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

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FILED

SEP 17 200

(2)

Ai) OFFICE OF THE CLERK

Supreme Coun. US

Ae 07-984 and 07: 990

eeieemmiten

IN THE

Supreme Court of the United States

COEUR ALASKA, INC.,

Petitioner,

Vv.

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,

Respondents.

STATE OF ALASKA

Petitioner,

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF FOR PETITIONER

COEUR ALASKA, INC,

ROBERT A. MAYNARD THEODORE B. OLSON

PERKINS COLE LLP Counsel of Record

251 East Front St. Ste. 400 MATTHEW D. MCGILL

Boise, ID 83702 AARON D. LINDSTROM

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, DC 20036

(202) 955-8500

Counsel for Petitioner Coeur Alaska, Inc.

LAunamR /.

QUESTION PRESENTED

Section 404 of the Clean Water Act authorizes

the U.S. Army Corps of Engineers to issue permits

for discharges of “fill material” provided that the dis-

charges comply with that section’s water-quality re-

quirements, which are jointly developed by the Corps

of Engineers and the Environmental Protection

Agency. 33 U.S.C. § 1344(a), (b)(1). By regulation,

the Corps of Engineers and EPA have jointly defined

“fill material” generally as any material that has the

net effect of raising the bottom elevation of a water of

the United States, including specifically “slurry, or

tailings or similar mining-related materials,” 33

C.F.R. § 323.2(e)-(f); 40 C.F.R. § 232.2.

In this case, the Ninth Circuit held that the

Corps of Engineers lacked authority under Section

404 to issue a permit for the discharge of fill material

whenever the discharge implicates any effluent re-

striction promulgated by EPA as part of its permit

program under Section 402 of the Act. On that basis,

the Ninth Circuit invalidated a Section 404 dis-

charge permit issued to Petitioner Coeur Alaska, Inc.

The quest»o: presented is whether the Ninth

Circuit erred in rejecting the expert agencies’ joint

interpretation of the Act that effluent restrictions

promulgated as part of EPA’s Section 402 permit

program do not apply to discharges of fill material

permitted by the Corps of Engineers under Section

404.

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

In addition to Southeast Alaska Conservation

Council, the Sierra Club and Lynn Canal Conserva-

tion were appellants in the court of appeals. In addi-

tion to Coeur Alaska, Inc. and to the State of Alaska,

which is the petitioner in No. 07-990, the following

parties (or their predecessors in office, see this

Court’s Rule 35.3) were appellees in the court of ap-

peals and are respondents in this Court pursuant to

this Court’s Rule 12.6: the United States Army

Corps of Engineers; Kevin J. Wilson, in his official

capacity as District Engineer; Michael Rabbe, in his

official capacity as Chief of the Regulatory Branch;

George S. Dunlop, in his official capacity as Principal

Deputy Assistant Secretary of the Army (Civil

Works); the United States Forest Service; and Gold-

belt, Inc.1

The corporate disclosure statement included in

Coeur Alaska’s petition for a writ of certiorari re-

mains accurate.

1 Kevin J. Wilson replaced Timothy J. Gallagher as District

Engineer, Michael Rabbe replaced Larry L. Reeder as Chief of

the Regulatory Branch, and George S. Dunlop replaced Dominic

Izzo as Principal Deputy Assistant Secretary of the Army (Civil

Works).

ill

TABLE OF CONTENTS

Page

I sh cenleeainiabidsieel 1

STATUTORY PROVISIONS AND

REGULATIONS INVOLVED ...............00c..ccccececceeeeeees 1

a easissestioininsiliniti 2

SUMMARY OF ARGUMENT. .......00.00.....00....ceeecceeee es 11

Pa a catenin iiicindiaeeaainielidiiipitintdiei 15

I. THE NINTH CIRCUIT'S HOLDING THAT

COEUR’S SECTION 404 DISCHARGE

PERMIT VIOLATES THE CLEAN WATER

AcT IS PLAINLY ERRONEOUS ................00000000- 15

A. The Corps Appropriately Issued A

Section 404 Permit To Coeur For

Its Discharge Of Fill Material............... 16

B. The Ninth Circuit Incorrectly Held

That The Corps’ Permit Violated

Sections 301 and 306 of the Clean

ET cadiancntisatsoniciidibindieiniiananieiadinnce 22

Il. THE NINTH CIRCUIT FERRED BY

REJECTING THE CORPS’ CONSTRUCTION

Se I a iccniibiitacessidaniousapoissescenenies 32

A. The Ninth Circuit Disregarded The

BS Ge FD Fe BI ren ccccccccececevcccccccese 33

B. The Regulatory History Confirms

That Effluent Restrictions Do Not

Apply To Discharges Of Fill

Material, Including Mine Tailings ........ 35

C. The Corps Has Long Regulated

Discharges Of Mine Tailings As Fill

ER REA RR RR Re ats Ue RI 39

TABLE OF CONTENTS—CONTINUED

Page

EE ES an OE SO TS TREE 44

APPENDIX: Relevant Provisions of the Clean

Water Act and Regulations Involved.....................6.. la

TABLE OF AUTHORITIES

Page(s)

Cases

Auer v. Robbins, 519 U.S. 452 (1997) 0.00... 32

Bates v. United States, 522 U.S. 23 (1997) .......00000... 27

Bowles v. Seminole Rock & Sand Co.,

eee 32, 33, 35

Chevron U.S.A. Inc. v. Echazabal,

SU, I i 43

EI. du Pont de Nemours & Co. v. Train,

Se ieintiiccicisesiaiesiitibapiisatiiainnaiaitieadiaa 23, 26

FDA v. Brown & Williamson Tobacco Corp.,

gg ERENT SRE peers sec Meira = 23

Fed. Express Corp. v. Holowecki,

| RENNES ONT en 34

Greenfield Mills, Inc. v. Macklin,

361 F.3d 934 (7th Cir. 2004).....................ceccseceees 24

HCSC-Laundry v. United States,

ee ee daiecisinsihinicceccenTiectnienncddiinisuaiieicnitelaiiuaas 28

John Hancock Mut. Life Ins. Co. v. Harris

Trust & Sav. Bank, 510 Uo. 86 (1993)......0........ 38

Kentuckians for the Commonwealth, Inc. v.

