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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2009

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A03. Public record. Not legal advice.