningiunisdandaiaioasidl passim ET iiccntrnissctinisdinctdabiniundaiimitiiddaniinenel passim ON a 9 easel 14 Other Authorities Proposed Revisions to the Clean Water Act Regulatory Definitions of “Fill Material” and “Discharge of Fill Material,” 65 Fed. Reg. 21,292 (Apr. 20, 2000)............ 3,4, 14 Final Revisions to the Clean Water Act Regulatory Definitions of “Fill Material” and “Discharge of Fill Material,” 67 Fed. Reg. 31,129 (May 9, 2002) ................ 22, 27 Reissuance of Nationwide Permits, 72 Fed. Reg. 11,092 (Mar. 12, 2007).................... 17 U.S. Army Corps of Engineers, Regulatory Program Mission Statement........................-.....-. 29 U.S. Geological Survey, Mineral Commodity is 17, 18 U.S.G.S., 2005 Minerals Yearbook, Statistical Summary (Aug. 2007).....................4:. 19 PETITION FOR A WRIT OF CERTIORARI Petitioner Coeur Alaska, Inc. respectfully sub- mits this petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit. OPINIONS BELOW The court of appeals’ opinion is reported at 486 F.3d 638. App., infra, la. The order denying the pe- tition for rehearing en banc is unreported. Id. 36a. The opinion of the United States District Court for the District of Alaska is also unreported. /d. 38a. JURISDICTION The district court had jurisdiction over respon- dent’s claims pursuant to 28 U.S.C. § 1331. The court of appeals had jurisdiction to review the dis- trict court’s final judgment pursuant to 28 U.S.C. § 1291. The court of appeals filed its opinion on May 22, 2007, and it denied, on October 29, 2007, pe- titioner’s timely filed petition for rehearing en banc. This Court’s jurisdiction rests on 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED The pertinent provisions of the Clean Water Act, 33 U.S.C. §§ 1257-1387, are set forth in the Appen- dix, infra, at 68a. STATEMENT This case presents a question of exceptional im- portance to the administration of the Clean Water Act. Since the Clean Water Act’s enactment in i972, both the Environmental! Protection Agency and the Army Corps of Engineers have consistently recog- nized that the Clean Water Act treats discharges of “fill material” differently from discharges of other 2 pollutants: Discharges of “fill material” are subject to regulation under Section 404 of the Clean Water Act (33 U.S.C. § 1344) and to effluent guidelines promulgated under Section 404(b)(1), while dis- charges of other poilutants are subject to regulation under Section 402 (33 U.S.C. § 1342) and the differ- ent effluent limitations (including standards of per- formance) that Section 402 specifies. Rejecting this well-settled statutory dichotomy and enforcement protocol developed by the specialized agencies re- sponsible for administering the Act, by numerous courts, by state governments, and by the mining in- dustry, the Ninth Circuit imposed a novel and con- flicting requirement. In the Ninth Circuit, dis- charges of “fill material” must now comply with ef- fluent limitations not only under Section 404, but also those specified for “other pollutants” by Section 402. This decision overturns the settled understand- ing of the Act and the enforcement regime developed over the course of 35 years by EPA and the Corps through their joint administration of the Clean Wa- ter Act, disregards the twu-part statutory scheme Congress enacted, significantly impacts the mining industry by prohibiting a common practice often nec- essary for hard rock and other mining (including mining for gold, silver, copper, lead, zinc, phosphate, and molybdenum ores), and jeopardizes the econo- mies (and therefore the people) of States dependent on mining. 1. Prior to the decision below, the Clean Water Act’s bifurcated permitting scheme was well estab- lished. See, e.g., Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 447 (4th Cir. 2003) (explaining how the Act’s structure “reinforc[es] the fill-effluent distinction that has been followed by the agencies”). Section 301 of the Act broadly prohibits 3 the discharge of pollutants into navigable waters of the United States “[e]xcept as in compliance” with permit programs established by the Act. 33 U.S.C. § 1311(a). The Clean Water Act makes clear that the Section 404 and Section 402 permitting schemes are mutually exclusive: It entrusts to the Corps of Engi- neers the authority to issue permits “for the dis- charge of... fill material into the navigable waters,” 33 U.S.C. § 1344, while the authority to issue per- mits for all pollutants other than “fill material” rests with EPA, id. § 1342 (“Except as provided in section|{] ... 1344 ..., the [EPA] Administrator may .. . issue a permit for the discharge of any pollutant ... .”) (emphasis added). Indeed, below, even the appel- lants agreed that “[t]he Act provides that a single discharge will be governed by either section 402 or section 404, but not both.” Appellants’ C.A. Br. 24. This bifurcation makes sense, as the appellants below also acknowledged: “The dual permitting structure of sections 402 and 404 reflects Congress’s view that discharges of ... fill material did not pose the same threats to water quality as discharges of industrial and municipal wastes.” Appellants’ Emergency Mot. under Cir. R. 27-3, at 6. As EPA and the Corps have explained, “[iJn keeping with the fundamental difference in the nature and effect of the discharge that each program was intended by Congress to address, sections 404 and 402 employ different approaches to regulating the discharges to which they apply.” Proposed Revisions to the Clean Water Act Regulatory Definitions of “Fill Material” and “Discharge of Fill Material,” 65 Fed. Reg. 21,292, 21,293 (Apr. 20, 2000). “The section 402 program is focused on ... discharges such as wastewater dis- charges from industrial operations and sewage treatment plants, stormwater and the like.” Jd. “Fill 4 material,” on the other hand, “differs fundamentally from the types of pollutants covered by section 402 because the principal concern is the loss of a portion of the water body itself.” Jd.; see also id. (noting that Section 404(b)(1) guidelines “provide for considera- tion of the effects of chemical contaminants on water quality in a number of ways” but also “go beyond such a water quality based approach to require nu- merous additional considerations” including “effects of the discharge on the aquatic ecosystem as a whole,” such as loss of wetlands); 33 U.S.C. § 1343(c) (setting out criteria, cross-referenced by Section 404(b)(1), that consider, among other things, effects on “economic values” and “mineral exploitation”). Discharges of “fill material” governed by Section 404 must satisfy guidelines (known as Section 404(b)(1) guidelines) jointly developed by EPA and the Corps. Section 404 does not require compliance with effluent limitations promulgated by EPA; in fact, Section 404(p) provides that “[c]lompliance with a permit issued pursuant to [Section 404] .. . shall be deemed compliance ... with [Section 301].” 33 U.S.C. § 1344(p). Section 404(c), moreover, provides an additional protection for water quality by stating that EPA may veto any permit the Corps proposes to grant. In contrast, discharges that fall under Section 402—also known as the National Pollution Discharge Elimination System (“NPDES”) program—must meet “all applicable requirements” under Sections 301 and 306 of the Clean Water Act. 33 U.S.C. § 1342(a). Section 301 requires compliance with “[{e]ffluent limi- tations” applicable to existing point sources, Jd. § 1311(e), while Section 306 applies more stringent effluent limitations, known as “standards of per- 5 formance,” to new point sources, id. § 1316(e). See App., infra, 13a n.8 (“A standard of performance is one type of effluent limitation.”). These effluent limi- tations are promulgated in the form of regulations issued by EPA. Because the term “fill material” is not defined by the Clean Water Act, these agencies, acting on the discretion delegated to them by Congress, issued a joint regulation to delineate which discharges would be regulated under Section 404 of the Clean Water Act and which would fall under Section 402. In their joint regulation, the agencies clearly defined “fill ma- terial” as “material placed in waters of the United States where the material has the effect of ... [c]hanging the bottom elevation of any portion of a water of the United States.” 33 C.F.R. § 323.2(e1\ii); 40 C.F.R. § 232.2. Additionally, the agencies provided that the term “discharge of fill ma- terial” “generally includes ... placement of overbur- den, slurry, or tailings or similar mining-related ma- terials.” 33 C.F.R. § 323.2(f); 40 C.F.R. § 232.2. The discharge at issue in this case is the place- ment of mine tailings, transported in a siurry form, into Lower Slate Lake in southeastern Alaska, where, all agree, the tailings would “raise the bottom elevation of the lake by 50 feet.” App., infra, 3a. 2. Nearly twenty years have passed since peti- tioner Coeur Alaska first proposed revitalizing the historic Kensington gold mine, located about 45 miles north of Juneau, Alaska, and initiated the process of obtaining the requisite permits from the U.S. Forest Service, EPA, the Corps, and other agen- 6 cies. C.A. E.R. 6.1 Over the next 15 years, the Ken- sington project underwent extensive environmental analysis, encompassing several different proposed methods of operations. More than 900 studies, cost- ing over $26 million, examined the project’s envi- ronmental impact; numerous federal and state agen- cies, including the Forest Service, the Corps, EPA, the Alaska Department of Environmental Conserva- tion (“DEC”), the Alaska Department of Natural Re- sources, the National Marine Fisheries Service, and the U.S. Fish and Wildlife Service, reviewed its pro- posals and their expected effects. See, e.g., C.A. E.R. 397. Coeur Alaska’s plan of operations provides for milling ore on-site through a conventional “froth- flotation” process that separates valuable ore from the remaining minerals. Over the 10- to 15-year life of the project, the mill processing operations will yield a great deal of valuable ore, but also several million tons of mine tailings. Only forty percent of the tailings can be stored in the mine. App., infra, 4a. Because depositing the excess tailings on land in this rainy, steep area of Alaska would require de- structive conversion of more than 100 acres of wet- lands to uplands (C.A. J.S.E.R. 401-02) and would raise other environmental, energy, safety, economic, and technical issues, Coeur Alaska sought a permit to dispose of the remainder—up to 4.5 million tons— by placing them into a carefully designed impound- ment in Lower Slate Lake. The Corps carefully con- 1 “C.A. E.R.” refers to the Excerpts of Record filed in the court of appeals. “C.A. J.S.E.R.” refers to the Joint Supplemental Ex- cerpts of Record also filed in the court of appeals. 7 sidered these alternatives in its Record of Decision, id. 555-71, and ultimately concluded that upland disposal would be “more damaging” than deposition in Lower Slate Lake because upland disposal would cause a “permanent loss of wetland|{s]” that would “outweigh[] the temporary losses to the lake.” C.A. J.S.E.R. 872.2 Because Coeur’s largely solid mine tailings con- stitute “fill material” (the tailings indisputably would “[c]Jhang[e] the bottom elevation” of the lake, 33 C.F.R. § 323.2(e)1)(ii)), Coeur sought a discharge permit from the Corps under Section 404. After re- viewing the final proposal and the input of several other agencies (including a Record of Decision by the Forest Service), the Corps approved the proposal in June 2005 and granted Coeur Alaska a Section 404 permit, which incorporated numerous protective re- quirements under Section 404(b)(1) guidelines, to discharge tailings into Lower Slate Lake. C.A. E.R.. 522-33. 2 The tailings discharge is likely to result in the loss of some small fish and other aquatic life in the lake. App., infra, 44a— 45a; see alsu C.A. J.S.E.R. 745, 755, 943-52, 959-62. This loss, however, is expected to result from the physical impact of the tailings, not from toxicity or poor water quality. App., infra, 43a (anticipating that aquatic life would be lost “primarily due to being covered with the discharged materia!”). By the time operations conclude, however, the settled tailings fill will have reduced the lake's depth from 51 feet to approximately 33 feet, and increased its surface area trom 23 acres to more than 60 acres, thereby substantially improving the available fish habi- tat by providing more shallow, productive areas. C.A. E.R. 349. Coeur’s plan of operation calls for it to reintroduce fish into the lake at the close of operations. 