Rivenburgh, 317 F.3d 425 (4th Cir. 2003) .......... 24

Martin v. Occupational Safety & Health

Review Comm’n, 499 U.S. 144 (1991)... ee. 43

Nat'l Ass’n of Homebuilders v. Defenders of

Wildlife, 127 S. Ct. 2518 (2007)................secceseees 43

TABLE OF AUTHORITIES—CONTINUED

Page(s)

Nat'l Cable & Telecomms. Ass’n v. Gulf

Power Co., 534 U.S. 327 (2002) .................222- 13, 28

Officemax, Inc. v. United States,

428 F.3d 583 (6th Cir. 2005)...........0...000.000.ccccee ee 25

Perrine v. Chesapeake & Del. Canal Co..,

i semaansonsovenenees 25

Rapanos v. United States,

as cncnnmennnsnosonesueceons 24

Russello v. United States, 464 U.S. 16 (1983).......... 38

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

ER A Te 13, 27

Slodov v. United States, 436 U.S. 238 (1978)........... 25

Townsend v. Little, 109 U.S. 504 (1883)................... 28

Udall v. Tallman, 380 U.S. 1 (1965)............00..... ce 34

United Sav. Ass’n of Tex. v. Timbers of

Inwood Forest Assocs., Ltd.,

a cccnnnnmnsnonnnen 12

United States v. Fisk, 70 U.S. 445 (1866)................. 25

United States v. Locke, 471 U.S. 84 (1985)......... 14, 34

United States v. Riverside Bayview Homes,

GE | 38

Statutes

SE Bs i a 40

SE a 15

Se ED ivcsvcoscnsbscacsvacseesnuesssocesessoots 2, 15, 29

Vil

TABLE OF AUTHORITIES—CONTINUED

Page(s)

a: Or III iinssscsicicioniacsintcciidsiiinietpnnsnnnnnneiadaninidanall 2

EES T EPPO EAP REO 2, 13, 23

SE Tosi nnihcccdntnnidcimintcciipannnnieieiabeel passim

I a archeneiaialendlll 29

SENS ENE TN. cre 44

ce tai aan hlseibicaiehhetnneiialinia 2, 11,16

Ny HI sin sclicccasisidienioneccienvsibenniedens 2, 26, 29

| EOC en aE nee a men rentr 3

I Ts cciencenencitctaniiniesuibidaiibdaiianlainianal 2

I i i erin enncincntiinnbtngienetiniinioe 3, 27, 29

Be ee Oe I RIGID eceinccnsovesconiseoneiiccuiwenessiiniiiie 29

EEE ene EnD mT tr 3, 29

IAS Ane Ae ee eT na ETE 3

Regulations

TESTE CTT e NTL RL LITT TS 18

eee 17, 32, 35, 38

TIS ae ARS passim

TTT RO EAR OR RENN ROO SE HAL TTD 18

8 A ee Se ST 4,25, 43

hk ge RF OF | Lh | eae Cee 4,25

a) 18

8 Eee Cee LAIN eos 5,17

SN TI OIE cheprncienaineopsiecieadilaiaiianines 23

Vill

TABLE OF AUTHORITIES—CONTINUED

Page(s)

i siensiaeidiiieiiiddamianlal 42

a rE I onc cenccencctondessccnencsaennioadio’ 40, 41

ee i ae I Rivvcrsctscscccnctssccccctsscnctsorsssienns 40

Other Authorities

Coal Mining Point Source Category Effluent

Limitations Guidelines and New Source

Performance Standards,

50 Fed. Reg. 41,296 (1985).................ccccccseccseeseees 42

Environmental Permit Regulations,

48 Fed. Reg. 14,153 (1983)..................:sccccsccccccssceeee 4

Federal Water Pollution Control Act

Amendments of 1972,

Pub. L. No. 92-500, § 404, 86 Stat. 816............... 31

Final Revisions to the Clean Water Act

Regulatory Definitions of “Fill Material”

and “Discharge of Fill Material,”

67 Fed. Reg. 31,129 (2002)................ceeeeeeee passim

Bile Ss NE SRN REP OD accenesecsscsenscccccecocesecsosees 37, 40

Hearings on H.R. 11896 Before the

H. Comm. on Public Works,

ee i | |

Interim Final Rule for Regulatory Programs

of the Corps of Engineers,

47 Fed. Reg. 31,794 (1962).................ceccseceseees 41, 42

Ore Mining and Dressing Point Source

Category Effluent Limitations

Guidelines and New Source Performance

Standards, 47 Fed. Reg. 54,598 (1982) ............... 40

TABLE OF AUTHORITIES—CONTINUED

Page(s)

Proposed Revisions to the Clean Water Act

Regulatory Definitions of “Fill Material”

and “Discharge of Fill Material,”

65 Fed. Reg. 21,292 (2000)....................... 3, 4, 5, 37

Reissuance of Nationwide Permits,

72 Fed. Reg. 11,092 (2007)... eee eee eee 41

S. 2770, 92d Cong. § 402 (1971)... eeeeeeee 30

S. Rep. No. 92-1236 (1972) (Conf. Rep.) ................... 30

Senate Consideration of the Report of the

Conference Committee on Amendment of

the Federal Water Pollution Control Act

Neen io esdnenmennnds 31

Senate Debate on S. 2770 (Nov. 2, 1971) ................. 30

i aaa ueeuiaananminanl 1

BRIEF FOR PETITIONER

COEUR ALASKA, INC.

