Appendix — Alaska v. Southeast Alaska Alaska Conservation Council (No. 07-990)

la

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

No. 06-35679

SOUTHEAST ALASKA CONSERVATION

COUNCIL; SIERRA CLUB; LYNN CANAL

CONSERVATION,

Plaintiffs-Appellants,

Vv

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 IZZO, in his official

capacity as Principal Deputy Assistant Secretary of

the Army (Civil Works); UNITED STATES FOREST

SERVICE,

Defendants-Appellees,

and

COEUR ALASKA, INC.; GOLDBELT, INC.;

STATE OF ALASKA,

Defendants-Intervenors-Appellees.

Appeal from the United States District Court for

the District of Alaska

James K. Singleton, Senior District Judge,

Presiding

Argued and Submitted December 4, 2006—San

Francisco, California

Filed May 22, 2007

Before: Procter Hug, Jr., A. Wallace Tashima, and

Susan P. Graber, Circuit Judges.

2a

Opinion by Judge Hug

COUNSEL

Thomas S. Waldo and Demian A. Schane,

Earthjustice, Juneau, Alaska, for plaintiffs-

appellants.

John T. ‘Stahr and Mark A. Nitczynski, 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, Illinois; Cameron M. Leonard, State of

Alaska, Department of Law, Fairbanks, Alaska; and

David C. Crosby, David C. Crosby PC, Juneau,

Alaska, for defendants-intervenors-appellees.

Melissa Powers and Allison LaPlante, Pacific

Environmental Advocacy Center, Portland, Oregon;

Joseph M. Lovett, Appalachian Center for the

Economy & the Environment, Lewisburg, West

Virginia; and Peter Van Tuyan, Bessenyey & Van

Tuyn, Anchorage, Alaska, for amici curiae in support

of plaintiffs-appellants.

John W. Hartle, City and Borough of Juneau,

Juneau, Alaska; Amy Gurton Mead, Robertson,

Monagle & Eastaugh, Juneau, Alaska; Steven J.

Lechner, Mountain States Legal Foundation,

Lakewood, Colorado; 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,

Alaska, for amici curiae in support of defendants-

appellees.

3a

OPINION

HUG, Circuit Judge:

This case presents the question of whether the

issuance 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

water of the United States. Coeur Alaska proposes to

discharge daily 210,000 gallons of process

wastewater 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 contain the discharge and the area of the

lake will be increased about three-fold. The US.

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.?

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 approving the

general plan because they ar. Jependent on the validity of the

permit issued by the U.S. Army Corps of Engineers to Coeur

Alaska.

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

mining operation will include several above-ground

facilities, the mine itself will be entirely

subterranean.

To process the gold ore retrieved from the mine,

Coeur Alaska will construct a froth-flotation mill

facility. 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

economically viable gold minerals. About 40 percent

of the tailings will be used as backfill in the mine.

The remaining volume is, according to Coeur Alaska,

too large to transport off site and presents a waste

disposal problem. 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

5a

dispose of waste from its froth-flotation mill on dry

“uplands.” This disposal process involved the

construction 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

(“Forest Service”) approved the plan of operations for

the dry tailings facility, and the U.S. Army Corps of

Engineers (“Corps”) and the Environmental

Protection Agency (“EPA”) issued permits to the

company authorizing 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. 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 process wastewater containing the

tailings directly into nearby Lower Slate Lake.

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

3 The price of gold has since been rising steadily and is

currently over $680 an ounce, thus the original motivation for

the change in waste disposal from the mine no longer exists.

6a

wastewater, 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 current 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 al) 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

several 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 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, during the 10- to 15-year period of the

7a

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, including 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

eventually 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

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

8a

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

original 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

allegations and reasserted its causes of action. Coeur

Alaska, Goldbelt, Inc., and the State of Alaska

intervened 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

district 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

appeal on August 24, 2006, which prohibited Coeur

Alaska, the Corps, and the Forest Service from

proceeding 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 injunction, we have addressed two

emergency motions related to stabilizing a temporary

coffer dam that was hastily constructed by Coeur

Alaska prior to the injunction. Jd.; SEACC v. U.S.

9a

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

substantive 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

administrative agency means the court views the

case from the same position as the district court.”

Turtle Island, 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 Administrative 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 discretion, 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

interpreting the Clean Water Act that would appear

to govern Coeur Alaska’s proposed plan of operations

at the Kensington Gold Mine, but they result in

different 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

10a

elevation of the lake. See 33 C.F.R. § 323.2(e).

Accordingly, under this interpretation, the discharge

would be subject to the permit process governed by §

404 of the Clean Water Act. However, EPA

previously 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 regulations appear to apply in this case,

yet they are at odds. As explained below, the plain

language of the Clean Water Act resolves this

conflict 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

Kensington Gold Mine into Lower Slate Lake.

Furthermore, the federal agencies’ clear statements

at the time they adopted the current regulatory

definition of the term “fill material” demonstrate

that they did not intend for waste products subject to

effluent 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.

A.

We begin, as we must, with the text of the Clean

Water 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

lla

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 (1984). “If a court,

employing traditional 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 effect.” Jd. at 843 n.9.

1.

Congress passed the Clean Water Act in 1972 “to

restore 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

navigable waters by 1985. 33 U.S.C. § 1251(a\(1). It

also sought to make those waters suitable for fish,

shellfish, wildlife, and recreation. 33 U.S.C. §

1251(aX(2). One of Congress’s principal concerns in

passing the Clean Water Act was the use of water for

waste disposal, 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 unacceptable.”), quoted in

Weyerhauser Co. v. Costle, 590 F.2d 1011, 1043 (9th

Cir. 1978).

[1] The “cornerstone” and “fundamental premise” of

the Clean Water Act is § 301, which prohibits all

discharges of any pollutant except in compliance

with 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

12a

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 increasingly stringent, technology-based

effluent limitations® for point sources. Once an

effluent limitation is promulgated, § 301(e) requires

that it “shall be applied to all point sources of

discharge of pollutants in accordance with the

provisions of” the statute. 33 US.C. § 1311(e)

(emphasis added).

[2] 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

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).

“The term ‘point source’ means any discernible, confined

and discrete conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete fissure, container,

rolling stock, concentrated animal feeding operation, or vessel

or other floating craft, from which pollutants are or may be

discharged.” 33 U.S.C. § 1362(14).

7 “The term ‘new source’ means any source, the construction

of which is commenced after the publication of proposed

regulations prescribing a standard of performance under this

section which will be applicable to such source, if such standard

is thereafter promulgated in accordance with this section.” 33

U.S.C. § 1316(a\(2). “The term ‘source’ means any building,

l3a

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).

Id. A standard 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

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 (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.

structure, facility, or installation from which there is or may be

the discharge of pollutants.” 33 U.S.C. § 1316(a\3).