8 Originating from the mine ore processing mill, the tailings slurry unavoidably contains some proc- ess water potentially subject to Section 301 effluent limitations and Section 306 performance standards under the Section 402 program. Recognizing, how- ever, the clear fill effect of the tailings discharge into the Lower Slate Lake impoundment, EPA concurred that Section 404 was the applicable permitting re- gime and that Section 301 and Section 306 limits did not apply. After reviewing multiple analyses and working with the Corps to resolve environmental concerns, EPA affirmed the permit by declining to exercise its ultimate veto authority under Section 402(c). EPA also issued a Section 402 permit, incor- porating effluent limitations, to govern the subse- quent discharge of water from the lake impoundment into the small adjacent creek leading to more sub- stantial downstream waters. C.A. E.R. 412-14, 534— 36, 542-43; C.A. J.S.E.R. 656, 662-664. Similarly, the Alaska DEC certified that the proposal would comply with Section 401 of the Clean Water Act and with Alaska’s water-qudlity standards. C.A. J.S.E.R. 827-832. 3. Southeast Alaska Conservation Council, the Sierra Club, and Lynn Canal Conservation (collec- tively “SEACC”) sued the Corps of Engineers and the Forest Service, arguing that the issuance of the per- mit violated the Administrative Procedure Act, 5 U.S.C. § 706(2\Ka), and Sections 301l(a), 301(e), and 306(e) of the Clean Water Act. SEACC relied on an EPA regulation that stated “there shall be no dis- charge of process wastewaler to navigable waters from mills that use the froth-flotativn process ... for the beneficiation of copper, lead, zinc, gold, silver, or molybdenum ores,” 40 C.F.R. § 440.104(b)(1), argu- ing that this “no discharge” performance standard 9 (promulgated under Section 306) precluded the grant of a Section 404 permit. SEACC also challenged, in the alternative, the agencies’ interpretation of their own joint regulation, arguing that it was arbitrary and capricious to inter- pret the term “discharge of fill &.aterial”—a term which the joint regulation provides “includes ... placement of ... tailings or similar mining-related materials,” 33 C.F.R. § 323.2(f); 40 C.F.R. § 232.2—to include mine tailings. C.A. E.R. 15 J 72. SEACC did not challenge the regulation itself or contest the Sec- tion 404 permit’s compliance with the Section 404(b)(1) guidelines. After Coeur Alaska, the State of Alaska, and Goldbelt, Inc. intervened, the district court decided, on summary judgment, that “|t]he Corps properly issued the permit to Coeur Alaska, Inc. under § 404.” App., infra, 55a. The district court recognized that the Clean Water Act “divides the permitting process into two segments” and that different standards ap- plied under Sections 402-and 404, id. 51a; accord- ingly, the district court concluded that “[i]f the per- mit was properly issued under § 404, (Sections 301(e) and 306(e)] are inapplicable,” id. 48a n.35. The dis- trict court also rejected SEACC’s argument that statements in the regulatory history compelled the conclusion that the agencies’ interpretation of their own rule—an interpretation that “facially falls within the definition of ‘fill material’ contained in the regulations,” id. 53a—was unreasonable. 4. SEACC filed an emergency motion for an in- junction pending appeal. A two-judge panel of the Ninth Circuit (Reinhardt, J., and Goodwin, J.) granted the injunction without providing any reason- ing for its order. App., infra, 57a—58a. After Coeur 10 Alaska asked the Ninth Circuit to vacate the injunc- tion pending appeal in light of this Court’s decision in Purcell v. Gonzalez, 127 S. Ct. 5, 6—7 (2006) (va- cating an injunction where “(t]he Court of Appeals offered no explanation or justification for its order” and “fail{ed] to provide any factual findings or indeed any reasoning of its own”), the merits panel denied the motion to vacate, while providing little additional explanation of the grounds for its decision. App., infra, 59a. The Ninth Circuit eventually reversed the judg- ment of the district court and invalidated Coeur’s Section 404 discharge permit. The court of appeals concluded that the Corps, by issuing a permit for a discharge that “facially meets the Corps’ current regulatory definition of ‘fill material,” App., infra, 10a, and “facially qualiflies) for permitting under § 404,” id. 15a, had nevertheless “violated the Clean Water Act,” id. 34a.3 The panel purported to base its conclusion on “the plain language of the Clean Water Act.” App., infra, 10a. The panel reasoned that Section 301(a) “prohibits all discharges of any pollutant ... except when the discharge complies with the requirements of, inter alia, § 301, § 306, § 402, and § 404.” Td. lla—12a. Relying on Section’s 301’s “use of ‘and’ as a connector,” the panel concluded that “§ 301(a) pro- hibits any discharge that does not comply with ... 3 The Ninth Circuit also invalidated a separate Section 404 permit issued to Goldbelt Alaska Native Corporation for rock fill for a dock for the southern marine terminal for the Kensing- ton mine project, solely because the dock was permitted for mine operations. App., infra, 35a. 11 both § 301 and § 306, as well as § 402 and § 404.” Z/d. 15a. Thus, the panel concluded that “[iJf EPA has adopted an effluent limitation or performance stan- dard applicable to a relevant source of pollution, § 301 and § 306 preclude the use of a § 404 permit scheme for that discharge.” Jd. 17a. “[T]he NPDES program administered by EPA under § 402 is the only appropriate permitting mechanism for [such] discharges.” Jd. 18a. The panel also reached the alternative holding that, even though Coeur’s proposed discharge “fa- cially meet[s] the definition of the term ‘fill mate- rial,” App., infra, 22a, the “regulatory history” none- theless demonstrated that the Corps had unreasona- bly interpreted its own regulation as encompassing Coeur’s discharge. Jd. 19a. The regulation’s plain language notwithstanding, the panel concluded that the regulation must be interpreted to include only “those tailings and other mining-related materials that are not subject to effluent limitations or stan- dards of performance.” Id. 30a—3 1a. 5. The court of appeals denied rehearing, App., infra, 37a, but, on Coeur’s motion, stayed its man- date pending review by this Court. Jd. 65a. After granting the stay, however, the court of appeals is- sued an order, on SEACC’s motion, to require Coeur Alaska, the Corps, and the Forest Service to prepare and approve a reclamation plan by April 1, 2008. Jd. 66a. REASONS FOR GRANTING THE PETITION The decision of the Ninth Circuit effectively re- writes the structure of the Clean Water Act: It changes the Section 404 permit program from a dis- tinct permitting scheme that carves out an important exception to Section 402, see 33 U.S.C. § 1342(a\(1) 12 (“Except as provided in section|] ... 1344”), into a secondary permitting scheme that has only residual application. Left undisturbed, the consequences of this deci- sion will be extensive. It has the immediate impact of upsetting national uniformity in the administra- tion of the Clean Water Act by reallocating (in the Ninth Circuit) the division of labor and expertise fol- lowed by EPA and the Corps for the past three dec- ades. It imposes new requirements on mining in this country—much of which occurs under the jurisdic- tion of the Ninth Circuit—by threatening to restrict the industry’s ability to conduct common types of ore processing. And it correspondingly weakens the economies of western States that rely significantly on mining. The decision below also warrants review because it contravenes basic, firmly established principles of statutory interpretation consistently recognized in the decisions of this Court and of the courts of ap- peals. Moreover, by refusing to defer to the Corps’ interpretation (in which EPA concurred) of the joint EPA-Corps regulation defining “fill material”—even as it acknowledged that the agencies’ interpretation was consistent with the joint regulation’s plain text—the Ninth Circuit set itself against a long line of this Court’s decisions concerning the extraordi- nary deference due to an agency's interpretation of its own regulation. This Court should grant the peti- tion to resolve the questions arising out of the Ninth Circuit’s transformative construction of the Clean Water Act and to restore to EPA and the Corps their rightful roles in administering this important federal statute. 13 I. THE BROAD RAMIFICATIONS OF THE NINTH CIRCUIT’S DECISION MARK THIS CASE AS ONE OF EXCEPTIONAL IMPORTANCE The Ninth Circuit’s decision immediately im- pacts the administration of the Clean Water Act. It also has serious, direct economic implications for both the mining industry and western States, such as Alaska, Arizona, California, and Nevada, that produce, as a group, nearly a third of the nation’s nonfuel minerals and that rely significantly on min- ing for their economic well-being. Moreover, should this decisiun stand, environmental groups that dis- agree with how Congress, EPA, and the Corps have exercised their discretion by balancing environ- mental interests with wise use of natural resources are likely to use this decision as a springboard to challenge hard rock and other mining throughout the country. A. The Ninth Circuit’s Decision Radically Alters The Longstanding Structure Of The Clean Water Act’s Discharge Permit Programs For over three decades, EPA and the Corps have specialized in different, important aspects of manag- ing our Nation’s waters. In the Clean Water Act, Congress tasked EPA with protecting water quality by restricting the addition of toxic chemicals into ju- risdictional waters. 33 U.S.C. § 1251(a), (d). Efflu- ent limitations promulgated by EPA typically ad- dress issues such as toxicity by restricting concentra- tions of contaminants and total suspended solids (“TSS”) to small amounts that are measured in milli- grams per liter. See, e.g., 40 C.F.R. § 440.12(a) (lim- iting “(t]he concentration of pollutants discharged in mine drainage from mines operated to obtain iron 14 ore” to a daily average of 1.0 mg/L of iron and of 20.0 mg/L of TSS); id. § 440.24 (for aluminum ore mining, limiting daily averages to 0.5 mg/L of iron, 1.0 mg/L of aluminum, and 20 mg/L of TSS). As EPA and the Corps have explained, however, “[t]here are no statu- tory or regulatory provisions under the section 402 program designed to address discharges that convert waters of the U.S. to dry land.” Proposed Revisions to Regulatory Definitions, 65 Fed. Reg. at 21,292. Discharges of fill material, in contrast, are not measured in milligrams per liter; instead, such dis- charges may exceed a thousand tons of relatively solid material per day. C.A. E.R. 295. The Corps has long experience with special considerations arising from filling jurisdictional waters. Under the Section 404(b)(1) program, the Corps evaluates whether to permit a discharge of fill material into a body of wa- ter through a “careful consideration of the effects of the discharge on the aquatic ecosystem as a whole, as well as evaluation of alternatives to the discharge and measures to minimize and compensate for un- avoidable adverse effects,” and it also considers “ef- fects on human health, recreation, aesthetic, and economic values.” Proposed Revisions to Regulatory Definitions, 65 Fed. Reg. at 21,293. In spite of Congress’s clear intent to create Sec- tion 404 as a separate program to permit discharges of fill material and to address the special considera- tions such discharges present, future requests for permission to discharge fill material will, at least in the Ninth Circuit, have to comply with the require- ments of Section 402 when EPA has promulgated ef- fluent limitations. See App., infra, 15a (rejecting ar gument that “§ 301 and § 306 do not apply to § 404 permits”). The Ninth Circuit's decision significantly 15 narrows the application of the Section 404 pro- gram—previously an important permitting mecha- nism that covered all discharges of fill material—to only that subset of fill material discharges for which EPA has not yet imposed an effluent limitation. No longer, in the Ninth Circuit, does the Section 404 permit program operate as an exception to the Sec- tion 402 program. There, the Section 404 program is allowed only residual application. Left undisturbed, this interpretation will require EPA and the Corps to restructure how they adminis- ter the Act and will narrow the role that Congress set out for the Corps in the Act. For example, the Corps’ ability to efficiently address common fill ac- tivities by issuing a Nationwide Permit (“NWP”) for such activities will be hampered whenever an efflu- ent limitation might apply, as each instance of the activity would then need to be evaluated under the Section 402 program. At the same time, the Corps’ personnel will need to become familiar with all po- tentially relevant effluent limitations in order to en- sure that they do not issue Section 404 permits con- flicting with those numerous now-applicable _re- quirements; correspondingly, EPA personnel will have to increase their oversight under Section 404(c) to ensure compliance. The joint development of Sec- tion 404(b)(1) guidelines to meet specific criteria set out by Congress, see 33 U.S.C. §§ 1344(b)(1), 1343(c), will be largely supplanted by the technology-based criteria of Sections 301 and 306. Topping things off, the agencies will need to decide whether to imple- ment these changes nationwide or to develop a spe- cial process within the Ninth Circuit. 