OPINIONS BELOW

The court of appeals’ opinion is reported at 486

F.3d 638. J.A. 517a. The order denying the petition

for rehearing en banc is unreported. Jd. 552a. The

court of appeals’ order granting respondents’ emer-

gency motion for an injunction pending the appeal is

unreported, id. 509a, as is its order denying Coeur

Alaska’s motion to vacate that injunction, id. 511a.

The opinion of the United States District Court for

the District of Alaska is also unreported. Jd. 478a.

JURISDICTION

The district court had jurisdiction over respon-

dents’ claims pursuant to 28 U.S.C. §1331. The

court of appeals had jurisdiction to review the dis-

trict court’s final judgment pursuant to 28 U.S.C.

§ 1291. The court of appeals filed its opinion on May

22, 2007, and it denied, on October 29, 2007, the

timely filed petition for rehearing en banc of Coeur

Alaska, Inc. (“Coeur”). Coeur’s petition for a writ of

certiorari was filed on January 28, 2008, and granted

on June 27, 2008, along with the related petition of

the State of Alaska. This Court’s jurisdiction rests

on 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS AND

REGULATIONS INVOLVED

The text of the pertinent provisions of the Clean

Water Act, 33 U.S.C. §§ 1257-1387, and the regula-

tions interpreting and administering the Act are set

out in an appendix to this brief, infra, at la. See S.

Ct. R. 24.1(f). The pertinent provisions are: 33

U.S.C. §§ 13811, 1316, 1342, and 1344; 33 C.F.R.

§ 323.2; and 40 C.F.R. §§ 122.3, 232.2, 401.11,

434.10, 440.102, and 440.104.

STATEMENT

1. Section 301 of the Clean Water Act broadly

prohibits the discharge of pollutants into navigable

waters of the United States “le]xcept as in compli-

ance with” certain of its provisions, including Sec-

tions 301, 306, 402, and 404. 33 U.S.C. § 1311(a).

Section 402 authorizes EPA to “issue a permit for the

discharge of any pollutant.” 33 U.S.C. § 1342(a)(1).

Discharges that fall under Section 402—also known

as the National Pollution Discharge Elimination Sys-

tem (“NPDES”) program—must meet “all applicable

requirements” under Sections 301, 306, and several

other provisions of the Clean Water Act. Jd. Section

301(e) requires compliance with “[e]ffluent limita-

tions” applicable to existing point sources, id.

§ 1311(e), while Section 306(e) applies more strin-

gent effluent restrictions, known as “standards of

performance,” io new point sources, id. § 1316(e).

These effluent restrictions are promulgated in the

form of regulations issued by EPA. The Section 402

NPDES permit scheme applies to all discharges into

the navigable waters “[e]xcept as provided in sec-

tion[] .. . [404].” 33 U.S.C. § 1342(a)(1).

Section 404 of the Clean Water Act entrusts to

the Corps of Engineers the authority to “issue per-

mits ... for the discharge of .. . fill material into the

navigable waters.” 33 U.S.C. § 1344(a); see also id.

§ 1344(d). Discharges of fill material governed by

Section 404 must satisfy water-quality requirements

(known as Section 404(b)(1) guidelines) developed by

EPA, in consultation with the Corps, under criteria

established by Congress. Id. § 1344(b) (cross-

referencing criteria in 33 U.S.C. § 1343(c)). More-

over, Section 404(c) provides an additional protection

for water quality by stating that EPA may veto any

permit the Corps proposes to grant. Id. § 1344(c).

Section 404 does not, however, require compliance

with effluent limitations or standards of performance

promulgated by EPA under its Section 402 NPDES

permit program. Indeed, the only references in Sec-

tion 404 to either Section 301 or Section 306 are two

provisions—Section 404(f) and Section 404(r)—that

state that certain discharges of fill material are “not

prohibited by or otherwise subject to regulation” un-

der Section 301, and another—Section 404(p)—that

states that compliance with a Section 404 discharge

permit “shall be deemed compliance” with Section

301. 33 U.S.C. § 1344(f), (p), (r). Section 306 is not

mentioned at all.

The division of labor Congress prescribed in Sec-

tions 402 and 404 makes sense. As EPA and the

Corps have explained, “[iJn keeping with the funda-

mental difference in the nature and effect of the dis-

charge that each program was intended by Congress

to address, sections 404 and 402 employ different

approaches to regulating the discharges to which

they apply.” Proposed Revisions to the Clean Water

Act Regulatory Definitions of “Fill Material” and

“Discharge of Fill Material,” 65 Fed. Reg. 21,292,

21,293 (Apr. 20, 2000). The Section 402 program fo-

cuses on “water quality standards for the receiving

water” and controls pollutant discharges “principally

through the imposition of effluent limitations, which

are restrictions on the ‘quantities, rates, and concen-

trations of chemical, physical, biological and other

constituents which are discharged from point sources

into navigable waters.” Jd. “Fill material,” on the

other hand, “differs fundamentally from the types of

pollutants covered by section 402 because the princi-

pal environmental concern is the loss of a portion of

the water body itself.” Jd. “The term ‘fill material’

clearly contemplates material that fills in a water

body.” Id.