8 A standard of performance is one type of effluent limitation.

See 33 U.S.C. § 13862(11). Therefore, § 301(e) and § 306(e) have

the same practical effect in this case.

l4a

{3} 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

pollutants into waterways as much as possible by

imposing numerical discharge restrictions.

Rybacheck 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).

[4] 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 permits .. . for the discharge of dredged

or fill material into the navigable waters at specified

disposal sites.” 33 U.S.C. § 1344(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.

{5] 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. §

131l1(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

l5a

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)

prohibits 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

applicable effluent limitations and standards of

performance. Neither § 301 nor § 306 contains an

exception 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.

[6] Nevertheless, the defendants argue that § 301

and § 306 do not apply to § 404 permits because §

402 explicitly 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 § 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 (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

enactment as a whole.” Jd. at 552 (citing Helvering v.

Hammel, 311 U.S. 504, 510-11 (1941)). That is

because courts have “generally presumed that

Congress acts intentionally and purposely in the

disparate inclusion or exclusion” of particular

language. S.D. Warren Co. v. Me. Bd. of Envtl. Prot.,

126 S. Ct. 1843, 1852 (2006) (quoting Bates v. United

16a

States, 522 U.S. 23, 29-30 (1997)). The defendants

have produced 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. Moreover, 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 requirements in § 301 and § 306 cannot

create an exception to those sections’ strongly-

worded blanket prohibitions.

The defendants’ interpretation would render §

301(e) and § 306(e) effectively meaningless. Courts

strive to avoid interpreting a statute “in a manner

that renders other provisions of the same statute

inconsistent, 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 (1994); Watt v.

Alaska, 451 U.S. 259, 267 (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)9 would lose their meaning

entirely.

9 Section 301(e) provides: “Effluent limitations established

pursuant to this section or section 1312 of this title shall be

applied to ail point sources of discharge of pollutants 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

17a

[7] There is a much simpler explanation for the

difference in language between § 402 and § 404 than

the defendants’ proposed negative inference. If 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. See 67 Fed. Reg. 31,129,

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

discharges 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

inferences and implied exceptions.

Additionally, although § 404 does not contain an

explicit exception to effluent limitations or standards

of performance, it does contain exceptions to other

provisions of the Clean Water Act. Specifically, §

404(f) exempts discharges of dredged or fill material

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

from certain activities from regulation under §

301(a), § 402, and § 404. 33 U.S.C. § 1344(f(1).

Discharges related to agricultural activities and road

construction, 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 (1980). The

defendants have produced no reason to believe that

Congress intended additional exemptions 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).

[8] Thus, the plain language of the Clean Water Act

directly resolves the conflict between the regulatory

definition of “fill material” and EPA’s performance

standard for froth-flotation mill operations. Pursuant

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

conclusion.

B.

Although the plain language of the Clean Water

Act resolves the apparent regulatory conflict at the

heart of this case, the regulatory history further

demonstrates that neither the Corps nor EPA

intended for the current regulatory definition of “fill

material” to replace the performance standard for

19a

froth-flotation mills. Courts consider

contemporaneous 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 Hillsborough

County v. Automated Med. Labs., Inc., 471 U.S. 707,

714-16 (1985); Friends of Yosemite Valley v. Norton,

348 F.3d 789, 797 (9th Cir. 2003); League of

Wilderness Defenders/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, 446-47 (4th Cir. 2003).

And courts will not defer to an agency’s

interpretation of a regulation that contradicts the

agency's intent at the time it promulgated the

regulation. Gonzales v. Oregon, 546 U.S. 243, 126 S.

Ct. 904, 916 (2006); Thomas Jefferson Univ. v.

Shalala, 512 U.S. 504, 512 (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

(1997) (an agency’s interpretation of a regulation is

not entitled to deference where it is “plainly

erroneous” or “inconsistent with the regulation”)

(quoting Bowles v. Seminole Rock & Sand Co., 325

U.S. 410, 414 (1945)). When the _ agencies

promulgated the current definition in 2002, they

foresaw and specifically addressed the potential

conflict 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

effluent 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.

20a

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, EPA established a

subcategory that applied to gold mining. See 40

C.F.R. §§ 440.100-440.104. For gold mines using the

froth-flotation mill process, EPA promulgated a zero-

discharge standard:

Except as provided in paragraph (b)[2] of this

section, there shall be no discharge of process

wastewater 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 combination 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

under § 404 pursuant to its effects-based definition of

“fill material.” See 47 Fed. Reg. at 25,685 (“Mill

process wastewater is characterized by very high

suspended solids levels (often in the percent range

rather than milligrams per liter) . .. .”). In

determining that a strict zero-discharge limit was

2la

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

discharge 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

definition of “fill material,” which was identical to

the definition used by both agencies today.

2.

{9} The history of the current fill rule also

demonstrates that both agencies intended for

effluent limitations and performance standards to

apply even to discharges 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. Inus., Inc. v. U.S.

Army Corps of Eng’rs, 151 F.3d 1162, 1166 (9th Cir.

1998). As with most regulatory 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 create 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.” 40 Fed. Reg. 31,320,

31,325 (July 25, 1975). EPA later adopted the

identical definition. 40 Fed. Reg. 41,292, 41,298

22a

(Sept. 5, 1975). Two years later, the Corps revised its

definition and adopted a purpose-based test, which

excluded from its definition “any pollutant

discharged 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

material’ but which were intended to be regulated

under the NPDES program.” /d. at 37,130. EPA, in

1980, chose to keep its effects-based test. See 45 Fed.

Reg. 33,290, 33,421 (May 19, 1980).

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

defining ‘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 suspended 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 continued 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 solids, 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). Indeed, the new _ source

performance standard for froth-flotation mills was

adopted in 1982, despite the fact that waste from this

23a

process would have the effect of raising bottom

elevation and, therefore, could otherwise constitute

fill material under EPA’s effects-based test. See 47

Fed. Reg. at 25,685. Thus, notwithstanding 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”) 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.”

In 2002, the agencies promulgated their joint

regulation 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 material” means

material placed in waters of the United States

where the material has the effect of:

(i) Replacing any portion of a water of

the United States with dry land; or

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 mining operation and

are not under our jurisdiction according to the 1986

Memorandum of Agreement... .”); Letter from Glen E. Justis,

U.S. Army Corps of Eng’rs 2-3 (June 18, 1991) (“The Corps has

neither special expertise [nJor jurisdiction by law to evaluate

the impacts of the tailings discharge. . . . The tailings do not

meet the Corps’ definition of fill material.”).

24a

(ii) Changing the bottom elevation of

any portion of a water of uhe United

States.

(2) Examples of such fill material include, but

are not limited to: rock, sand, soil, clay,

plastics, construction debris, wood chips,

overburden from mining!! or other excavation

activities, and materials used to create any

structure or infrastructure in the waters of the

United States.

(3) The term fill material does not include

trash or garbage.