16 B. The Ninth Circuit’s Decision Will Severely Harm the Nation’s Mining Industry The Ninth Circuit’s decision severely restricts the mining industry’s ability to use the Section 404 permit program within the Ninth Circuit. Indeed, requiring discharges of mine tailings to comply with effluent limitations significantly “impair[s] ... envi- ronmentally sound mine operations of all kinds throughout the country.” Nat’l Mining Ass’n C.A. Amicus Br. 2 (hereinafter “NMA C.A. Br.”). Section 404 permits are often necessary because “[mJining activities must occur where the mineral resources are found, and the terrain in those areas is often such that the only feasible site for disposal is in a water body.” NMA C.A. Br. 7. Mining inherently produces excess materials, including rock, dirt, and other tailings. These materials, particularly crushed rock, swell in volume and so cannot all be disposed of by backfilling. See Bragg v. W. Va. Coal Ass’n, 248 F.3d 275, 286 (4th Cir. 2001); C.A. J.S.E.R. 835-36. At the same time, minerals are often located in mountainous regions, such as in Alaska and “in the Appalachian Mountains, in a broad area stretching from Pennsylvania to Alabama|] and including Ken- tucky, Virginial,]) and West Virginia,” where the available “stable locations for the placement of excess rock are mostly the bottom of hollows which, as a simple matter of topology, form streams.” NMA C.A. Br. 8. Applying effluent limitations to mine tailings will affect mumerous types of mines because “EPA has promulgated effluent limitations for a vast num- ber of substances commonly present in the excess rock and dirt from mines.” Nat’l Mining Ass'n C.A. 17 Amicus Br. In Support of Pet. for Reh’g En Banc 17; see generally 40 C.F.R. Pts. 434, 440 (listing effluent limitations for numerous types of mining operations). By eliminating the ability of mines to use a body of water to settle out excess dirt and rock, mining op- erations will have to seek out alternative means of disposal that may, as the Corps found in rejecting such alternatives for the Kensington mine, lead to a greater loss of wetlands, to aesthetic harms (such as the creation of unsightly tailings stacks), and other environmental costs. See, eg., C.A. J.S.E.R. 872. These additional costs inevitably will stifle both re- source exploration and mine development. As Coeur’s situation illustrates, if Section 402 ef- fluent limitations replace Section 404 as the regime governing discharges of mine tailings, mines previ- ously eligible for Section 404 permits will be unable to operate as planned, years of planning and signifi- cant financial investments (here, approximately $200 million, C.A. J.S.E.R. 1064) made in reliance on dec- ades of agency practice notwithstanding. For exam- ple, NWP 44, issued to authorize “aggregate mining and hard rock/mineral mining activities” where the discharge would “not cause the loss of greater than Y-acre of non-tidal waters of the United States,” Re- issuance of Nationwide Permits, 72 Fed. Reg. 11,092, 11,139, 11,189 (Mar. 12, 2007), is now vulnerable to challenge; despite the fact that it “authorizes mining activities that [in the judgment of the agencies] have no more than minimal individual and cumulative adverse effects on the aquatic environment,” id. at 11,140, any “no discharge” effluent limitation would prohibit even these “minimal” discharges. The effects of Ninth Circuit’s decision will be felt throughout the Nation. The mining industry is a 18 significant contributor to the national economy. “The total value of U.S. raw nonfuel mineral production alone was about $64.4 billion.” Mineral Commodity Summaries 2007, at 7. Six metals, five of which are governed by the same froth-flotation performance standard relevant to this case (and the sixth of which is governed by other effluent limits), contribute a combined total of $22.7 billion dollars towards that total. Id. at 52 (copper: $8.6 billion), 70 (gold: $5.1 billion), 116 (molybdenum: $3.2 billion), 82 (iron ore: $2.8 billion), 186 (zinc: $2.3 billion), and 92 (lead: $702 million). Most of those metals are mined in the Ninth Cir- cuit. See U.S. Dep’t of the Interior, U.S. Geological Survey, Mineral Commodity Summaries 2007, at 13, available at http://minerals.usgs.gov/minerals/pubs/ mces/2007/mcs2007.pdf. Gold is produced primarily in Alaska and other western States; Alaska and Ne- vada are the leading producers of silver; Arizona, Nevada, and Montana are three of the top five cop- per-producing States; Idaho, Arizona, Montana, and Nevada are leading producers of molybdenum; Alaska, Idaho, Montana, and Washington are four of the top five lead-producing States; and three of the four states that produce 99% of the Nation’s domestic zine are Alaska, Montana, and Washington. IZd. at 70, 148, 52, 110, 92, & 186. Effluent limitations currently in place apply to each of these types of ores and to numerous types of mining operations, including open-pit operations, underground operations, placer depusits, froth- flotation processes, dump processes, heap processes, in-situ leach processes, vat-leach processes, and gravity separation methods. See generally 40 C.F.R. Part 440, Subparts J & M. Should the Ninth Cir- 19 cuit’s decision stand, discharges of mining-related materials that previously qualified as fill material in the Ninth Circuit must now comply with these regu- lations, including zero-discharge standards of per- formance, formerly applicable only under Section 402. C. The Ninth Circuit’s Decision Threatens To Disrupt The Economies Of Alaska And Other Western States “Mining is a critical part of [Alaska’s] economy,” Alaska’s C.A. Br. Re Reh’g En Banc 15; for example, it contributed $1.8 billion dollars to Alaska’s econ- omy in 2005. C.A. J.S.E.R. 644. As explained above, mining inherently produces excess rock, dirt, and other tailings that swell in volume and so cannot all be disposed of by backfilling. Approximately half of Alaska’s land mass consists of wetlands. Taken to- gether, these facts demonstrate the importance of fill-material permits to the State of Alaska and to the citizens of Alaska who rely on mining for their liveli- hood. If discharges of these excess mining materials into wetlands in Alaska must comply with a zero- discharge Section 306 standard of performance, then other important mining projects in Alaska, including pending and future projects for which “(t]he agencies’ [Section 404] permitting plan is expected to be a critical component,” Alaska’s C.A. Pet. Reh’g En Banc 16, will have to cease or delay operations (or pay penalties, 33 U.S.C. §§ 1319, 1365) until such time as their operations can be brought into compli- ance with the zero-discharge standard of perform- ance—which is to say, never. In many locations placement of tailings on dry land is not practicable, 20 and compliance with the Ninth Circuit’s construction of the Act otherwise is not possible. The decision be- low thus threatens serious harm to the Alaskan economy. Alaska, moreover, is not alone. Other States within the jurisdiction of the Ninth Circuit also rely on mining (and its creation of jobs and income for their residents) as a significant part of their econo- mies. Indeed, the top three States in the Nation in terms of nonfuel mineral production are Arizona ($4.35 billion in 2005), California ($4.25 billion in 2005), and Nevada ($3.88 billion in 2005), and the nine states combine to contribute 31% of total U.S. nonfuel mineral production. U.S. Dep’t of the Inte- rior, U.S. Geological Survey., 2005 Minerals Year- book, Statistical Summary at 2.5-2.6 (Aug. 2007), available at http://minerals.usgs.gov/minerals/pubs/ commodity/statistical_summary/myb1-2005-stati.pdf. Mining in these States often takes place in moun- tainous areas where it is often impracticable to dis- pose of mine tailings except by placing them as fill material in drainage channels, wetlands, or other waters. The Section 404 permit program thus is im- portant in these States just as it is in Alaska. In the absence of a permit program that permits deposition of tailings in jurisdictional waters, these mines, too, will have to develop new plans of operations—plans that promise to be more expensive and that may well be more environmentally damaging (as the Corps found to be the case for the alternatives to issuing a Section 404 permit for the tailings placement at is- sue here). 21 II. THE NINTH CIRCUIT’S CONSTRUCTION OF THE CLEAN WATER ACT CONTRAVENES THE AcT’s TEXT AND STRUCTURE, DECISIONS OF THIS COURT, AND DECISIONS OF OTHER COURTS OF APPEALS In restructuring EPA’s and the Corps’ permitting authority under the Act to invalidate Coeur’s Section 404 permit, the Ninth Circuit ignored well- established rules of interpretation, basic principles of logic, the structure of the Clean Water Act, and even a provision expressly exempting Section 404 permits from effluent limitations. Unsurprisingly, the result achieved cannot be reconciled with this Court’s deci- sions, including Rapanos v. United States, 126 S. Ct. 2208 (2006), and S.D. Warren Co. v. Me. Bd. of Envitl. Prot., 126 S. Ct. 1843 (2006), or with the decisions of other courts of appeals. 1. The Ninth Circuit grounded its novel recon- struction of the Act’s permitting programs—“[i]f EPA has adopted an effluent limitation or performance standard applicable to a relevant source of pollution, § 301 and § 306 preclude the use of .a § 404 permit scheme for that discharge”—on the use, in Section 301(a), of the conjunction “and.” App., infra, 12a, 15a; see 33 U.S.C. §1311(a) (“Except as in compli- ance with this section and sections [302], [306], [307], (318], [402] and [404] of this title, the discharge of any pollutant by any person shall be unlawful.” (em- phasis added)). “The use of ‘and’ as a connector, in- stead of ‘or,” the panel reasoned, meant that “any discharge” had to comply with “both § 301 and § 306, as well as § 402 and § 404,” and “indicates that Con- gress intended for [Section 301) effluent limitations and |Section 306) standards of performance to apply to all applicable discharges, even those that facially qualify for permitting under § 404.” App., infra, lida. 22 But context clearly demonstrates that the conjunc- tion “and” cannot be read to impose the statutory ob- ligations that the Ninth Circuit ascribed to it. As this Court explained long ago, “courts are of- ten compelled to construe ‘or’ as meaning ‘and,’ and again ‘and’ as meaning ‘or.’ United States v. Fisk, 70 U.S. 445, 447 (1866); see also Slodov v. United States, 436 U.S. 238, 246-48 (1978) (interpreting “and” as “or” to avoid result “obviously at odds with the stat- ute’s purpose”). When the word “and” “conjoins a list of mutually exclusive alternatives,” “context requires the term to be construed disjunctively.” Officemax, Inc. v. United States, 428 F.3d 583, 591 (6th Cir. 2005) (Sutton, J.) (emphasis added). This, clearly, is such a case. Section 391 does not, as the panel states, require one to obtain per- mits under both Section 402 and 404 for the same discharge. This Court recently recognized that Sec- tion 402 and Section 404 are mutually exclusive permitting schemes. See Rapanos, 126 S. Ct. at 2228 (plurality opinion) (contrasting “pollutants normally covered by the permitting requirement of [Section 402(a)]” » th “dredged or fill material” and explain- ing that “(t}he Act recognizes this distinction by pro- viding a separate permitting program for such dis- charges in [Section 404(a)]”); id. at 2237 (Kennedy, J., concurring) (“Apart from dredged or fill material, pollutant discharges require a permit from [EPA\, which also oversees the Corps’ ... permitting deci- sions.”) (emphasis added). Numerous courts of ap- peals have similarly acknowledged this mutual ex- clusivity. See, e.g., Greenfield Mills, Inc. v. Macklin, 361 F.3d 934, 946 (7th Cir. 2004) (“[A] defendant who wishes to discharge a pollutant must first obtain a permit either under [Section 404] fo: the discharge of 23 dredged or fill material or under [Section 402] for other pollutants.”) (emphases added).4 Both agen- cies charged with administering the two permitting schemes agree that Section 301 only requires com- pliance with “one of the two permitting programs.” Final Revisions to the Clean Water Act Regulatory Definitions of “Fill Material” and “Discharge of Fill Material,” 67 Fed. Reg. 31,129, 31,130 (May 9, 2002). Even SEACC acknowledged that “(t]he Act provides that a single discharge will be governed by either section 402 or section 404, but not both.” Appellants’ C.A. Br. 24. 