Consistent with Congress’s intention to make

these permitting regimes mutually exclusive, see 33

U.S.C. § 1342(a) (“Except as provided in section[] . . .

[404)”), EPA has long provided that “[d]ischarges of

... fill material ... which are regulated under sec-

tion 404” “do not require [EPA] NPDES permits” un-

der Section 402 of the Act. 40 C.F.R. § 122.3(b)

(promulgated at Environmental Permit Regulations,

48 Fed. Reg. 14,153, 14,157—58 (Apr. 1, 1983)); see

also 40 C.F.R. § 125.4(d) (1973) (earlier regulation

providing that “fill material discharged into naviga-

ble waters” does “not require an NPDES permit”).

Both EPA and the Corps, moreover, have affirmed

that “EPA has never sought to regulate fill material

under effluent guidelines.” Final Revisions to the

Clean Water Act Regulatory Definitions of “Fill Ma-

terial” and “Discharge of Fill Material,” 67 Fed. Reg.

31,129, 31,135 (May 9, 2002).

Because the term “fill material” is not defined by

the Clean Water Act, these agencies, acting within

the discretion delegated to them by Congress, issued

a joint regulation (the “Fill Rule”) to “determine[] the

basic jurisdiction of the section 404 versus the sec-

tion 402 program.” Final Revisions, 67 Fed. Reg. at

31,133. EPA and the Corps chose to define the Fill

Rule’s “key jurisdictional terms” by using an “objec-

tive, effects-based test that ensures consistent

treatment of like discharges” and that “prevents un-

certainty for the regulated community as to what

regulatory program applies to particular discharges.”

Id.; see also Proposed Revisions, 65 Fed. Reg. at

21,293 (“Providing a clear and consistent definition

for the term ‘fill material’ ... is important in deter-

mining whether a proposed discharge of a pollutant

is subject to regulation under section 404 or section

402.”).

In the Fill Rule, the agencies defined “fill mate-

rial” as “material placed in waters of the United

States where the material has the effect of ...

[clhanging the bottom elevation of any portion of a

water of the United States.” 33 C.F-.R.

§ 323.2(e)(1)(ii); 40 C.F.R. § 232.2. The agencies fur-

ther provided that the term “discharge of fill mate-

rial” “generally includes ... placement of overbur-

den, slurry, or tailings or similar mining-related ma-

terials.” 33 C.F.R. § 323.2(f; 40 C.F.R. § 232.2.

The discharge at issue in this case is the place-

ment of mine tailings, transported as a slurry, into

Lower Slate Lake in southeastern Alaska, where, all

agree, the tailings would “raise the bottom elevation

of the lake by 50 feet.” J.A. 519a.

2. The Kensington Gold Mine is located about 45

miles north of Juneau, Alaska, at the site of a mine

previously operated from 1897 to 1928. Coeur’s plan

of operations for reinvigorating the mine provides for

conventional milling of ore on site through a “froth-

flotation” process that separates valuable ore from

the remaining minerals. Under this process, crushed

ore is fed into flotation tanks where air, conditioners,

and frothing agents cause gold-bearing minerals to

attach to air bubbles and float to the top of the tank.

The gold-bearing froth is then skimmed off and fur-

ther concentrated in additional flotation tanks. Most

of the chemicals added in the froth-flotation process

and most other metals naturally occurring in the

gold-bearing ore will be removed with the froth con-

centrate or will remain in the flotation tanks. J.A.

48la—82a, 191a.

The remaining tailings—finely ground, solid ma-

terial resembling wet sand, C.A. E.R. 771—will then

be removed from the flotation tanks and, after the

addition of settling agents that “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,” J.A. 482a n.15, transported in a slurry

form via a 3.5-mile pipe into a secure impoundment

in Lower Slate Lake. Over the 10- to 15-year life of

the project, the mill processing operations will yield a

great deal of valuable ore, but also several million

tons of mine tailings. Approximately 40 percent of

the tailings can be backfilled into the mine. /d. 520a.

Coeur proposed disposing of the remainder—up to

4.5 million tons—by placing them into a carefully de-

signed impoundment in Lower Slate Lake. Coeur

also developed a reclamation plan designed to restore

the lake’s fish population at the close of operations.

J.A. 249a. Because the largely solid mine tailings

constitute “fill material” (the tailings indisputably

would “[(cjJhang[e] the bottom elevation” of the lake,

33 C.F.R. § 323.2(e)(1)Gi)), Coeur sought a permit

from the Corps under Section 404.

The Corps thoroughly considered both Coeur’s

proposed discharge and several alternative methods

of tailings storage. After taking into account the in-

put of several other agencies (including Environ-

mental Impact Statements prepared by the Forest

Service in cooperation with the Corps, EPA, and the

1 “CA. E.R.” refers to the Excerpts of Record filed in the court

of appeals. “C.A. J.S.E.R.” refers to the Joint Supplemental Ex-

cerpts of Record also filed in the court of appeals.