33 C.F.R. § 323.2(e) (Corps’ regulation); 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

similar 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 Environment,

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 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.

25a

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

under the NPDES program.!%

[WJe emphasize that today’s rule generally is

intended 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”) promulgated

under section 30414 and 306 of the CWA

establish limitations and _ standards for

specified wastestreams from _ industrial

categories, and those limitations and

standards are incorporated into permits issued

under section 402 of the Act. EPA has never

13 In Kentuckians, the Fourth Circuit recognized the Corps’

prior practice of not regulating discharges subject to effluent

limitations under § 404:

[Wle 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 except 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 ‘o regulate discharges

subject to effluent limitations. Jd. at 445.

14 Sections 304 and 301 are interchangeable in this instance.

Secuon 304 directs EPA in how to determine the degree of

effluent reduction attainable under § 301. Citizens Coal Council

v. EPA, 447 F.3d 879, 883 (6th Cir. 2006) (en banc) (citing 33

U.S.C. § 1314).

26a

sought to regulate fill material under effluent

guidelines. Rather, effluent guidelines restrict

discharges of pollutants from _ identified

wastestreams based upon the pollutant

reduction capabilities of available treatment

technologies. Recognizing 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 consider 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

continue 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).

Additionally, in their Joint Response to Comments to

the proposed rule, the agencies restated this position:

Under today’s rule, we_ will continue,

consistent with our long-standing practice, to

rely on the existence of effluent limitation

guidelines or standards or a NPDES permit to

inform the determination 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 under

Section 404, and vice versa.

EPA/Corps, Joint Response to Comments 30. In the

same document, the agencies clarified that the new

27a

rule would not expand the jurisdiction of the Corps

or permit previously prohibited discharges: “the

suggestion 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.” Jd.

Thus, the agencies clearly intended to exclude

discharges 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

material” 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. Although the agencies removed the

explicit exemption from the final rule, they did so

only because commenters expressed concern that the

exception was vague and would create uncertainty

regarding 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 discharges subject to effluent

limitations and standards of performance under §

402.

The defendants attempt to undermine the clear

intent of the agencies by focusing on a single

sentence of the preamble in which the agencies

stated “mining-related material that has the effect of

fill when discharged will be regulated as ‘fill

28a

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 agencies would painstakingly

explain in the preamble that the new definition

would not change their treatment of discharges

subject to effluent limitations and standards of

performance, only to completely contradict

themselves two paragraphs later. The agencies

themselves cleared up any potential confusion in

their Joint Response to Comments:

Today’s final rule clarifies that any material

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

discharge of fill material. Nevertheless, if EPA

has previously determined that certain

materials are subject to an [effluent limitation

guideline] under specific circumstances, then

that determination remains valid.

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 Fourth Circuit’s holding in Kentuckians is consistent

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.

Id. at 445. Moreover, 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

29a

The agencies could not have been more clear in

articulating that this would be their preferred

approach.

3.

[10] In fact, the agencies followed that approach

with Coeur Alaska for quite some time. The Corps

consistently informed Coeur 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

mine as “fill material.” For example, in a 1998 ROD,

the Corps made clear to Coeur Alaska that it “does

not regulate the placement of tailings.” U.S. Army

Corps of Eng’rs, ROD 13 (Jan. 18, 1998). And as late

as 2005, EPA informed Coeur Alaska that “[blecause

this project would be a new source, the New Source

Performance Standards (NSPS) for gold mines and

mills are applicable to the project.” EPA, ROD for §

402 NPDES Permit 3 (June 28, 2005) (citing 40

C.F.R. § 440.104). Therefore, in addition to the

regulatory history, the agencies have an established

record of refusing to regulate tailings discharged

from Coeur Alaska’s planned froth-flotation mill at

the Kensington mine as fill material under § 404.

C.

The agencies’ unequivocal statements regarding

their intent not to override effluent limitations and

effluent that could be subjected to effluent limitations.” Id.

(emphasis added).

30a

standards of performance when they promulgated

the current fill rule are dispositive and compel the

conclusion that the Corps overstepped its authority

in issuing a permit to Coeur Alaska under § 404. If

the agencies actually did intend to repeal or create

an exception to the performance standard for froth-

flotation mills when they promulgated the current

fill rule, they did not acknowledge or provide a

satisfactory explanation for the change in course.

When an agency decides to change course by

rescinding or changing a rule, the agency “is

obligated to supply a reasoned analysis for the

change.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42

(1983). If an agency fails to comply with that

obligation, the new rule is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance

with law” and is invalid under § 706(2)(A) of the

APA. Id. at 41 (citing 5 U.S.C. § 706(2)(A)); see also

Bush-Quayle ‘92 Primary Comm., Inc. v. Fed.

Election Comm’n, 104 F.3d 448, 453 (D.C. Cir. 1997).

Not only did the Corps and EPA not acknowledge a

change in course when they promulgated the fill

rule, they actually stated the opposite intent. That is,

the agencies made clear that effluent limitations and

standards of performance would continue to apply.

We could not have interpreted the fill rule as

creating an exception to the performance standard

for froth-flotation mills without the agencies

complying with the APA by explaining their intent in

the Federal Register and offering an opportunity for

notice and comment. See Motor Vehicle Mfrs., 463

U.S. at 42.

3la

D.

Finally, the performance standard governs because

it is more specific. It is a basic principle of regulatory

interpretation that a regulation dealing with a

“narrow, precise, and specific subject is not

submerged” by a later enacted regulation “covering a

more generalized spectrum.” Radzanower v. Touche

Ross & Co., 426 U.S. 148, 153 (1976), cited in Cal. ex

rel. Sacramento Metro. Air Quality Mgmt. Dist. v.

United States, 215 F.3d 1005, 1013 (9th Cir. 2000).

Unlike the fill rule, which pertains to fill material

generally, the performance standard covers froth-

flotation mills precisely. See 40 C.F.R. § 440.104.

Consequently, the agencies’ later promulgation of the

more general fill rule cannot supersede the narrow,

precise, and specific performance standard for froth-

flotation mills.

E.

The Corps also issued a permit to Goldbelt, Inc., for

construction of a marine terminal facility at Cascade

Point and issued a ROD approving Goldbelt’s plan of

operations. See U.S. Army Corps of Eng’rs, Permit to

Goldbelt, Inc. (July 15, 2005); U.S. Army Corps of

Eng’rs, Revised ROD 4 (Mar. 29, 2006). Goldbelt’s

permit and ROD are predicated on a mine design of

which a critical component is Coeur Alaska’s

discharge of process wastewater into Lower Slate

Lake. But for that mine design, the Cascade Point

facility would be unnecessary. In fact, the Corps

itself stated that “without Kensington mine, the

Cascade Point facility would not be constructed in

the foreseeable future.” U.S. Army Corps of Eng’rs,

Revised ROD 4. For that reason, the Corps

considered the terminal a “component” of the

Kensington project and analyzed the terminal

32a

proposal in the same Final Supplemental

Environmental Impact Statement and Revised ROD

as the Kensington project. Id. Indeed, Goldbelt must

have had a “significantly protectable interest”

relating to the subject of this case in order to

intervene as a defendant, which it chose to do.