2. Nor is it true, as the panel stated, that the use of “and” in Section 301 compels the conclusion that “(Section 301] effluent limitations and [Section 306] standards of performance [| apply to... discharges” that “qualify for permitting under § 404.” The text of the Clean Water Act, in addition to its two-part structure, in fact compels the opposite conclusion. Whereas Section 402(a) explicitly requires that per- mitted discharges comply with both Section 301 ef- fluent limitations and Section 306 performance stan- 4 See also Kentuckians, 317 F.3d at 447 (4th Cir. 2003) (rec- ognizing that “cross-references, exclusions, and vetoes” inter- locking Sections 404 and 402 “reinforcled) the fill-effluent dis- tinction that has been followed by the agencies”); Friends of Crystal River v. U.S. E.P.A., 35 F.3d 1073, 1075 (6th Cir. 1994) (“The Act establishes two discrete permitting systems by which individuals might obtain permits from the appropriate federal agency.”); State of Minn. by Spannaus v. Hoffman, 542 F.2d 1198, 1208 (8th Cir. 1976) (“Unlike all other pollutants, dredged spoil [and fill material) [are] not regulated under the NPDES, since [§] 402(a)1) establishing the NPDES begins, as we have seen, with the words, ‘(e)xcept as provided in sections 318 and 404.’”) (citation and footnote omitted). 24 dards, Section 404 does not, instead expressly requir- ing compliance with different water-quality stan- dards (and additional requirements) developed under Section 404(b)(1). Compare 33 U.S.C. § 1342(a), with id. § 1344. The panel dismissed this fact—that “$ 402 explicitly requires compliance with [Sections 301 and 306] whereas § 404 does not”—as a mere “negative inference” of an “implied exception.” App., infra, 15a. But the exception is hardly inferential: Section 404(p), apparently overlooked by the panel, explicitly provides that “|clompliance with a permit issued pursuant to this section ... shall be deemed compli- ance ... with [Section 301].” 33 U.S.C. § 1344(p). Compare id., with App., infra, 18a (“§ 404 does not contain an explicit exception to effluent limita- tions”).> But even setting aside Section 404(p)’s af- firmative, express exception for effluent limitations, this Court recently reiterated, in another Clean Wa- ter Act case, that “if ‘Congress includes particular language in one section of a statute”—as Congress did in Section 402, stating that Sections 301 and 306 apply under that section—“but omits [that language] in another section of the same Act””—as Congress did in Section 404—“‘it is generally presumed that Con- ° SEACC has suggested that Section 404(p) does not apply here because it refers only to Section 301, and not to Section 306. Given, however, that “[a] standard of performance is one type of effluent limitation” and that all effluent limitations “have the same practical effect” of restricting the discharge of pollutants, App., infra, 13a n.8, it would be quite strange if compliance with Section 404 did not also similarly constitute compliance with the particular type of effluent limitation (ie., performance standards) mandated by Section 306. 25 gress acts intentionally and purposefully in the dis- parate inclusion or exclusion.” S.D. Warren Co., 126 S. Ct. at 1852 (quoting Bates v. United States, 522 U.S. 23, 29-30 (1997)). Congress clearly expressed its intent to impose different requirements under the different programs—compliance under Section 402 with effluent limitations, including performance standards, and compliance under Section 404 with Section 404(b)(1) guidelines—and even expressly ex- empted discharges of fill material from compliance with effluent limitations. Yet the Ninth Circuit con- cluded that Congress intended that Section 404 per- mits comply with effluent limitations. 3. Attempting to bolster its conclusion that Sec- tion 306(e) applies under Section 404, the Ninth Cir- cuit also relies on the fact that Congress phrased Sections 301(e) and 306(e) broadly to establish (in the panel’s words) “blanket prohibitions” that apply to “all” and “any” discharges. App., infra, 15a—16a. This conclusion, however, is at odds with a number of more specific requirements set out in the Act: first, the requirement that permits issued under Sec- tion 404 comply with Section 404(b)(1) guidelines, 33 U.S.C. § 1344(b)(1); second, Section 404’s exemption from compliance with Section 301, id. § 1344(p); and third, Congress’s conspicuous failure to specify that Sections 301 and 306 apply under Section 404, cf. § 1342(a). In the face of these more specific provisions, the Ninth Circuit’s reliance on Section 301’s and Section 306’s more general language violates the well-settled canon of statutory interpretation that “specific statu- tory language should control more general language when there is a conflict between the two.” Nat'l Ca- ble & Telecomms. Ass’n v. Gulf Power Co., 534 U.S. 26 327, 335 (2002); see also Morales v. Trans World Air- lines, Inc., 504 U.S. 374, 384 (1992) (“it is a common- place of statutory construction that the specific gov- erns the general”). This is particularly disturbing in light of the Ninth Circuit’s acknowledgement of this canon, see App., infra, 32a, and its recognition of Sec- tion 404 as “a limited permit program that applies only to dredged or fill material,” id. 15a. Thus, to the extent that the general prohibitions on discharges in Sections 301 and 306 appear to conflict with Section 404’s specific exception permitting discharges of fill material as long as they comply with Section 404(b)(1) guidelines, Section 404 ought to control. See HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981) (“[I]t is a basic principle of statutory construc- tion that a specific statute . . . controls over a general provision ..., particularly when the two are interre- lated and closely positioned, both in fact parts of” the same statutory scheme.); Townsend v. Little, 109 U.S. 504, 512 (1883) (explaining the “well-settled rule” that “general and specific provisions, in appar- ent contradiction ..., may subsist together, the spe- cific qualifying and supplying exceptions to the gen- eral”). 4. The Ninth Circuit's flawed construction of the Clean Water Act is @ rect result of its cart-before- the-horse approach to statutory interpretation: The Ninth Circuit started with the proposition that the two regulations potentially implicated by the dis- charge—that is, the froth-flotation effluent limitation and the regulation defining “fill material”—conflicted intractably, and then interpreted the Act in light of those regulations. See, e.g., App., infra, 9a-10a (“Two different regulations contain plain language interpreting the Clean Water Act that would appear to govern ..., but they result in different interpreta- 27 tions of the Act.”). Under this approach, the exis- tence of an EPA regulation setting out effluent limi- tations on rock, sand, and dirt (quintessential exam- ples of fill material) could nullify a statutory provi- sion (Section 404) and could negate Congress’s clear intent to create a Corps-administered program for permitting discharges of fill material. As the Clean Water Act itself makes clear, however, one must first determine which permitting scheme applies before one can know whether effluent limitations would ap- ply to the discharge. And, according to the two agen- cies charged with administering the Act, the line of demarcation between the two permit programs is the definition of “fill material,” which is supplied by a joint EPA-Corps regulation not challenged in this litigation. Ill. THE NINTH CIRCUIT’S REFUSAL TO DEFER To CORPS’ INTERPRETATION OF ITS OWN REGULATION CONFLICTS WITH THIS COURT’S PRrCEDENTS As an alternative holding, the Ninth Circuit pos- ited that the Corps (and EPA) unreasonably :nter- preted the joint EPA-Corps fill rule—which provides that a “discharge of fill material” “includes placement of... slurry, or tailings or similar mining- related materials.” 33 C.F.R. § 323.2(f/—to include Coeur’s proposed mine tailings. See App., infra, 19a— 3la. The Ninth Circuit refused to defer to the Corps’ interpretation of its regulation defining fill material, concluding that statements in the “regulatory his- tory’—not the regulation itself—were “dispositive and compel the conclusion that the Corps over- stepped its authority in issuing a permit to Coeur Alaska under § 404.” Id. 3la. But see Final Revi- sions to Regulatory Definitions, 67 Fed. Reg. at 31,135 (“mining-related material that has the effect. 28 of fill when discharged will be regulated as ‘fill mate- rial”); see also id. (“EPA has never sought to regulate fill material under effluent guidelines”). The Ninth Circuit’s approach cannot be reconciled with this Court’s decisions. 1. It is axiomatic that a court must defer to an agency’s construction of its own regulation unless that interpretation is “plainly erroneous or inconsis- tent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997). The joint EPA-Corps regulation de- fining “discharge of fill material” explicitly states that the term “includes, without limitation, placement of overburden, slurry, or tailings or simi- lar mining-related materials.” 33 C.F.R. § 323.2(f); 40 C.F.R. § 232.2. It is, of course, difficult to envision how an agency's interpretation can “facially meet)” a regula- tion, App., infra, 10a, yet nevertheless be “inconsis- tent with the regulation.” Auer, 519 U.S. at 461. The Ninth Circuit’s position seems to be that, even where agency’s interpretation is consistent with the text of its regulation, that interpretation may never- theless be rejected as unreasonable if an examina- tion of regulatory history demonstrates that the text does not accurately reflect the agency’s regulatory intent. See App., infra, 19a-20a. That is clearly wrong. In United States v. Locke, 471 U.S. 84 (1985), this Court explained that where statutory language “is plain and the agency’s construction completely consistent with that language, the agency’s construc- tion simply cannot be found ‘sufficiently unreason- able’ as to be unacceptable.” Jd. at 96. If courts may not find an agency's interpretation of a statute un- reasonable when the interpretation is consistent with the statute’s text, it is even more apparent that 29 they may not, under an even more deferential test, find an agency’s interpretation of its own regulation unreasonable when that interpretation is completely consistent with the regulation’s plain text. The court of appeals’ refusal to defer to the agen- cies’ interpretation of their own joint regulation wrested from the agencies the authority Congress delegated to them to determine where to draw the line separating discharges of fill material from dis- charges of ali other pollutants. This contravenes this Court’s guidance that Congress expects agencies to make “substantive choices” when it “leaves the inter- section of competing objectives ... imprecisely marked.” Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 85 (2002); see also Nat'l Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2534 (2007) (agency interpretations that resolve “fundamental ambiguit[ies]” resulting from “differing mandates” in statutory texts by developing a “reasonable interpre- tation’ of the statutory scheme” are “entitled to def- erence”). As the Fourth Circuit has explained, Sections 402 and 404 “might overlap on certain types of ‘fill material’ that adversely affect the quality of water,” but any such overlap can be resolved by regulations defining “fill material.” Kentuckians, 317 F.3d at 447-48. In other words, the Fourth Circuit recog- nized that a regulation defining “fill material” does. not conflict with a regulation establishing an effluent limitation, as the Ninth Circuit would have it. Quite the opposite, it resolves any “overlap” between Sec- tions 404 and 402 by determining the appropriate permitting regime for a particular discharge. Thus, the plain language in the 2002 regulation—which defined “discharge of fill material” to include “slurry, 30 or tailings or similar mining-related materials,” 40 C.F.R. § 232.2—is entirely consistent with the agen- cies’ settled understanding that tailings, including tailings left over after time-honored practices such as the froth-flotation process regulated under an efflu- ent limitation since 1982, are governed by Section 404, not Section 402. There is no reason to think the Ninth Circuit is better equipped than Congress, EPA, or the Corps— let alone all three—to decide how to balance inter- ests in protecting the environment against interests in “reasonable development,” “infrastructure devel- opment,” and “growth of the economy.” U.S. Army Corps of Eng’rs, Regulatory Program Mission State- ment, http://www.usace.army.mil/cw/cecwo/reg/ mis- sion. htm (last visited Jan. 7, 2008). 