Alaska Department of Natural Resources, and a Re-

cord of Decision by the Forest Service), the Corps ul-

timately approved the use of a tailings impoundment

in the Lower Slate Lake. The Corps’ Record of Deci-

sion concluded that the tailings impoundment was

“the least environmentally damaging practicable al-

ternative.” J.A. 366a. The Corps also determined

that the principal alternative proposal, storing the

mine tailings in a dry tailings facility, would be

“more damaging” than depositing them in Lower

Slate Lake because upland disposal would cause a

“permanent loss of wetland[s]” that would “out-

weigh(] the temporary losses to the lake.” Jd. Evalu-

ating Coeur’s proposed discharge, the Corps con-

cluded that it satisfied the Section 404(b)(1) water-

quality requirements promulgated by EPA in consul-

tation with the Corps. By granting the Section 404

permit, which incorporated numerous protective re-

quirements under Section 404(b)(1) guidelines, the

Corps authorized Coeur to discharge tailings into

Lower Slate Lake. Jd. 266a—86a.

The Alaska Department of Environmental Con-

servation certified that the proposal would comply

with Section 401 of the Act and with Alaska’s water-

quality standards. J.A. 368a. Recognizing the clear

fill effect of the tailings discharge into the Lower

Slate Lake impoundment, EPA concurred with the

Corps that Section 404 was the applicable permitting

regime, that, accordingly, Section 301 and Section

306 effluent restrictions did not apply, and that

Coeur’s proposed discharge satisfied EPA’s Section

404(b)(1) water-quality requirements. After review-

ing multiple analyses and working with the Corps to

resolve environmental concerns, EPA concurred in

the Corps’ issuance of the permit, declining to exer-

cise its ultimate veto authority under Section 404(c).

EPA also issued a Section 402 permit, incorporating

standards of performance promulgated under Section

306, to govern the subsequent discharge of effluent

from the lake impoundment into the small adjacent

creek leading to more substantial downstream wa-

ters. J.A. 287a, 292a, 317a.

3. Southeast Alaska Conservation Council, the

Sierra Club, and Lynn Canal Conservation (collec-

tively “SEACC”) sued the Corps of Engineers and the

Forest Service, arguing that the issuance of Coeur’s

Section 404 permit for the discharge of fill material

violated the Administrative Procedure Act, 5 U.S.C.

§ 706(2)(a), and Sections 301(a), 301(e), and 306(e) of

the Clean Water Act. SEACC relied on an EPA regu-

lation that states that “there shall be no discharge of

process wastewater to navigable waters from mills

that use the froth-flotation process .. . for the benefi-

ciation of copper, lead, zinc, gold, silver, or molybde-

num ores,” 40 C.F.R. § 440.104(b)(1), and argued that

this “no discharge” performance standard (promul-

gated under Section 306) precluded any disposal of

mine tailings under a Section 404 permit.

SEACC alternatively challenged the agencies’

construction of their own joint regulatory definition

of “fill material,” arguing that it was arbitrary and

capricious to construe the term “discharge of fill ma-

terial”—a term which the Fill Rule explicitly pro-

vides “includes ... placement of ... slurry, or tail-

ings or similar mining-related materials,” 33 C.F.R.

§ 323.2(f; 40 C.F.R. § 232.2—to include the proposed

Kensington mine tailings slurry. J.A. 475a J 72.

SEACC did not challenge the validity of the Fill Rule

itself or its definition of Section 404’s ambiguous

statutory term “fill material.” Rather, it rested its

argument on the contention that the Fill Rule could

not reasonably be interpreted to apply to Coeur’s

particular discharge of mine tailings.

After Coeur, the State of Alaska, and Goldbelt

intervened in defense of the Corps’ issuance of the

Section 404 permit, the district court granted the de-

fendants’ motion for summary judgment and upheld

the permit, holding that “[t]he Corps properly issued

the permit to Coeur Alaska, Inc. under § 404.” J.A.

495a. The district court recognized that the Clean

Water Act “divides the permitting process into two

segments” and that different standards apply under

Sections 402 and 404, id. 490a—91a; accordingly, the

district court concluded that “[ijf the permit was

properly issued under § 404, [the effluent limitations

of Sections 301(e) and the standards of performance

of 306(e)] are inapplicable,” id. 488a n.35. The dis-

trict court also rejected SEACC’s argument that

statements in the regulatory history rendered unrea-

sonable the agencies’ interpretation of their own Fill

Rule to permit a discharge that “facially falls within

the definition of ‘fill material’ contained in the regu-

lations.” Id. 492a.

4. The Ninth Circuit issued an emergency in-

junction pending appeal, J.A. 509a—10a, and thereaf-

ter reversed the judgment of the district court and

invalidated Coeur’s Section 404 permit. The court of

appeals concluded that the Corps, by issuing a per-

mit to Coeur for a discharge that “facially meets the

Corps’ current regulatory definition of ‘fill material,”

id. 526a, and that “facially qualiflies} for permitting

under § 404,” id. 531a, had nevertheless “violated the

Clean Water Act,” id. 550a.

The court of appeals purported to base its conclu-

sion on “the plain language of the Clean Water Act.”

J.A. 526a. The court contended that Section 301(a)

“prohibits all discharges of any pollutant ... except

when the discharge complies with the requirements

of, inter alia, § 301, § 306, § 402, and § 404.” ld.

527a—28a. Relying on Section’s 301’s “use of ‘and’ as

a connector,” the court concluded that “§ 301(a) pro-

hibits any discharge that does not comply with ...

both § 301 and § 306, as well as § 402 and § 404.” Id.