United States v. City of L.A., 288 F.3d 391, 398 (9th

Cir. 2002); Fed. R. Civ. P. 24(a)(2). Importantly, in

its motion to intervene, the company admitted that

“Goldbelt’s Cascade Point marine terminal is an

integral part of the approved Plan of Operations, and

may be constructed and used solely to service the

Kensington Mine as contemplated in that Plan of

Operations.” Goldbelt further admitted that “[alny

ruling by this Court that delays or disrupts

construction of the mine will leave Goldbelt with a

‘permitted’ facility that either it cannot build or

cannot be operated once built because the condition

precedent of Goldbelt’s permits is construction and

operation of the Kensington Mine as contemplated in

the challenged Plan of Operations.” Consequently,

Goldbelt’s permit and ROD are critically premised on

Coeur Alaska’s § 404 permit. Because that permit is

invalid, the Corps’ permit and ROD for the Cascade

Point facility should be vacated.

F.

{11] Under the APA, the normal remedy for an

unlawful agency action is to “set aside” the action. 5

U.S.C. § 706(2). In other words, a court should

“vacate the agency’s action and remand to the agency

to act in compliance with its statutory obligations.”

Defenders of Wildlife v. EPA, 420 F.3d 946, 978 (9th

Cir. 2005), cert. granted, 127 S. Ct. 853 (2007); see

also Am. Biosci., Inc. v. Thompson, 269 F.3d 1077,

1084 (D.C. Cir. 2001). For the reasons discussed

33a

above, the Corps’ permit for the discharge of process

wastewater from the froth-flotation mill at the

Kensington Gold Mine into Lower Slate Lake

violates § 301 and § 306 of the Clean Water Act. The

Corps’ permit for construction of a marine terminal

at Cascade Point critically depends on the unlawful

permit to Coeur Alaska. Consequently, we remand to

the district court to vacate both permits, as well as

the RODs on which they are based.

V.

In conclusion, we reverse the district court, remand

to the district court to vacate the permits issued to

Coeur Alaska and Goldbelt, and vacate the RODs

that approved Coeur Alaska’s and Goldbelt’s plans of

operations. The Corps violated the Clean Water Act

by issuing a permit to Coeur Alaska for discharges of

slurry from the froth-flotation mill at the Kensington

Gold Mine. EPA’s performance standard for froth-

flotation mills, promulgated pursuant to § 301 and §

306 of the Clean Water Act, prohibits discharges

from such operations into the navigable waters of the

United States. No exceptions are provided by either

the regulation or the statute. Even though the

discharge in this case facially qualifies for the

permitting scheme under § 404 of the Clean Water

Act because it will change the bottom elevation of

Lower Slate Lake, the discharge is nevertheless

prohibited by the clearly applicable and _ specific

performance standard. The plain language and

structure of the Clean Water Act demonstrate that

EPA’s performance standard governs in this case.

Also, the agencies’ statements made during

promulgation of the regulation defining “fill

material,” as well as their statements made to Coeur

Alaska during the lengthy permitting process,

34a

indicate that they intended this result, Thus, the

district court erred it granting summary judgment

in favor of the defendamts. The case is remanded to

the district court for action pursuant to this opinion.

REVERSED aad REMANDED.

35a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF ALASKA

SOUTHEAST ALASKA

CONSERVATION COUNCIL;

SIERRA CLUB; and LYNN No. 1:05-cv-

CANAL CONSERVATION, 00012-JKS

Plaintiffs MEMORANDUM

DECISION

Vv.

UNITED STATES ARMY CORPS

OF ENGINEERS; COLONEL

TIMOTHY J. GALLAGHER, in

his official capacity as District

Engineer; LARRY L. REEDER, in

his official capacity as Chief of the

Regulatory Branch; JOHN C.

LEEDS, III, in his capacity as

manager of the Juneau Field

Office; GLEN E. JUSTIS, in his

official capacity as Chief of the

East Section; DOMINIC IZZO, in

his official capacity as Principal

Deputy Assistant Secretary of the

Army (Civil Works); and UNITED

STATES FOREST SERVICE,

Defendants,

and

COEUR ALASKA, INC.; STATE

OF ALASKA; and GOLDBELT,

INC.,

Defendant-Interveners.

{Re: Motions at

Dockets 41 and

80]

36a

I. PROCEEDINGS

Plaintiffs Southeast Alaska Conservation Council,

Sierra Club, and Lynn Canal Conservation appeal

the decision of the U.S. Army Corps of Engineers

(“Corps”) decision to grant permits to Coeur Alaska,

Inc. and Goldbelt, Inc, under § 404 of the Clean

Water Act (““CWA”).! Plaintiffs seek to vacate the §

404 permits, Record of Decision and plan of

operations, and permanently enjoin the Corps and

Forest Service from allowing any activities

authorized by the vacated permits, ROD, and plan of

operations. At Docket No. 41 Plaintiffs have moved

for somomary jodgment. At Docket No. 80 the Federal

Defendants have opposed the motion and cross-

moved for eammary judgment in their favor.? At

eeket Nos. 61, 67, and 71, respectively, Interveners

Goldbelt, Inc., State of Alaska, and Coeur Alaska,

Ine. have filed oppositions to Plaintiffs’ motion. City

and Borough of Juneau and Berners Bay Consortium

have filed amici briefs in opposition to Plaintiffs’

Motion at Docket Nos. 88 and 92, respectively. At

Docket No. 97 Southeast Conference has filed an

amicus brief in support of the Plaintiffs’ motion.

Plaintiffs have replied to the opposition.

At Docket Nos. 83 and 86 Intervener Coeur Alaska

and the Federal Defendants have requested oral

argument. The Court having reviewed the moving

papers, oppositions, and amici briefs has determined

that oral argument would not assist the court in

deciding the motions. The requests for oral argument

are DENIED.

1 33 U.S.C. § 1344.

2 For convenience, the named defendants are referred to

collectively as “Federal Defendants.”

37a

Il. BACKGROUND®?

The permit granted Coeur Alaska allows it, as the

operator of the Kensington Mine, to discharge

approximately 210,000 gallons per day of tailings

remaining after gold ore is processed using the

“froth-flotation process” as “fill material” directly

into Lower Slate Lake. The lake will be utilized as a

storage facility impounding the tailings.*

After the ore is extracted from the ground, it will be

processed through crushing, grinding, flotation,

thickening and filtration.5 After the ore is crushed

and ground, it is fed to the flotation tanks in slurry

form, where air, conditioners and frothing agents

will be added to cause the gold-bearing minerals to

attach to air bubbles at the top of the tank.® The

gold-bearing froth is then skimmed off and further

concentrated in additional flotation tanks.? Most of

the chemicals added to the system will stay in the

flotation tanks or be removed with the flotation

concentrate, not discharged with the tailings. *

Similarly, most of the other metals will be removed

from the system along with the gold concentrate, not

discharged with the tailings. Following the final

% The background and history of this case are well known to

the parties and, in the interests of brevity, will not be replicated

here except as necessary to an understanding of the Court's

decision.