2. As the Ninth Circuit acknowledged, SEACC did not challenge the validity of the joint EPA-Corps regulation defining “fill material.” App., infra, 25a— 26a n.12. Accordingly, the court of appeals stated that it did “not reach the issue of the validity of these regulations.” Jd. In addition to this disclaimer, the Ninth Circuit affirmatively recognized that “(t]he Clean Water Act does not define the term ‘fill mate- rial” and that, instead, “Congress implicitly left that term to the Corps and EPA to define.” Jd. 22a; see also Kentuckians, 317 F.3d at 444 (“[W]e conclude that Congress has not clearly spoken on the meaning of ‘fill material{.]”). This admission demonstrates that the Ninth Circuit had no authority under Chev- ron step one to invalidate the regulation. Under step one of Chevron, a court may strike down an agency interpretation of a statute only when “Congress has spoken directly to the precise question at issue” and the agency interpretation deties “the unambiguously 31 expressed intent of Congress.” App., infra, lla (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)). Under these circumstances (where SEACC had not raised the issue and where the Ninth Circuit ac- knowledged that Congress did not unambiguously express its intent, but rather “left that term to the Corps and EPA to define,” App., infra, 22a), the Ninth Circuit, by its own admission, had no author- ity to invalidate the agencies’ reasonable joint inter- pretation of ambiguous statutory language. Thus, the decision’s references to the Act’s “plain” and “un- ambiguous” language, see App., infra, 10a, 15a, 19a, 35a. can only be understood either as relating to statutory language other than “discharge of fill ma- terial” or as a backdoor attempt to challenge the va- lidity of the joint regulation itself—a regulation SEACC has not challenged and would have had no basis to challenge under Chevron. CONCLUSION Further percolation in the courts of appeals is unnecessary—the issue raised by this petition is al- ready crystallized. Moreover, additional decisions by other courts of appeals are unlikely to lead the Ninth Circuit to change its view, given that it has already denied rehearing en banc. In light of the exceptional national importance of this case and for all of the foregoing reasons, the petition for a writ of certiorari should be granted. 32 Respectfully submitted. ROBERT A. MAYNARD THEODORE B. OLSON PERKINS COIE LLP Counsel of Record 251 East Front St. Ste. 400 MATTHEW D. MCGILL Boise, ID 83702 AARON D. LINDSTROM GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Ave., N.W. Washington, DC 20036 (202) 955-8500 Counsel for Petitioner January 28, 2008 APPENDIX la APPENDIX A UNITED STATES COURT OF APPEALS, NINTH CIRCUIT. No. 06-35679. SOU'THEAST ALASKA CONSERVATION COUNCIL; Sierra Club; Lynn Canal Conservation, Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS; Timothy J. Gallagher, Colonel, in his official capacity as District Engineer; Larry L. Reeder, in his official capacity as Chief of the Regulatory Branch; Dominic 1zzo, in is official capacity as Principal Deputy Assis- tant Secretary of the Army (Civil Works); United States Forest Service, Defendants-Appellees, Coeur Alaska, Inc.; Goldbelt, Inc.; State of Alaska, Defendants-Intervenors-Appellees. Argued and Submitted Dec. 4, 2006. Filed May 22, 2007. 2a * * * + Thomas S. Waldo and Demian A. Schane, Earthjus- tice, Juneau, AK, for plaintiffs-appellants. John T. Stahr and Mark A. Nitcezynski, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for defendants-appellees. David J. Burman and Robert A. Maynard, Perkins Coie LLP, Boise, Idaho; John C. Berghoff, Jr., and Michael P. Rissman, Mayer Brown Rowe & Maw LLP, Chicago, IL; Cameron M. Leonard, State of Alaska, Department of Law, Fairbanks, AK; and David C. Crosby, David C. Crosby PC, Juneau, AK, for defendants-intervenors-appellees. Melissa Powers and Allison LaPlante, Pacific Envi- ronmental Advocacy Center, Portland, OR; Joseph M. Lovett, Appalachian Center for the Economy & the Environment, Lewisburg, WV; and Peter Van Tuyn, Bessenyey & Van Tuyn, Anchorage, AK, for amici curiae in support of plaintiffs-appellants. John W. Hartle, City and Borough of Juneau, Jun- eau, AK; Amy Gurton Mead, Robertson, Monagle & Eastaugh, Juneau, Alaska; Steven J. Lechner, Moun- tain States Legal Foundation, Lakewood, CO; Michael R. Shebelskie, Hunton & Williams LLP, Richmond, Virginia; Harold P. Quinn, Jr., National Mining Association, Washington, D.C.; and Stephen F. Sorensen, Simpson, Tillinghast & Sorensen PC, Juneau, AK, for amici curiae in support of defen- dants-appellees. Appeal from the United States District Court for the District of Alaska; James K. Singleton, Senior Dis- trict Judge, Presiding. D.C. No. CV-05-00012-J-JKS. Before PROCTER HUG, JR, A. WALLACE TASHIMA, and SUSAN P. GRABER, Circuit Judges. 3a HUG, Circuit Judge. This case presents the question of whether the issu- ance of a permit by the U.S. Army Corps of Engineers violates the Clean Water Act.! The permit issued in this case authorizes Coeur Alaska, Inc., to discharge process wastewater containing tailings from its gold mine into a lake that is a navigable wa- ter of the United States. Coeur Alaska proposes to discharge daily 210,000 gallons of process wastewa- ter containing 1,440 tons of tailings from its mine into Lower Slate Lake. The tailings in the discharge will raise the bottom elevation of the lake by 50 feet. A 90-foot high, 500-foot long dam will be built to con- tain the discharge and the area of the lake will be increased about three-fold. The U.S. Army Corps of Engineers contends that the permit was properly granted under § 404 of the Clean Water Act, which relates to the disposal of “fill material,” and that it is not subject to the effluent restrictions of § 301 or § 306 of the Clean Water Act. The plaintiffs contend that this mine disposal discharge must comply with the effluent restrictions of § 301 and § 306, and that any permit allowing discharge must be issued by the Environmental Protection Agency. The district court held that the issuance of the permit was proper. We reverse and remand with instructions to vacate the permit.2 1 33 U.S.C. §§ 1251-1387. 2 We also vacate the permit granted to Goldbelt, Inc., to construct the Cascade Point Marine Facility in Berners Bay and the U.S. Forest Service’s Record of Decision ap- proving the general plan because they are dependent on [Footnote continued on next page} 4a I. Coeur Alaska intends to open the Kensington Gold Mine on the site of a prior mine in southeast Alaska that operated from 1897 to 1928. Although the min- ing operation will include several above-ground facilities, the mine itself will be entirely subterra- nean. To process the gold ore retrieved from the mine, Coeur Alaska will construct a froth-flotation mill fa- cility. In the froth-flotation process, ore-bearing rock from the mine will be transported to a mill and moved through a series of mechanical crushing and grinding procedures. After the rock is finely ground, it will be fed into a tank where water and chemicals referred to as conditioners, frothers, surfactants, and scale inhibitors will be added. Air is then pumped into the tank, producing bubbles that attach to the gold deposits. The bubbles rise, bringing the gold with them and forming a froth that is skimmed off the top. After the gold has bubbled up to the surface and the froth is removed, the tailings-residual ground rock- remain as a waste product. Of the 2,000 tons of ore that the Kensington mine will process each day, only about 100 tons (5 percent) contain economicaily vi- able gold minerals. About 40 percent of the tailinys will be used as backfill in the mine. %'he remaining volume is, according to Coeur Alaska, too large to transport off site and presents a waste disposal prob- [Footnote continued from previous page] the validity of the permit issued by the U.S. Army Corps of Engineers to Coeur Alaska. 5a lem. This dispute arises from Coeur Alaska’s current plan for addressing that disposal problem. Coeur Alaska’s earlier plan of operations for the Kensington Gold Mine called for the construction of a “dry tailings facility,” in which the mine would dis- pose of waste from its froth-flotation mill on dry “uplands.” This disposal process involved the con- struction of berm and drainage structures around the designated disposal area, dewatering the process wastewater, and placement of the tailings within an enclosure. After the closure of the mine in about 10 to 15 years, Coeur Alaska would have been required to cover the disposal area with native material to support revegetation. The U.S. Forest Service (“For- est Service”) approved the plan of operations for the dry tailings facility, and the U.S. Army Corps of En- gineers (“Corps”) and the Environmental Protection Agency (“EPA”) issued permits to the company au- thorizing the construction of this facility in 1997. The price of gold subsequently dropped to $400 an ounce, however, prompting Coeur Alaska to investigate less expensive ways to develop the mine project.3 In 2004, Coeur Alaska proposed a new plan of operations with significant amendments. The most important change for our purposes was that, instead of the dry tailings facility, Coeur Alaska proposed to discharge its proc- ess wastewater containing the tailings directly into nearby Lower Slate Lake. 3 The price of gold has since been rising steadily and is currently over $680 an ounce, thus the original motiva- tion for the change in waste disposal from the mine no longer exists. 6a Lower Slate Lake, a 23-acre subalpine lake in the Tongass National Forest, is one of several small lakes in the vicinity of the mine. The lake is a fish and wildlife habitat and supports about 1,000 Dolly Varden Char (a freshwater fish) and other native fish and aquatic life. The lake is also a tributary of Slate Creek and drains into Berners Bay. Coeur Alaska’s current disposal plan involves piping approximately 210,000 gallons of process wastewa- ter, including 1,440 tons of tailings, each day to the bottom of Lower Slate Lake in the form of a slurry. This slurry would consist of about 45 percent water and 55 percent tailings. A polymer and flocculent would be added to the slurry to enhance settling of the tailings. Over the 10- to 15-year life of the mine, approximately 4.5 million tons of tailings would be deposited into the lake. The discharge ultimately would raise the bottom of the lake 50 feet, to its cur- rent high water mark, and nearly triple its surface area. Coeur Alaska and the Corps admit that the discharge and settling of the tailings into the lake would kill all the fish and nearly all the aquatic life. The effluent would have a pH factor of over 10, which is considerably higher than the lake’s current pH factor, and would contain concentrations of sev- eral potentially hazardous materials, including aluminum, copper, lead, and mercury. The toxicity of the discharge may have lasting effects on the lake and may negatively affect its ability to sustain aquatic life in the future. The Corps intends that aquatic life would be reintroduced into the lake, but the extent to which aquatic life could be restored eventually is unclear. To prepare the lake for use as a wastewater disposal facility and the consequent expansion of the lake’s Ja surface, Coeur Alaska would construct a 90-foot high, 500-foot long dam at the lake’s outfall point. Coeur Alaska’s long-term plan to use the lake as a disposal facility also includes the construction of a diversion ditch. Constructing the ditch would require cutting trees on 7.6 acres of forested land, building a 30-foot wide road, excavating and digging a 3,000-foot ditch, and filling in 4.3 acres of nearby wetlands with 28,800 cubic yards of fill material. In