53la. Thus, the court concluded that “[i]Jf EPA has

adopted an effluent limitation or performance stan-

dard applicable to a relevant source of pollution,

§ 301 and § 306 preclude the use of a § 404 permit

scheme for that discharge.” Jd. 533a. “(T]he NPDES

program administered by EPA under § 402 is the

only appropriate permitting mechanism for [such]

discharges.” Id. 533a—34a.

The court also argued that the use of “all” and

“any” in Sections 301(e) and 306(e) meant that efflu-

ent restrictions promulgated by EPA applied to all

discharges, even those permitted by the Corps under

Section 404. J.A. 531a. The Ninth Circuit reached

that conclusion despite the fact that discharges per-

mitted by Section 404 must comply with a different

set of EPA water-quality standards—the Section

404(b)(1) guidelines.

The court also proffered an alternative holding

that, even though Coeur’s proposed discharge “fa-

cially meet(s] the definition of the term ‘fill mate-

rial,” J.A. 538a, the “regulatory history” nonetheless

demonstrated that the Corps had unreasonably in-

terpreted its own regulation as encompassing

Coeur’s discharge. Id. 535a. The regulation’s plain

langvage notwithstanding, the panel concluded that

the regulation must be interpreted to include “only

... those tailings and other mining-related materials

that are not subject to effluent limitations or stan-

dards of performance.” Id. 546a.

5. The court of appeals denied rehearing, J.A.

553a, but, on Coeur’s motion, stayed its mandate

pending review by this Court. Jd. 554a. After grant-

ing the stay, however, the court of appeals issued an-

other order, this time on SEACC’s motion, to require

Coeur, the Corps, and the Forest Service to prepare

and approve a reclamation plan by April 1, 2008. Jd.

555a.

SUMMARY OF ARGUMENT

Even though Section 404 of the Act broadly au-

thorizes the Corps of Engineers—and only the Corps

of Engineers—to issue permits “for the discharge of

... fill material,” 33 U.S.C. § 1344(a), and even

though the joint EPA-Corps Fill Rule—unchallenged

here—defines “fill material” generally as any mate-

rial that has the net effect of raising the bottom ele-

vation of a navigable water (including specifically

“slurry, or tailings or similar mining-related materi-

als,” 33 C.F.R. § 323.2(f)), the Ninth Circuit held that

the Corps lacks authority to issue a permit for the

discharge of fill material whenever the proposed dis-

charge implicates any of the hundreds of effluent re-

strictions promulgated by EPA. The Ninth Circuit

offered two alternative rationales for its conclusion,

and both are clearly erroneous.

I. The Ninth Circuit first held that, in issuing a

Section 404 permit to Coeur for the discharge of fill

material, the Corps contravened the text of the Clean

Water Act. On the Ninth Circuit’s view, the Act re-

quires that, if an EPA effluent restriction could con-

ceivably be applied to a discharge (even a discharge

of fill material), it may be permitted only under

EPA’s Section 402 NPDES program. Section 404,

however, gives the Corps a clear mandate and un-

ambiguous instructions with respect to the issuance

of permits for the discharge of fill material, and there

is no dispute here that the Corps followed the com-

mands of Section 404 to the letter. After the Corps,

EPA, the Forest Service, and several other federal

and state agencies reviewed the effects of Coeur’s

proposed discharge, the Corps applied EPA’s Section

404(b)(1) water-quality requirements and found

them satisfied. EPA concurred, finding no basis to

invoke its authority under Section 404(c) to veto the

Corps’ decision to issue an permit.

But Section 404 played no role whatsoever in the

Ninth Circuit’s analysis of the Corps’ permitting au-

thority. It instead concluded that, whatever the

Corps’ authority under Section 404, Section 301(a)

and Section 306(e) of the Act precluded the Corps

from issuing a permit for Coeur’s proposed discharge.

But statutory interpretation is a “holistic endeavor,”

United Sav. Ass’n of Tex. v. Timbers of Inwood Forest

Assocs., Ltd., 484 U.S. 365, 371 (1988), and the Ninth

Circuit’s construction of those two subsections cannot

be reconciled with the whole of the Clean Water Act.

The Ninth Circuit read Section 301(a) as requir-

ing—because it uses the word “and”—that every dis-

charge into jurisdictional waters comply with both

Section 301 and Section 306, as well as both Section

402 and Section 404. That reading of the conjunc-

tion, however, disregards the fact that it conjoins two

pairs of mutually exclusive provisions: Section 301

applies to existing sources, while Section 306 applies

only to new sources, and Section 404 applies only to

fill material, while Section 402 applies to “any pol-

lutant” “[e]xcept as provided in section[] ... [404].”

33 U.S.C. § 1342(a). In that statutory context, “and”

can be sensibly construed only as a disjunctive. The

Ninth Circuit seemed to admit as much when it

treated the Section 402 NPDES program and the

Corps’ Section 404 program as mutually exclusive

permitting alternatives.

The Ninth Circuit also contended that, because

EPA has promulgated a standard of performance ap-

plicable to froth-flotation mining operations, Section

306(e), which makes it “unlawful for any . . . 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), precluded the Corps

from permitting Coeur’s discharge of fill material.

Buried in the Ninth Circuit’s reasoning is an as-

sumption that effluent restrictions promulgated by

EPA under Section 301 and Section 306 apply to dis-

charges of fill material, but reading the statute as a

whole demonstrates that they do not. Section 404

specifically enumerates the water-quality require-

ments that apply to discharges of fill material and, in

vivid contrast to Section 402, does not require com-

pliance with EPA effluent restrictions. Congress’s

affirmative decision to impose different standards

under Sections 404 and 402 must be given effect. See

S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S.