4 Agency Record (“AR”), Vol. 8, 003328.

> AR Vol. 8, 003360-61; see also Vol. 1, 000021.

® AR Vol 8, 003360-61.

7 Id.

5 Jd.

® Id.; see also AR Vol. 1, 000005.

38a

flotation, the ore concentrate is dewatered and

placed in specialized, sealed marine transport

containers for shipment to a facility outside

Southeast Alaska for further processing. '° No

cyanide processing will take place at the Kensington

Mine or elsewhere in Southeast Alaska."!

“Tailings” are the solid material left in the bottom

of the flotation tanks after the gold-bearing material

has been removed. 12 Using “high-grade” mine

operations, approximately 40% of the tailings should

be backfilled to the mine, leaving approximately 4.5

million tons of tailings to be discharged into the

Lower Slate Lake impoundment.’ The tailings will

be combined with liquid in a slurry and transported

through a 3.5 mile, double-walled, high-density

polyethylene pipeline approximately 6 inches in

diameter to the lake impoundment. * The solid

component of the slurry (i.e., the tailings) will

comprise approximately 55% of the slurry. Before the

tailings slurry leave the mill, a polymer and

flocculant will be added to agglomerate the smaller

tailings and enhance settling of the tailings once

they are deposited into the lake impoundment.!° The

tailings slurry is to be discharged from the bottom of

the submerged pipe and through perforations in that

pipe, which will be moved periodically to ensure

10 AR Vol. 1, 000005; Vol. 8, 003360-61.

11 AR Vol. 1, 000005, 000021.

12 AR Vol. 8, 003362.

13 AR Vol 1, 000007; Vol. 8, 003358, 003362, 003367.

14 AR Vol. 8, 003364.

15 Jd. The added materials are not toxic and are expected to

have no effect on water quality other than the benefit of

enhancing the settling of the fine material.

39a

equal distribution of the tailings.'* The tailings will

be placed at a depth that would prevent

remobilization of the tailings.'!’? Upon closure of the

mine, the tailings will fill the lake to its current

ordinary high water mark, thus reaching a depth of

approximately 50 feet.!® At that time, the lake will

have grown to approximately 62 acres from its

current size of 23 acres, and will be approximately 33

feet deep over the top of the tailings.'® The discharge

of tailings to the lake impoundment is limited to the

pre-specified volume of 4.5 million tons. 2° The

tailings must also be tested quarterly te ensure that

there are no significant deviations from the original

tailings analysis that might affect monitoring,

closure requirements, water quality or any other

permit condition.?!

It is anticipated that most aquatic life in Lower

Slate Lake will be lost during mining operations,

primarily due to being covered with the discharged

material.22 Tests on the tailings show that they will

not generate an acid discharge or metals leachate.?°

16 Jd.

17 AR Vol 1, 000022.

18 AR Vol 1, 000013: Vol. 8, 003453.

19 AR Vol. 1, 000013. The increased lake area at closure is

expected to consist of approximately 47 acres of deepwater

habitat and 15 acres of shallow-water habitat. The 15 acres of

shallow-water habitat is expected to convert over time to

wetlands or vegetated shallows.

20 See AR Vol 1, 000068, Vol. 13, 006285.

21 AR Vol. 1, 000022, 000067 68.

22 AR Vol. 1, 000021-22; Vol. 8, 003575.

23 AR Vol. 1, 000030.

40a

While the pH around the discharge pipe is expected

to be toxic to the aquatic environment, it is

anticipated this will dissipate very rapidly. °*

Reclamation of the 62-acre lake, including capping of

the tailings, is required as part of the project.25 As a

result, it is expected that the lake would recover over

time, and would provide at least equivalent aquatic

habitat and productivity as it does currently.2® This

includes habitat for Dolly Varden char and other

aquatic organisms.??

Mid-Lake East Fork Slate Creek, an upstream

tributary of Lower Slate Lake, will be diverted

around the lake impoundment by a pipeline. 7°

Further, a “reverse osmosis” water treat 2nt system

will be constructed to remove solids and metals from

the lake impoundment water before any of that

water is allowed to enter downstream waters.” The

treated water will be transported from the treatment

plant to the diversion pipeline, and then flow via a

spillway to East Fork Slate Creek, downstream of

the lake, eventually joining Slate Creek and entering

Berners Bay.*° Discharges of the treated water from

Lower Slate Lake are subject to a CWA § 402

24 AR Vol. 1, 000022.

25 AR Vol. 1, 000013, 000015, 000022-23. A reclamation bond

on the operation is being held to ensure that the lake is

reclaimed in accordance with the approved plans. See AR Vol. 1,

000005.

26 AR Vol. 1, 000022-23; Vol. 8, 003573-—76.

27 AR Vol. 1, 000022-23, 000069; Vol. 8, 003573-76.

28 AR Vol. 8, 003367.

29 AR Vol. 1, 000015; Vol. 8, 003367.

30 Jd.

4la

NPDES permit and must meet state water quality

standards.*!

The overall impact of the project permitted by the

Corps and EPA is to convert Lower Slate Lake into a

temporary settling pond for the disposal and

treatment of the tailings generated by the mining

operations at the Kensington Mine. Broadly stated,

the project entails; (1) isolating Lower Slate Lake

from the rest of the drainage system, (2) using the

lake as a tailing storage facility impounding the

tailings, and (3) restricting the release of water into

the downstream drainage system to that which

meets the requirements of § 402. The adverse

impact, primarily the destruction of aquatic life, is

expected to be limited to Lower Slate Lake. At the

termination of the mining operations, restoration of

the lake as an aquatic resource is expected to occur.

Ill. ISSUES

Plaintiffs contend that the permitting process

involved in this case was governed by the more

stringent requirements of § 402 of the CWA,®? not §

404. At the heart of the controversy are the

regulations defining “fill material.” The

Environmental Protection Agency (“EPA”) and the

Corps use the same definition.**

31 AR Vol. 1, 000005. The State agreed in its CWA § 401

certification that the water discharged from the tailings

disposal facility (Lower Slate Lake) to East Fork Slate Creek,

which was permitted under a CWA § 402 NPDES permit, would

meet state water quality standards. AR Vol. 2, 001101.

Plaintiffs do not challenge the issuance of this permit.

42 33 U.S.C. § 1342.