addition, dur- ing the 10- to 15-year period of the lake’s use as a disposal facility, Slate Creek would be diverted around the lake through a pipeline. The Forest Service approved Coeur Alaska’s current plan of operations at the Kensington Gold Mine, in- cluding the revised disposal plan, in a Record of Decision (“ROD”) on December 9, 2004. Because the proposed discharge would have the effect of raising the bottom elevation of Lower Slate Lake, the Corps reasoned that the permit program under § 404 of the Clean Water Act, rather than § 402, applies to Coeur Alaska’s planned discharges. Accordingly, the Corps issued a permit for the discharge into Lower Slate Lake on June 17, 2005. Under the permit, when operations at the mine even- tually cease, the Corps would require Coeur Alaska to mitigate the environmental impacts at the lake by installing a cap of native material over the tailings at the bottom of the lake. The Corps would also require Coeur Alaska to reintroduce native fish species into the lake and monitor the health of the ecosystem. If. Southeast Alaska Conservation Council, the Sierra Club, and Lynn Canal Conservation (collectively “SEACC”) filed this lawsuit challenging the Corps’ permit and the Forest Service’s ROD approving the 8a general plan on the grounds that they violate § 301(a), § 301(e), and § 306(e) of the Clean Water Act. The crux of SEACC’s argument is that the Corps violated the Clean Water Act by issuing a permit for the discharge of process wastewater from a froth- flotation mill into a body of water protected by the Clean Water Act. After the complaint was filed, the Corps decided to suspend the permit and reconsidered its decision to issue the permit. For that purpose, the Corps moved for voluntary remand of the case before briefing on the merits began, which the district court granted on November 14, 2005. The Corps reinstated the origi- nal permit, without changes, on March 29, 2006. At the same time, the Corps issued a revised ROD in which it explained its rationale. SEACC then filed an amended complaint, in which it reiterated its allega- tions and reasserted its causes of action. Coeur Alaska, Goldbelt, Inc., and the State of Alaska inter- vened as defendants. The parties filed cross-motions for summary judgment. The district court granted summary judgment to the defendants on August 4, 2006. In its opinion, the dis- trict court focused on whether the Corps misapplied § 404 of the Clean Water Act. The district court noted that SEACC challenged the granting of the permit on the grounds that it did not comply with § 301(e) and § 306(e). It held that if the permit was issued under § 404 for the disposal of “fill material,” then § 301(e) and § 306(e) were inapplicable. SEACC appealed on August 7, 2006, three days after the district court’s decision, and this court, on SEACC’s motion, granted an injunction pending ap- peal on August 24, 2006, which prohibited Coeur Alaska, the Corps, and the Forest Service from pro- 9a ceeding with further construction activities related to preparing the lake for use as a waste disposal site. See SEACC v. U.S. Army Corps of Eng’rs, 472 F.3d 1097, 1099 (9th Cir. 2006). Since granting the injunc- tion, we have addressed two emergency motions related to stabilizing a temporary coffer dam that was hastily constructed by Coeur Alaska prior to the injunction. Id.; SEACC v. U.S. Army Corps of Eng’rs, 479 F.3d 1148, 1151—52 (9th Cir. 2007). III. We review the district court’s grant of summary judgment de novo and must determine whether the district court correctly applied the relevant substan- tive law. Turtle Island Restoration Network v. Nat'l Marine Fisheries Serv., 340 F.3d 969, 973 (9th Cir. 2003); United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir. 2003). “De novo review of a district court judgment concerning a decision of an adminis- trative agency means the court views the case from the same position as the district court.” Turtle Is- land, 340 F.3d at 973 (citing Nev. Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993)). Judicial review of administrative decisions under the Clean Water Act is governed by § 706 of the Admin- istrative Procedure Act (“APA”). Natl Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir. 2004). Under the APA, a court may set aside an agency action if the court determines that the action was “arbitrary, capricious, an abuse of dis- cretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2\(A); Turtle Island, 340 F.3d at 973. IV. Two different regulations contain plain language in- terpreting the Clean Water Act that would appear to govern Coeur Alaska’s proposed plan of operations at 10a the Kensington Gold Mine, but they result in differ- ent interpretations of the Act. The discharge of wastewater containing tailings from Coeur Alaska’s froth-flotation mill operation facially meets the Corps’ current regulatory definition of “fill material” because it would have the effect of raising the bottom elevation of the lake. See 33 C.F.R. § 323.2(e). Ac- cordingly, under this interpretation, the discharge would be subject to the permit process governed by § 404 of the Clean Water Act. However, EPA previ- ously promulgated a _ performance _ standard, pursuant to § 301 and § 306 of the Clean Water Act, that prohibits discharges from froth-flotation mills into waters of the United States. See 40 C.F.R. § 440.104(b)(1). Both of the reguiations appear to apply in this case, yet they are at odds. As explained below, the plain language of the Clean Water Act resolves this con- flict and requires that the performance standard controls. The statute is unambiguous on this point, and the performance standard applies to discharges from the froth-flotation mill at Coeur Alaska’s Ken- sington Gold Mine into Lower Slate Lake. Furthermore, the federal agencies’ clear statements at the time they adopted the current regulatory defi- nition of the term “fill material” demonstrate that they did not intend for waste products subject to ef- fluent limitations and performance standards to be regulated as “fill material.” For these reasons the Corps should not have issued a permit to Coeur Alaska under § 404. The district court’s grant of summary judgment in favor of the Corps is reversed, and we remand for summary judgment to be entered in favor of the plaintiffs with directions to vacate the permit granted by the Corps. lla A. We begin, as we must, with the text of the Clean Wa- ter Act itself to determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 81 L.Ed.2d 694 (1984). “If a court, employing tradi- tional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given ef- fect.” Id. at 843 n.9, 104 S. Ct. 2778. 1. Congress passed the Clean Water Act in 1972 “to re- store and maintain the chemical, physical, and biological integrity” of the waters of the United States. 33 U.S.C. § 1251(a). To achieve this objective, the Clean Water Act sought to eliminate completely the discharge of all pollutants into the nation’s navi- gable waters by 1985. 33 U.S.C. § 1251(a)(1). It also sought to make those waters suitable for fish, shell- fish, wildlife, and recreation. 33 U.S.C. § 1251(a)(2). One of Congress’s principal concerns in passing the Clean Water Act was the use of water for waste dis- posal, which Congress deemed “unacceptable.” See S. Rep. No. 92-414, at 7 (1971), reprinted in 1971 U.S.C.C.A.N. 3668, 3674 (“The use of any river, lake, stream or ocean as a waste treatment system is un- acceptable.”), quoted in Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1043 (9th Cir. 1978). The “cornerstone” and “fundamental premise” of the Clean Water Act is § 301, which prohibits all dis- charges of any pollutant except in compliance with 12a specified provisions of the statute. Ass’n to Protect Hammersley, Eld, & Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007, 1009 (9th Cir. 2002); Natural Res. Def. Council, Inc. v. EPA, 822 F.2d 104, 109 (D.C. Cir. 1987). Specifically, § 301(a) provides that “the discharge of any pollutant by any person shall be unlawful” except when the discharge complies with the requirements of, inter alia, § 301, § 306, § 402, and § 404.4 33 U.S.C. § 1311(a). In furtherance of this mandate, § 301(b) requires EPA to adopt in- creasingly stringent, technology-based _ effluent limitations® for point sources.§ Once an effluent limi- tation is promulgated, § 301(e) requires that it “shall be applied to ad/ point sources of discharge of pollut- 4 The full text of § 301 states: “Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). 5 “The term ‘effluent limitation’ means any restriction established by a State or the [EPA] on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, ... including schedules of compliance.” 33 U.S.C. § 1362(11). 6 “The term ‘point source’ means any discernible, con- fined and discrete conveyance, including but not limited to any pipe, ditch, changel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feed- ing operation, or vessel or other floating craft, from which poliutants are or may be discharged.” 33 U.S.C. § 1362(14). l3a ants in accordance with the provisions of” the stat- ute. 33 U.S.C. § 1311(e) (emphasis added). Similarly, § 306 requires EPA to implement even more stringent “standards of performance” for new sources such as the new Coeur Alaska mine project.’ 33 U.S.C. § 1316(b). To carry out § 306’s directive, EPA must promulgate a list of categories of sources and, for new sources within each category, establish a national standard of performance (also referred to as a New Source Performance Standard). Jd. A stan- dard of performance is defined as “a standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction which [EPA] determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants.” 33 U.S.C. § 1316(a)(1) (emphasis added). As with the effluent reductions promulgated under § 301,8 § 306 states that, once a 7 “The term ‘new source’ means any source, the con- struction of which is commenced after the publication of proposed regulations prescribing a standard of perform- ance under this section which will be applicable to such source, if such standard is thereafter promulgated in ac- cordance with this section.” 33 U.S.C. § 1316(a)(2). “The term ‘source’ means any building, structure, facility, or installation from which there is or may be the dis- charge of pollutants.” 33 U.S.C. § 1316(a)3). 8 A standard of performance is one type of effluent limi- tation. See 33 U.S.C. § 1362(11). Therefore, § 301(e) and $ 306(e) have the same practical effect in this case. l4a standard of performance takes effect, “it shall be unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source.” 33 U.S.C. § 1316(e). Congress thus “intended these regulations to be absolute prohibitions.” E.J. du Pont de Nemours & Co. v. Train (“Du Pont”’, 430 U.S. 112, 138, 97 S. Ct. 965, 51 L.Ed.2d 204 (1977) (citing S. Rep. No. 92-414, at 58 (1971)). The legislative history of § 306 indicates that Congress made a “deliberate choice not to allow variances for new sources.” Riverkeeper, Inc. v. EPA, 358 F.3d 174, 192 (2d Cir. 2004). As such, no exceptions to a standard of performance are allowed. See id.; Du Pont, 430 U.S. at 138, 97 S. Ct. 965. To ensure compliance with effluent limitations and performance standards established pursuant to § 301 and § 306, Congress created the National Pollutant Discharge Elimination System (“NPDES”) permit program under § 402 of the Act. Through the NPDES program, EPA may permit a discharge, but only if it complies with § 301 and § 306. Additionally, NPDES permits are supposed to limit the release of pollut- ants into waterways as much as possible by imposing numerical discharge restrictions. Rybachek v. EPA, 904 F.2d 1276, 1283 (9th Cir. 1990). For this reason, the NPDES permit program is considered “central to the enforcement” of the Clean Water Act. Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1374 (D.C. Cir. 1977). In addition to the NPDES permit program, the Clean Water Act established a secondary permit program for the discharge of “dredged or fill material” under § 404. According to § 404, the Corps “may issue per- mits ... for the discharge of dredged or fill material 15a into the navigable waters at specified disposal sites.” 33 U.S.C. § 1844(a). We conclude that the permit scheme under § 404 is a limited permit program that applies only to dredged or fill material, not to the discharge of pollutants from industrial or municipal sources. 2. The language of the Clean Water Act is clear on the issue at the center of this dispute. First, § 301(a) prohibits any discharge that does not comply with several enumerated sections, including both § 301 and § 306, as well as § 402 and § 404. 