370, 384 (2006). Moreover, if, as the Ninth Circuit

stated, Sections 301(e) and 306(e) are “blanket pro-

hibitions” that apply broadly and generally to “all”

and “any” discharges, and Section 404 is a “limited”

program that applies “only to dredged or fill mate-

rial,” J.A. 530a—32a, then, to the extent that the gen-

eral rules of Sections 301(e) and 306(e) conflict with

the specific rules of Section 404, Section 404’s spe-

cific rules would control. See Nat'l Cable & Tele-

comms. Ass’n v. Gulf Power Co., 534 U.S. 327, 335

(2002).

Il. Backstopping its tendentious reading of iso-

lated provisions of the Act, the Ninth Circuit held, in

the alternative, that the Corps unreasonably inter-

preted its own regulation when it concluded that

Coeur’s proposed discharge of mince tailings fell

within the regulatory definition of “fill material” set

out in the joint EPA-Corps Fill Rule. Although the

Ninth Circuit conceded that Coeur’s proposed place-

ment of tailings “facially meets” the Fill Rule’s defi-

nition of “fill material,” J.A. 526a, after reviewing the

“regulatory history” the Ninth Circuit concluded, the

text of the Fill Rule notwithstanding, that EPA and

the Corps did not intend to include within their defi-

nition of “fill material” discharges that otherwise

could be covered by an EPA effluent restriction. This

Court has held, however, that an agency’s construc-

tion that is consistent with plain statutory language

“simply cannot be found ‘sufficiently unreasonable’

as to be unacceptable,” United States v. Locke, 471

U.S. 84, 96 (1985), and this rule applies with even

greater force when, as here, the agency is interpret-

ing not a statute, but a regulation it wrote. And

while the text of the Fill Rule is dispositive of any

question concerning the reasonableness of the Corps’

application of the regulation to Coeur’s proposed dis-

charge, the regulatory history further demonstrates

that the Fill Rule applies to “any mining-related ma-

terial that has the effect of fill when discharged,” Fi-

nal Revisions, 67 Fed. Reg at 31,135 (emphasis

added), not, as the Ninth Circuit held, to “only ...

mining-related materials . . . not subject to effluent

limitations,” J.A. 546a (emphasis added). Indeed,

the relevant “history” is that “EPA has never sought

to regulate fill material under effluent guidelines.”

Final Revisions, 67 Fed. Reg. at 31,135 (emphasis

added).

In a case in which the validity of the Fill Rule

was unchallenged, the Ninth Circuit effectively re-

wrote the reguiation. It scrapped the jurisdictional

line drawn by Congress in Section 404(a)—and

clearly defined with objective criteria by the agencies

in the Fill Rule—and replaced it with its own policy:

an outright grant of primary jurisdiction to EPA, un-

der which EPA regulates whatever discharges it

chooses and the Corps regulates “fill material” only

to the extent that EPA chooses not to do so. That is

not what either Congress or the agencies intended.

The decision of the court of appeals should be re-

versed.

ARGUMENT

I. THe NINTH CIRCUIT’S HOLDING THAT

COEUR’S SECTION 404 DISCHARGE PERMIT

VIOLATES THE CLEAN WATER ACT IS

PLAINLY ERRONEOUS

The Clean Water Act protects the “chemical,

physical and biological integrity of the Nation’s wa-

ters” by permitting discharges into jurisdictional wa-

ters only if they comply with certain provisions of the

Act. 33 U.S.C. §§ 1251 & 1311(a). The expert agen-

cies tasked by Congress with applying the Act’s two

principal permitting regimes agree that the dis-

charge at issue in this case falls squarely within the

Section 404 program as a discharge of fill material.

That conclusion could be rejected only if it was “arbi-

trary, capricious, an abuse of discretion, or otherwise

not in accordance with law,” 5 U.S.C. § 706(2)(A),

and to reach that result the Ninth Circuit announced

an entirely novel construction of the Act: Effluent

restrictions applicable under Section 402’s general

NPDES permit program henceforth would also apply

to Section 404 permits, which govern specifically—

and only—discharges of fill material. The court’s de-

cision ignores the regulatory scheme of the Act, di-

vorces particular terms from their context, and reads

general provisions as trumping specific provisions.

The court’s decision cannot be reconciled with the

Act or this Court’s precedents.

A. The Corps Appropriately Issued A

Section 404 Permit To Coeur For Its

Discharge Of Fill Material

Section 404 of the Clean Water Act authorizes

the Corps of Engineers to “issue permits ... for the

discharge of ... fill material into the navigable wa-

ters at specified disposal sites.” 33 U.S.C. § 1344(a).

As the Ninth Circuit acknowledged, “(t]he Clean Wa-

ter Act does not define the term ‘fill material,” J.A.

538a, and therefore the Corps and EPA, the two

agencies responsible for the administration of the

Clean Water Act, jointly defined the term after notice

and comment. Neither SEACC nor the Ninth Circuit

disputes the agencies’ authority to interpret the un-

defined and ambiguous statutory term “fill material,”

nor do they dispute that the joint EPA-Corps defini-

tion of “fill material” is reasonable. J.A. 541a n.12

(explaining that because SEACC attacked only the

Corps’ application of its Fill Rule, and not the Fill

Rule itself, “we do not reach the issue of the validity

of these regulations”). As the agencies explained

when promulgating the Fill Rule, the definitions

provide an “objective effects-based test” that “deter-

mines the basic jurisdiction of the section 404 versus

the section 402 program,” “ensures consistent treat-

ment of like discharges,” and “prevents uncertainty

for the regulated community as to what regulatory

program applies to particular discharges.” Final Re-

visions, 67 Fed. Reg. at 31,133. Under this jurisdic-

tional division, “EPA has never sought to regulate fill

material under effluent guidelines.” Jd. at 31,135.