33 33 C.F.R. § 323.2(e) (Corps); 40 C.F.R. § 232.2 (EPA).

[Note: The quoted provision is the Corps’ regulation; the

42a

(e) (1) Except as specified in paragraph (e)(3)

of this section, the term fill material means

material placed in waters of the United States

where the material has the effect of:

(i) Replacing any portion of a water of

the United States with dry land; or

(ii) Changing the bottom elevation of

any portion of a water of the United

States.

(2) Examples of such fill material include, but

are not limited to: rock, sand, soil, clay,

plastics, construction debris, wood chips,

overburden from mining or other excavation

activities, and materials used to create any

structure or infrastructure in the waters of the

United States.

(3) The term fill material does not include

trash or garbage.

Also relevant is the definition of “discharge of fill

material,” defined as:*4

(f) 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 fill that is necessary for the

construction of any structure or infrastructure

in a water of the United States; the building of

any structure, infrastructure, or impoundment

requiring rock, sand, dirt, or other material for

its construction; site-development fills for

definition in the EPA regulations is identical except that the

definitions are not set forth in separate subdivisions. |

34 33 C.F.R. § 323.21) (Corps); 40 C.F.R. § 232.2 (EPA)

(emphasis added).

43a

recreational, industrial, commercial,

residential, or other uses; causeways or road

fills; dams and dikes; artificial islands;

property protection and/or reclamation devices

such as riprap, groins, seawalls, breakwaters,

and revetments; beach nourishment; levees;

fill for structures such as sewage treatment

facilities, intake and outfall pipes associated

with power plants and subaqueous utility

lines; placement of (fill material for

construction or maintenance of any liner,

berm, or other infrastructure associated with

solid waste landfills; placement of overburden,

slurry, or tailings or similar mining-related

materials; and artificial reefs. The term does

not include plowing, cultivating, seeding and

harvesting for the production of food, fiber,

and forest products (See §323.4 for the

definition of these terms). See §323.3(c)

concerning the regulation of the placement of

pilings in waters of the United States.

Plaintiffs contends that either: (1) in issuing the

permit, the Corps misapplied the regulations; or (2)

if the regulations were properly applied, the

regulations are invalid as contrary to the CWA.*5

The real crux of the question before this Court is:

35 The Court notes that Plaintiffs also challenges the

granting of the permit on the grounds that it does not meet the

requirements of the several sections of the CWA, e.g., §§ 306/e)

and 3l1l(e). This argument must be rejected. If the permit was

properly issued under § 404, those provisions of the CWA are

inapplicable. The applicable standard to be applied are the

guidelines promulgated by the EPA based on criteria specified

in 33 U.S.C. § 1343(c). See also 33 C.F.R. 323.6(a). If the permit

was not properly issued under § 404 it is invalid in any event

and the argument of Plaintiffs moot.

44a

Under § 404, may the Corps authorize the use of

waters of the United States as a settling pond? For

the reasons stated below, the Court holds that it

may.

IV. STANDARD OF REVIEW

This Court in reviewing an agency decision may set

it aside if the agency action is “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance

with law.”°6 It is self-evident that an agency decision

based upon an _ invalid’ regulation or_ the

misapplication of a regulation is “otherwise not in

accordance with law.”37

In determining the validity of agency regulations,

this Court must apply the rule established by the

U.S. Supreme Court in Chevron.**

When a court reviews an agency's construction

of the statute which it administers, it is

confronted with two questions. First, always,

is the question 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. * * * * [I]f the

statute is silent or ambiguous with respect to

36 5 U.S.C. § 706(2)(A).

37 See, e.g., Regents of the Univ. of California v. Heckler, 771

F.2d 1182, 1187 (9th Cir. 1985) (invalid regulation), overruled

on other grounds by Good Samaritan Hosp. v. Shalala, 508 U.S.

402 (1993); Alaskan Trojan P’ship v. Gutierrez, 425 F.3d 620,

627-628 (9th Cir. 2005) (agency interpretation of its own

regulations)

38 Chevron v. NRDC, 467 U.S. 837, 842-843 (1984) (footnote

omitted)

45a

the specific issue, the question for the court is

whether the agency's answer is based on a

permissible construction of the statute.

The Supreme Court has, however, placed a limitation

on the application of Chevron.*®

Deference in accordance with Chevron,

however, is warranted only when it appears

that Congress delegated authority to the

agency generally to make rules carrying the

force of law, and that the agency

interpretation claiming deference was

promulgated in the exercise of that authority.

Otherwise, the interpretation is entitled to

respect only to the extent it has the power to

persuade.

When reviewing the interpretation of agency

regulations, courts must give substantial deference

to an agency's interpretation of its own regulations.”

This Court “must defer to the [Administrator’s]

interpretation unless an alternative reading is

compelled by the regulation's plain language or by

other indications of the [Administrator's] intent at

the time of the regulation’s promulgation.”*!

39 Gonzales v. Oregon, 546 U.S. __, __, 126 S. Ct. 904, 914-

915 (2006) (citations and internal quotation marks omitted).

40 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512

(1994) (citations omitted).

41 Jd. (internal quotation marks and citation omitted); see

also Auer v. Robbins, 519 U.S. 452, 461 (1997) (an agency's

interpretation of its own regulations is “controlling unless

plainly erroneous or inconsistent with the regulation”)

(citations and interna! quotation marks omitted); Wards Cove

Packing Co. v. NMFS, 307 F.3d 1214, 1218 (9th Cir. 2002) (“An

agency's interpretation of regulations it is charged with

administering is entitled to a high degree of deference and will

46a

V. DISCUSSION

The CWA divides the permitting process into two

segments. In general, permitting for the discharge of

effluents is vested in the EPA, the granting of which

must meet strict standards.*2 Congress has, however,

carved out an exception, vesting primary permitting

authority in the Corps for the disposal of “dredged or

fill material” into navigable waters at specified

disposal sites.4* The standards to be applied for the

issuance of these permits is determined in

accordance with guidelines developed by the EPA in

conjunction with the Corps, and are significantly less

stringent.*4

Turning first to the issue of the validity of the

regulation. Congress has clearly and unequivocally

delegated authority to the EPA to issue regulations

necessary to carry out its functions under the CWA.*

As noted above, one of the functions of the EPA is to

develop guidelines, in conjunction with the Corps, for

use in guiding the Cs: 9s in processing permits under

§ 404.46In the case at bar, it is undisputed that

Congress has not defined the term “fill material,”

be upheld as long as it is not plainly erroneous or inconsistent

with the regulation.”) (citations omitted).

42 33 U.S.C. § 1342(a).

43 33 U.S.C. § 13441a).

44 33 U.S.C. §§ 1344(b\(1), 1343(c). The guidelines are

promulgated in 33 C.F.R. Part 230. Plaintiffs do not contends

that the permit issued to Coeur Alaska does not meet these

guidelines.