33 U.S.C. § 1311(a). The use of “and” as a connector, instead of “or,” indicates that Congress intended for effluent limitations and standards of performance to apply to all applicable discharges, even those that facially qualify for permitting under § 404. Second, § 301(e) applies effluent limitations established by EPA to all discharges. 33 U.S.C. § 1311(e). Third, § 306(e) pro- hibits any discharge that does not comply with performance standards promulgated by EPA. 33 U.S.C. § 1316(e). In clear and precise terms, § 301 and § 306 require that discharges comply with appli- cable effluent limitations and = standards’ of performance. Neither § 301 nor § 306 contains an ex- ception for discharges that would otherwise qualify for regulation under § 404. Rather, § 301 and § 306 are “absolute prohibitions” with no _ exceptions. Du Pont, 430 U.S. at 138, 97 S. Ct. 965. Nevertheless, the defendants argue that § 301 and § 306 do not apply to § 404 permits because § 402 ex- plicitly requires compliance with those sections whereas § 404 does not. The defendants then reason, by way of negative inference, that § 404 contains an implied exception to the requirements of § 301 and 16a § 306 whenever a proposed discharge would meet the agencies’ regulatory definition of “fill material.” We disagree. Negative inferences and implied exceptions are generally disfavored. As the Supreme Court stated in United States v. Rutherford, 442 U.S. 544, 99 S. Ct. 2470, 61 L.Ed.2d 68 (1979): “Exceptions to clearly delineated statutes will be implied only where essential to prevent ‘absurd results’ or consequences obviously at variance with the policy of the enact- ment as a whole.” Id. at 552, 99 S. Ct. 2470 (citing Helvering v. Hammel, 311 U.S. 504, 510-11, 61 S. Ct. 368, 85 L.Ed. 303 (1941)). That is because courts have “generally presumed that Congress acts inten- tionally and purposely in the disparate inclusion or exclusion” of particular language. S.D. Warren Co. v. Me. Bd. of Envtl. Prot., --- U.S. ----, 126 S. Ct. 1843, 1852, 164 L.Ed.2d 625 (2006) (quoting Bates v. United States, 522 U.S. 23, 29-30, 118 S. Ct. 285, 139 L.Ed.2d 215 (1997)). The defendants have pro- duced no compelling reason to believe that Congress intended an exception within § 404 that it did not explicitly create. If the defendants’ interpretation were correct, Congress would have written § 301 and § 306 within § 402, not as separate sections. More- over, the implied exception urged by the defendants, if adopted, would turn § 404 into an exception that swallows the rule created by § 301, § 306, and § 402 by allowing the Corps to use a negative inference from an exception clause within § 402. Thus, § 404’s silence regarding the explicit and detailed require- ments in § 301 and § 306 cannot create an exception to those sections’ strongly-worded blanket prohibi- tions. The defendants’ interpretation would render § 301(e) and § 306(e) effectively meaningless. Courts strive to avoid interpreting a statute “in a manner that ren- 17a ders other provisions of the same statute inconsis- tent, meaningless, or superfluous.” Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991), quoted in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1024 (9th Cir. 2005); see also Ratzlaf v. United States, 510 U.S. 135, 140-41, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994); Watt v. Alaska, 451 U.S. 259, 267, 101 S. Ct. 1673, 68 L.Ed.2d 80 (1981) (“We must read the statutes to give effect to each if we can do so while preserving their sense and purpose.”). If the defendants were correct, the words “all” in § 301(e) and “any” in § 306(e)? would lose their meaning en- tirely. There is a much simpler explanation for the differ- ence in language between § 402 and § 404 than the defendants’ proposed negative inference. If EPA has adopted an effluent limitation or performance stan- dard applicable to a relevant source of pollution, § 301 and § 306 preclude the use of a § 404 permit scheme for that discharge. See 67 Fed. Reg. 31,129, 9 Section 301(e) provides: “Effluent limitations estab- lished pursuant to this section or section 1312 of this title shall be applied to al/ point sources of discharge of pollut- ants in accordance with the provisions of this chapter.” 33 U.S.C. § 1311(e) (emphasis added). Section 306(e), which applies to new sources like the Coeur Alaska mine project, provides: “After the effective date of standards of performance promulgated under this section, it shall be unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source.” 33 U.S.C. § 1316 (emphasis added). 18a 31,135 (May 9, 2002); EPA/Corps, Joint Response to Comments 12 (May 3, 2002). Accordingly, the NPDES program administered by EPA under § 402 is the only appropriate permitting mechanism for discharges subject to an effluent limitation under § 301 or a standard of performance under § 306. Consequently, there was simply no need for Congress to enumerate § 301 or § 306 within § 404 because Congress never intended for § 404 to govern dis- charges subject to effluent limitations or performance standards. Rather, when a discharge is subject to an effluent limitation or performance standard, that discharge must comply with the NPDES program as required by § 402. See 67 Fed. Reg. at 31,135; 47 Fed. Reg. 54,598, 54,606 (Dec. 12, 1982). This construction of the statute preserves the full meaning of all of its provisions without rendering any provision superfluous or resorting to negative in- ferences and implied exceptions. Additionally, although § 404 does not contain an ex- plicit exception to effluent limitations or standards of performance, it does contain exceptions to other pro- visions of the Clean Water Act. Specifically, § 404(f exempts discharges of dredged or fill material from certain activities from regulation under § 301(a), § 402, and § 404. 33 U.S.C. § 1344(M(1). Discharges related to agricultural activities and road construc: tion, among others, are exempted under § 404(f)(1). Mining is not listed as an exempt activity. “Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17, 100 S. Ct. 1905, 64 L.Ed.2d 548 (1980). The defendants have produced no reason to believe that Congress intended additional exemp- 19a tions to be created later. Therefore, the lack of any explicit exception to § 301 and § 306 within § 404, and the lack of an exception for process wastewater from mines, is strong evidence that Congress did not intend one. Jd. Even stronger evidence is Congress’s insistence in § 404(f) that even the discharges from the enumerated activities continue to be subject to effluent standards. 33 U.S.C. § 1344(f). Thus, the plain language of the Clean Water Act di- rectly resolves the conflict between the regulatory definition of “fill material” afd EPA’s performance standard for froth-flotation mill operations. Pursu- ant to § 301 and § 306, EPA’s performance standard for froth-flotation mills governs this situation. The language of § 404 does not lead to a contrary conclu- sion. B. Although the piain language of the Clean Water Act resolves the apparent regulatory conflict at the heart of this case, the regulatory history further demon- strates that neither the Corps nor EPA intended for the current regulatory definition of “fill material” to replace the performance standard for froth-flotation mills. Courts consider contemporancous explanations of regulations, such as those published in the Federal Register through notice-and-comment rulemaking, in order to determine an agency’s intent. See Hiillsbor- ough County v. Automated Med. Labs., Inc., 471 US. 707, 714-16, 105 S. Ct. 2371, 85 L.Ed.2d 714 (1985); Friends of Yosemite Valley v. Norton, 348 F.3d 789, 797 (9th Cir. 2003); League of Wilderness Defend- ers/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181, 1189-90 (9th Cir. 2002); Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 416-47 (4th Cir. 2003). And courts will not defer 20a to an agency’s interpretation of a regulation that contradicts the agency’s intent at the time it promul- gated the regulation. Gonzales v. Oregon, 546 U.S. 243, 126 S.Ct. 904, 916, 163 L.Ed.2d 748 (2006); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S. Ct. 2381, 129 L.Ed.2d 405 (1994); Alaska Trojan P’ship v. Gutierrez, 425 F.3d 620, 627-28 (9th Cir. 2005); see also Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (an agency’s interpretation of a regulation is not entitled to deference where it is “plainly erroneous” or “incon- sistent with the regulation”) (quoting Bowles uv. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S. Ct. 1215, 89 L.Ed. 1700 (1945)). When the agen- cies promulgated the current definition in 2002, they foresaw and specifically addressed the potential con- flict between the effects-based definition of “fill material” and performance standards already in place. To that end, the agencies explicitly stated that wastes subject to performance standards and efflu- ent limitations would not be considered “fill material.” The Corps’ application of the fill rule in this case, therefore, contradicts its interpretation at the time the regulation was promulgated. 1. Following its statutory obligation under § 301 and § 306, in 1982 EPA promulgated effluent limitations and standards of performance for sources within the category of ore mining. See 47 Fed. Reg. 25,682 (June 14, 1982) (proposed); 47 Fed. Reg. 54,598 (Dec. 3, 1982) (final). Within this category, FPA es- tablished a subcategory that applied to gold mining. See 40 C.F.R. §§ 440.100-440.104. For gold mines us- ing the froth-flotation mill process, EPA promulgated a zero-discharge standard: 2la Except as provided in paragraph (b)[2] of this section, there shall be no dis- charge of process waste-water to navigable waters from mills that use the froth-flotation process alone, or in conjunction with other processes, for the beneficiation of copper, lead, zinc, gold, silver, or molybdenum ores or any com- bination of these ores. 40 C.F.R. § 440.104(b)(1) (emphasis added); see also 47 Fed. Reg. at 25,697 (proposing zero discharge). EPA found that the zero-discharge standard was practicable because the majority of facilities existing at the time already achieved zero discharge through recycling and evaporation processes. 47 Fed. Reg. at 54,602. EPA promulgated this standard knowing that process wastewater discharges from froth- flotation mills contain a large amount of suspended solids that could otherwise qualify for regulation un- der § 404 pursuant to its effects-based definition of “fill material.” See 47 Fed. Reg. at 25,685 (“Mill proc- ess wastewater is characterized by very high suspended solids levels (often in the percent range rather than milligrams per liter) ... .”). In determin- ing that a_ strict zero-discharge limit was appropriate, EPA determined that the best available control technology included the complete recycling of process wastewater. See 47 Fed. Reg. at 54,602. Given that the regulation facially applies to any dis- charge from a froth-flotation mill, and that it provides some limited exceptions that do not include “fill material,” EPA intended for the prohibition to apply to discharges that would otherwise qualify as fill material under § 404. See 67 Fed. Reg. at 31,135. This conclusion is also supported by the fact that EPA promulgated the regulation notwithstanding its 22a definition of “fill material,” which was identical to the definition used by both agencies today. 3. The history of the current fill rule also demonstrates that both agencies intended for effluent limitations and performance standards to apply even to dis- charges that facially meet the definition of the term “fill material.” The Clean Water Act does not define the term “fill material.” Instead, Congress implicitly left that term to the Corps and EPA to define. See Res. Invs., Inc. v. U.S. Army Corps of Eng’rs, 151 F.3d 1162, 1166 (9th Cir. 1998). As with most regula- tory definitions, the agencies’ definitions of “fill material” have evolved over time. In fact, prior to the current regulatory definition of “fill material,” the Corps and EPA defined “fill material” differently. The Corps initially used an effects-based test, which defined “fill material” as “any pollutant used to cre- ate fill in the traditional sense of replacing an aquatic area with dry land or of changing the bottom elevation of a water body for any purpose.” 4C Fed. Reg. 31,320, 31,325 (July 25, 1975). EPA later adopted the identical definition. 40 Fed. Reg. 41,292, 41,298 (Sept. 5, 1975). Two years later, the Corps re- vised its definition and adopted a purpose-based test, which excluded from its definition “any pollutant dis- charged into the water primarily to dispose of waste.” 42 Fed. Reg. 37,122, 37,145 (July 19, 1977). In adopting its purpose-based definition, the Corps explained that there were many waste materials “which technically fit within our definition of ‘fill ma- terial’ but which were intended to be regulated under the NPDES program.” Jd. at 37,130. EPA, in 1980, chose to keep its effects-based test. See 45 Fed. Reg. 33,290, 33,421 (May 19, 1980). 23a The agencies’ differing definitions of “fill material” created a potential regulatory overlap. See, e.g., Res. Invs., 151 F.3d at 1165-66, 1168—69 (acknowledging overlap); Kentuckians, 317 F.3d at 432 (“the Corps acknowledged that the differing approaches in defin- ing ‘fill material’ employed by EPA and the Corps in their regulations had created some uncertainty about their interpretation of the Clean Water Act”). Many industrial wastes contain a high proportion of sus- pended solids and, therefore, have the effect of changing the bottom elevation of a body of water. As such, those wastes could have been considered fill material under EPA’s definition. However, EPA con- tinued to regulate many of those industrial wastes under § 402, and also continued to promulgate new effluent limitations and standards of performance for industrial pollutants with high concentrations of sol- ids, regardless of their potential to raise the bottom elevation of a body of water. See, e.g., 46 Fed. Reg. 8,260, 8,292 (Jan. 26, 1981) (regulating discharges of suspended solids from log-washing processes). In- deed, the new source performance standard for froth- flotation mills was adopted in 1982, despite the fact that waste from this process would have the effect of raising bottom elevation and, therefore, could other- wise constitute fill material under EPA’s effects- based test. See 47 Fed. Reg. at 25,685. Thus, not- withstanding the potential regulatory overlap created by the agencies’ differing definitions, EPA regulated many industrial pollutants under § 402. The agencies formally adopted this practice in a Memorandum of Agreement on Solid Waste (“MOA”) 24a in 1986. 51 Fed. Reg. 8,871 (Mar. 14, 1986). After adoption of the MOA in 1986, the Corps continually declined to exercise jurisdiction over mine tailings.!9 In 2002, the agencies promulgated their joint regula- tion defining the terms “fill material” and “discharge of fill material.” 67 Fed. Reg. at 31,130. The current regulatory definition of “fill material” provides: (1) Except as specified in paragraph (e\(3) of this section, the term “fill mate- rial” means material placed in waters of the United States where the material has the effect of: (i) Repiacing any portion of a wa- ter of the United States with dry land; or (ii) Changing the bottom elevation of any portion of a water cf the United States. 10 See, e.g., Memorandum from Col. John W. Pierce, U.S. Army Corps of Eng’rs, “Agency Jurisdiction over Certain Activities Connected with Mineral Extraction, Specifically Gold Mining, in Alaska” 1—2 (Apr. 14, 1992) (“The tailings behind the dam, however, are a waste product of the min- ing operation and are not under our jurisdiction according to the 1986 Memorandum of Agrecment....”); Letter from Glen E. Justis, U.S. Army Corps of Eng’rs 2-3 (June 18, 1991) (“The Corps has neither special expertise [nJor ju- risdiction by law to evaluate the impacts of the tailings discharge... The tailings do not meet the Corps’ definition of fill material.”). 25a (2) Examples of such fill material in- clude, but are not limited to: rock, sand, soil, clay, plastics, construction debris, wood chips, overburden from mining?! or other excavation activities, and ma- terials used to create any structure or infrastructure in the waters of the United States. (3) The term fill material does not in- clude trash or garbage. 33 C.F.R. § 323.2(e) (Corps’ reguiation); 40 C.F.R. § 232.2 (EPA’s regulation) (emphasis added). The agencies also defined “discharge of fill material” as follows: The term “discharge of fill material” means the addition of fill material into waters of the United States. The term generally includes, without limitation, the following activities: ... placement of overburden, slurry, or tailings or simi- lar mining-related materials... . 33 C.F.R. § 323.2(f); 40 C.F.R. § 232.2.12 11 “Overburden” is generally defined as rock or soil cleared away before mining. See EPA, Terms of Environ- ment, http://www.epa.gov/OCEPAterms/oterms. html (May 14, 2007). 12 The amici brief of 14 members of Congress argues persuasively that the adoption of these regulations by the Corps and EPA violates the purposes and plain language of the Clean Water Act by allowing waste material to be dumped into lakes, rivers, and other waters of the United Footnote continued on next page| 26a At the same time, however, the agencies made clear that they did not intend to change their long- standing practice, according to which EPA regulates discharges of pollutants for which it has established effluent limitations or standards of performance un- der the NPDES program.1% [W]e emphasize that today’s rule generally is in- tended to maintain our existing approach to regulating pollutants under either section 402 or 404 of the CWA. Effluent limitation guidelines and new source performance standards (“effluent guidelines”) [Footnote continued from previous page] States. SEACC bases its argument on a narrower ground pertaining to this particular mine. Thus, we do not reach the issue of the validity of these regulations. 13 In Kentuckians, the Fourth Circuit recognized the Corps’ prior practice of not regulating discharges subject to effluent limitations under § 404: {We conclude that the Corps’ interpretation of “fill material” as used in § 404 of the Clean Water Act to mean all material that displaces water or changes the bottom elevation of a water body ex- cept for “waste’—meaning garbage, sewage, and effluent that could be regulated by ongoing effluent limitations as described in § 402—is a permissible construction of § 404. 317 F.3d at 448. The court also explained the Corps’ prior position that it was not authorized to regulate discharges subject to effluent limitations. /d. at 445. 27a promulgated under section 304!4 and 306 of the CWA establish limitations and standards for speci- fied wastestreams from industrial categories, and those limitations and standards are incorporated into permits issued under section 402 of the Act. EPA has never sought to regulate fill material under effluent guidelines. Rather, effluent guidelines re- strict discharges of pollutants from _ identified wastestreams based upon the pollutant reduction capabilities of available treatment technologies. Rec- ognizing that some discharges (such as suspended or settleable solids) can have the associated effect, over time, of raising the bottom elevation of a water due to settling of waterborne pollutants, we do not con- sider such pollutants to be “fill material,” and nothing in today’s rule changes that view. Nor does today’s rule change any determination we have made regarding discharges that are subject to an effluent limitation guideline and standards, which will con- tinue to be regulated under section 402 of the CWA. Similarly, this rule does not alter the manner in which water quality standards currently apply under the section 402 or the section 404 programs. 67 Fed. Reg. at 31,135 (emphasis added). Addition- ally, in their Joint Response to Comments to the proposed rule, the agencies restated this position: 14 Sections 304 and 301 are interchangeable in this in- stance. Section 304 directs EPA in how to determine the degree of effluent reduction attainable under § 901. Citi- zens Coal Council v. EPA, 447 F.3d 879, 883 (6th Cir. 2006) (en banc) (citing 33 U.S.C. § 1314). 28a Under todays rule, we will continue, consistent with our long-standing prac- tice, to rely on the existence of effluent limitation guidelines or standards or a NPDES permit to inform the determi- nation of how a particular discharge is regulated under the Act. If a specific discharge is regulated under Section 402, it would not also be regulated un- der Section 404, and vice versa. EPA/Corps, Joint Response to Comments 30. In the same document, the agencies clarified that the new rule would not expand the jurisdiction of the Corps or permit previously prohibited discharges: “the sug- gestion that this rulemaking now provides a legal basis for previously illegal activities is not the case- no discharges that were previously prohibited are now authorized as a result of this rulemaking.” /d. Thus, the agencies clearly intended to exclude dis- charges subject to _ effluent limitations’ or performance standards from the new definition of “fill material.” In fact, when the Corps and EPA first proposed the revised, coordinated definition in 2000, they included an explicit exemption from the definition of “fill ma- terial” for discharges subject to effluent limitations or standards of performance. See 65 Fed. Reg. 21,292, 21,299 (Apr. 20, 2000). The stated purpose of the exemption was to maintain the agencies’ “current practice,” which was “consistent with paragraph B.5 of the 1986 Solid Waste MOA.” Id. at 21,297. Al- though the agencies removed the explicit exemption from the fina! rule, they did so only because com- menters expressed concern that the exception was vague and would create uncertainty regarding 29a whether the reference to effluent guidelines applied prospectively or only to those guidelines already in existence at the time. See 67 Fed. Reg. at 31,135. As such, the agencies still intended to regulate dis- charges subject to effluent limitations and standards of performance under § 402. The defendants attempt to undermine the clear in- tent of the agencies by focusing on a single sentence of the preamble in which the agencies stated “min- ing-related material that has the effect of fill when discharged will be regulated as ‘fill material.” Jd. The district court also relied on that one sentence. However, the defendants and the district court give far more weight to that singular statement than it deserves. It is difficult to understand why the agen- cies would painstakingly explain in the preamble that the new definition would not change their treatment of discharges subject to effluent limita- tions and standards of performance, only to completely contradict themselves two paragraphs later. The agencies themselves cleared up any poten- tial confusion in their Joint Response to Comments: Today’s final rule clarifies that any ma- terial that has the effect of fill is regulated under section 404 and further that the placement of “overburden, slurry, or tailings or similar mining- related materials” is considered a dis- charge of fill material. Nevertheless, if EPA has previously determined that cer- tain materials are subject to an [effluent limitation guideline] under specific cir- cumstances, then that determination remains valid. 30a EPA/Corps, Joint Response to Comments 12. Thus, the current fill rule only applies to those tailings and other mining-related materials that are not subject to effluent limitations or standards of performance. 15 The agencies could not have been more clear in ar- ticulating that this would be their preferred approach. 3. In fact, the agencies followed that approach with Coeur Alaska for quite some time. The Corps consis- tently informed Cocur Alaska that discharges from its froth-flotation mill would not be regulated as fill material under § 404. At least, the agencies took that approach up until the time that the Corps granted the permit that led to this dispute. Prior to the promulgation of the current fill rule in 2002, the Corps relied on the 1986 MOA in informing Coeur Alaska that it lacked jurisdiction and expertise to permit discharges of tailings from the Kensington 15 The Fourth Circuit's holding in Kentuckians is consis- tent with our conclusion. In Kentuckians, the court addressed the issue of whether the Corps had authority under § 404 to permit valley fills from mountain-top coal mining “when the valley fills serve no purpose other than to dispose of excess overburden from the mining activity.” 317 F.3d at 439. EPA had not promulgated a performance standard for mountain-top coal mining, so neither § 301 nor § 306 was implicated in that case. Jd. at 445. More- over, in that case, the Corps admitted that, under the 2002 definition, “it was authorized to regulate discharges of fill, even for waste, unless the fill amounted to effluent that could be subjected to effluent limitations.” Id. (em- phasis a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0064%3A0. Public record. Not legal advice.