45 33 U.S.C. § 1361l\a) (“The Administrator is authorized to

prescribe such regulations as are necessary to carry out his

functions under this chapter.”).

46 33 U.S.C. § 13441bx 1).

47a

thereby leaving its definition to the EPA, which the

EPA did using the rule-making process of the

Administrative Procedures Act. Accordingly, this

Court must give Chevron-type deference to the EPA’s

definition of “fill material” and “discharge of fill

material.”47

Plaintiffs argue that the regulations are invalid

because they do not comply with the “expressed

intent of Congress.” Specifically, that because they

do not comply with standards promulgated by the

EPA, they are contrary to § 306(e) of the CWA.4*

Plaintiffs’ argument on this point is not persuasive.

Plaintiffs do not specify which standard of

performance is violated by these regulations, which

simply define what constitutes fill material within

the scope of § 404. This Court cannot say that the

definition of fill material contained in the regulations

promulgated by the EPA and Corps is not a

permissible construction of the statute. the Agency

could reasonably conclude that its definition is

consistent with the distinction Congress sought to

make between § 402 and § 404.

Turning to the interpretation of the regulation and

its application in this case. First, the Court notes

that it is uncontested that the slurry to be

discharged into Lower Slate Lake will “change the

bottom elevation” of the lake. Thus, it at least

facially falls within the definition of “fill material”

47 See Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 316 F.3d

916, 921 (9th Cir. 2003).

48 33 U.S.C. § 1316(c) (“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.”).

48a

contained in the regulations. Plaintiffs do not dispute

this. Plaintiffs argue that the inclusion of mine

tailings within the definition of “fill material” is

contrary to the agencies’ intent at the time the

regulations were promulgated. Plaintiffs’ argument

is essentially predicated upon the point that at the

time the regulations were amended in 2002, the

statement accompanying the notice of adoption of the

final rule made clear that there was no intent to

include mine tailings as “fill material” or “discharge

of fill material.”4% The provisions cited by Plaintiffs

taken alone and in isolation would support a finding

of a clear indication by the EPA and Corps that the

interpretation advanced by Plaintiffs is correct.

However, Plaintiffs overlook or ignore other

statements included in the adoption statement that

contradict Plaintiffs’ position. Specifically:

Today’s final rule also includes _ several

clarifying changes to the term “discharge of fill

material.” Specifically, the term

“infrastructure” has been added in several

places following the term “structure” to

further define the situations where the

placement of fill material is considered a

“discharge of fill material.” In addition, the

phrases “placement of fill material for

construction or maintenance of any liner,

berm, or other infrastructure associated with

solid waste landfills” and “placement of

overburden, slurry, or tailings or similar

mining-related materials” have been added to

the definition of “discharge of fill material” to

49 Quoting various excerpts from 67 Fed. Reg. 31,129 — 31,143

(May 9, 2002).

49a

provide further clarification of the types oj

activities regulated under section 404.5°

and,

The language in today’s final rule will clarify

that any mining-related materia] that has the

effect of fill when discharged will be regulated

as “fill material.” We made this clarification

because it was clear from the comments that

some were reading the examples we identified

as an exclusive list. The general intent of this

rule is to cover materials that have the effect

of fill, not simply to focus on any one

industrial activity. We believe that the

additional mining related examples _ will

address the confusion reflected in the

comments. Finally, as discussed in section

II.B.1.c of this preamble, we do not agree that

the CWA contains a_ blanket prohibition

precluding discharges of “waste” materials in

to waters of the U.S. Instead, the Act

establishes the framework for regulating

discharges into waters and we believe the

section 404 program is the most appropriate

vehicle for regulating overburden and other

mining-related materials.®!

Contrary to the arguments of Plaintiffs, the

interpretation of the regulations in this case is not

contrary to the intent of the EPA Administrator at

the time she adopted the regulations in question.

While Plaintiffs may offer another plausible

interpretation of the regulations in question, that

interpretation is not the only reasonable

%9 Id., 31,130 (emphasis added).

51 Jd., 31,135 (emphasis added)

50a

interpretation of the regulation and does not compel

this court to strike down the Corps’ different

interpretation.5? Congress has deemed it appropriate

to delegate to the Administrator of Environmental

Protection Agency and the Secretary of the Army to

coordinate their respective jurisdictions under the

Clean Water Act. This they have done by duly

adopted regulations to which this Court must defer.

The Corps properly issued the permit to Coeur

Alaska, Inc. under § 404 of the Clean Water Act.

Plaintiffs also seek to set aside the permit issued to

Goldbelt, Inc. to construct a marine terminal facility.

As a basis for this action, Plaintiffs rely on the

assumption that Coeur Alaska’s § 404 permit will be

revoked and, therefore, the need for the marine

terminal facility becomes moot. As the Court has

held that the permit to Coeur Alaska was properly

issued, there is no basis for granting the relief

requested as to Goldbelt, Inc. The same rationale

applies to the ROD issued by the Forest Service.

VI. CONCLUSION/ORDER

Based upon the foregoing, Plaintiffs’ Motion for

Summary Judgment at Docket No. 41 is DENIED;

and the Cross-Motion for Summary Judgment filed

by the Federal Defendants at Docket No. 80 is

GRANTED.

52 Akootchook v. United States, 271 F.3d 1160, 1167 (9th Cir.

2001).

5la

IT IS HEREBY ORDERED THAT the complaint

be, and it hereby is, DISMISSED, with prejudice.

The Clerk of the Court to enter judgment

accordingly.

Dated at Anchorage, Alaska, this 3rd day of August

2006.

s/ James K. Singleton, Jr.

JAMES K. SINGLETON, JR.

United States District Judge

52a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOUTHEAST ALASKA

CONSERVATION COUNCIL; et | No. 06-35679

al.,

D.C. No. 1:05-cev-

Plaintiffs-Appellants, | 00012-JKS

v. District of Alaska

Juneau

UNITED STATES ARMY

CORPS OF ENGINEERS, et al ORDER

Defendants-

Appellees,

and

COEUR@LASKA. INC. et al.

Defendant-

Intervenors- Appellees.

Before: HUG, TASHIMA, and GRABER, Circuit

Judges.

The panel has voted to deny the Federal Appellees’

Petition for Limited Panel Rehearing.

Judge Graber has voted to deny the petitions for

rehearing en banc of Intervenor-Appellee Goldbelt,

Inc., Intervenor-Appeliee Coeur Alaska, Inc., and

Appellee State of Alaska. Judge IHlug and Judge

Tashima have voted to recommend denial of the

petitions for rehearing en banc.

53a

The full court has been advised of the petitions for

rehearing en banc and no active judge has requested

a vote on whether to rehear the matter en banc. Fed.

R. App. P. 35(b)

The petitions for rehearing en banc are DENIED.

54a

APPENDIX D

TITLE 33—NAVIGATION AND NAVIGABLE

WATERS

CHAPTER 26—WATER PCLLUTION PREVENTION

AND CONTROL

SUBCHAPTER HI—STANDARDS AND

ENFORCEMENT

Sec. 1311. Effluent limitations

(a) Illegality of pollutant discharges except in

compliance with law

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.

BK

(e) All point discharge source application of effluent

limitations

Effluent limitations established pursuant to this

section or section 1312 of this title shall be applied to

all point sources of discharge of pollutants in

accordance with the provisions of this chapter.

55a

TITLE 33—NAVIGATION AND NAVIGABLE

WATERS

CHAPTER 26—WATER POLLUTION PREVENTION

AND CONTROL

SUBCHAPTER HI—STANDARDS AND

ENFORCEMENT

Sec. 1316. National standards of performance

(a) Definitions

For purposes of this section:

(1) The term “standard of performance” means a

standard for the control of the discharge of pollutants

which reflect the greatest degree of effluent

reduction which the Administrator 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.

(2) The term “new source” means any source, the

construction of which is commenced after the

publication of proposed regulations prescribing a

standard of performance under this section which

will be applicable to such source, if such standard is

thereafter promulgated in accordance with this

section.

(3) The term “source” means any building,

structure, facility, or installation from which there is

or may be the discharge of pollutants.

(4) The term “owner or operator” means any

person who owns, leases, operates, controls, or

supervises a source.

(5) The term “construction” means any placement,

assembly, or installation of facilities or equipment

56a

(including contractual obligations to purchase such

facilities or equipment) at the premises where such

equipment will be used, including preparation work

at such premises.

(b) Categories of sources; Federal standards of

performance for new sources

(1A) The Administrator shall, within ninety days

after October 18, 1972, publish (and from time to

time thereafter shall revise) a list of categories of

sources, which shall, at the minimum, include:

* * *

(B) As soon as practicable, but in no case more

than one year, after a category of sources is included

in a list under subparagraph (A) of this paragraph,

the Administrator shall propose and publish

regulations establishing Federal standards of

performance for new sources within such category.

The Administrator shall afford interested persons an

opportunity for written comment on such proposed

regulations. After considering such comments, he

shall promulgate, within one hundred and twenty

days after publication of such proposed regulations,

such standards with such adjustments as he deems

appropriate. The Administrator shall, from time to

time, as technology and alternatives change, revise

such standards following the procedure required by

this subsection for promulgation of such standards.

Standards of performance, or revisions thereof, shall

become effective upon promulgation. In establishing

or revising Federal standards of performance for new

sources under this section, the Administrator shall

take into consideration the cost of achieving such

effluent reduction, and any non-water quality,

environmental impact and energy requirements.

57a

(2) The Administrator may distinguish among

classes, types, and sizes within categories of new

sources for the purpose of establishing such

standards and shall consider the type of process

employed (including whether batch or continuous).

(3) The provisions of this section shall apply to any

new source owned or operated by the United States.

* x *

(d) Protection from more stringent standards

Notwithstanding any other provision of this

chapter, any point source the construction of which is

commenced after October 18, 1972, and which is so

constructed as to meet all applicable standards of

performance shall not be subject to any more

stringent standard of performance during a ten-year

period beginning on the date of completion of such

construction or during the period of depreciation or

amortization of such facility for the purposes of

section 167 or 169 (or both) of title 26 whichever

period ends first.

(e) Illegality of operation of new sources in violation

of applicable standards of performance

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.

58a

TITLE 33—NAVIGATION AND NAVIGABLE

WATERS

CHAPTER 26—-WATER POLLUTION PREVENTION

AND CONTROL

SUBCHAPTER IV—PERMITS AND LICENSES

Sec. 1342. National pollutant discharge elimination

system

(a) Permits for discharge of pollutants

(1) Except as provided in sections 1328 and 1344 of

this title, the Administrator may, after opportunity

for public hearing issue a permit for the discharge of

any pollutant, or combination of pollutants,

notwithstanding section 1311(a) of this title, upon

condition that such discharge will meet either (A) all

applicable requirements under sections 1311, 1312,

1316, 1317, 1318, and 1348 of this title, or (B) prior

to the taking of necessary implementing actions

relating to all such requirements, such conditions as

the Administrator determines are necessary to carry

out the provisions of this chapter.

59a

TITLE 33—NAVIGATION AND NAVIGABLE

WATERS

CHAPTER 26—WATER POLLUTION PREVENTION

AND CONTROL

SUBCHAPTER IV—PERMITS AND LICENSES

Sec. 1344. Permits for dredged or fill material

(a) Discharge into navigable waters at specified

disposal sites

The Secretary may issue permits, after notice and

opportunity for public hearings for the discharge of

dredged or fill material into the navigable waters at

specified disposal sites. Not later than the fifteenth

day after the date an applicant submits all the

information required to complete an application for a

permit under this subsection, the Secretary shall

publish the notice required by this subsection.

60a

TITLE 33—NAVIGATION AND NAVIGABLE

WATERS

CHAPTER II—CORPS OF ENGINEERS,

DEPARTMENT OF THE ARMY, DEPARTMENT OF

DEFENSE

PART 323—PERMITS FOR DISCHARGES OF

DREDGED OR FILL MATERIAL INTO WATERS OF

THE

Sec. 323.2 Definitions.

For the purpose of this part, the following terms

are defined:

eK

(e)(1) Except as specified in paragraph (e)(3) of this

section, the term fill material means material placed

in waters of the United States where the material

has the effect of:

(i) Replacing any portion of a water of the United

States with dry land; or

(ii) Changing the bottom elevation of any portion

of a water of the United States.

(2) Examples of such fill material include, but are

not limited to: rock, sand, soil, clay, plastics,

construction debris, wood chips, overburden from

mining or other excavation activities, and materials

used to create any structure or infrastructure in the

waters of the United States.

(3) The term fill materia! does not include trash or

garbage.

(f) 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 fill

that is necessary for the construction of any

6la

structure or infrastructure in a water of the United

States; the building of any structure, infrastructure,

or impoundment requiring rock, sand, dirt, or other

material for its construction; site-development fills

for recreational, industrial, commercial, residential,

or other uses; causeways or road fills; dams and

dikes; artificial islands; property protection and/or

reclamation devices such as riprap, groins, seawalls,

breakwaters, and revetments; beach nourishment;

levees; fill for structures such as sewage treatment

facilities, intake and outfall pipes associated with

power plants and subaqueous utility lines; placement

of fill material for construction or maintenance of

any liner, berm, or other infrastructure associated

with solid waste landfills; placement of overburden,

slurry, or tailings or similar mining-related

materials; and artificial reefs. The term does not

include plowing, cultivating, seeding and harvesting

for the production of food, fiber, and forest products

(See Sec. 323.4 for the definition of these terms). See

Sec. 323.3(c) concerning the regulation of the

placement of pilings in waters of the United States.