In their joint regulation, the agencies defined “fill

material” as “material placed in waters of the United

States where the material has the effect of ...

[clhanging the bottom elevation of any portion of a

water of the United States.” 33 C.F -.R.

§ 323.2(e)(1)Gii) (Corps); 40 C.F.R. § 232.2 (EPA).

They further defined “discharge of fill material” to

include “placement of overburden, slurry, or tailings

or similar mining-related materials.” 33 C.F.R.

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

The proposed discharge in this case falls

squarely within these definitions: The district court

noted that “it is uncontested that the slurry to be

discharged into Lower Slate Lake will ‘change the

bottom elevation’ of the lake,” J.A. 492a, and the

Ninth Circuit agreed that “[t]he discharge ... fa-

cially meets the Corps’ current regulatory definition

of ‘fill material’ because it would have the effect of

raising the bottom elevation of the lake,” id. 526a.

Indeed, the Ninth Circuit acknowledged that Coeur’s

proposed discharge of mine tailings will raise the

bottom elevation of Lower Slate Lake by 50 feet. Id.

519a.

Relying on Section 404 and on the Fill Rule’s rea-

sonable regulatory interpretation of that statute,

both of which grant primary jurisdiction over dis-

charges of fill material to the Corps, Coeur applied in

2001 to the Corps for a permit under Section 404 for

its proposed tailings discharge into Lower Slate

Lake, as part of an amended plan of operations for

the Kensington Mine Project. J.A. 210a. Although

the mine project had already undergone, in the

words of the Corps in 1998, “intense public and

agency scrutiny for eight years,” C.A. E.R. 255,

Coeur’s amended plan of operations and Section 404

permit application underwent another five years of

agency review.

According to Corps regulations, applications for

any type of permit from the Corps (including a Sec-

tion 404 permit) must undergo (1) a public interest

review; (2) an analysis of the proposal’s effect on wet-

lands, which may include review by the U.S. Fish

and Wildlife Service and the National Marine Fisher-

ies Service; (3) a fish and wildlife analysis; (4) a wa-

ter-quality review; (5) an evaluation of historic, cul-

tural, scenic, and recreational values; (6) a review of

other federal, state, or local requirements; (7) an

evaluation of the safety of impoundment structures;

(8) consideration of any environmental benefits from

the proposal; (9) a review of the proposal’s economic

impact; and (10) an analysis of any mitigating steps

taken by the permittee. 33 C.F.R. § 320.4; see also

id. § 323.6. In addition, applicants for a Section 404

permit must comply with the water-quality require-

ments of Section 404(b)(1), which address potential

impacts on the physical and chemical characteristics

of the aquatic ecosystem, on special aquatic sites (in-

cluding wetlands), and on human use and which con-

sider how to minimize any adverse effects from the

proposal. 40 C.F.R. pt. 230. Coeur’s amended plan

of operations satisfied all of these requirements.

The review of Coeur’s amended plan of opera-

tions began when the Forest Service, in cooperation

with the Corps, EPA, and the State of Alaska, held

public meetings and then prepared a Supplemental

Environmental Impact Statement (to update prior

statements prepared in 1992 and 1997). J.A. 210a—

lla, 228a—29a. The agencies made a draft of the

Environmental Impact Statement available for pub-

lic comment, and held additional public meetings to

discuss it. Jd. 230a. The Forest Service also pre-

pared a Record of Decision for the mining project,

addressing the Lower Slate Lake tailings facility and

other project components and environmental issues.

J.A. 207a—48a. The Corps conducted its own review

of the project, aided by these Environmental Impact

Statements, by the more than 900 individual reports

that, at a cost of $26 million, have examined the po-

tential environmental impact of the Kensington mine

project, C.A. J.S.E.R. 800, and by public comments,

including comments from public hearings in Alaska

about the proposed permit. J.A. 369a. In addition to

comments from the general! public, the Corps consid-

ered comments from EPA, the National Marine Fish-

eries Service, other agencies, and from SEACC, id.

369-—70a; see also C.A. J.S.E.R. 883, 888, 899. In re-

sponse to these comments, Coeur agreed to take ad-

ditional steps to protect water quality: For example,

Coeur agreed to construct a reverse osmosis treat-

ment facility for discharges from the lake impound-

ment into an outflowing creek and to use methods,

such as silt screens, to confine suspended particles

and turbidity to a small area in the lake. C.A.

J.S.E.R. at 878, 880; see also J.A. 276a, 280a.

Evaluating the proposed discharge under the

Section 404(b)(1) guidelines, the Corps determined

that the proposed discharge would not violate State

water-quality standards or toxic effluent standards

(under Section 307 of the Act) and would not jeopard-

ize endangered or threatened species or their critical

habitat; the Corps also concluded that the discharge

would not cause adverse impacts to human health or

welfare, to the diversity, productivity, and stability of

aquatic life and other wildlife or wildlife habitat, or

to recreational, aesthetic, and economic values. J.A.

384a—86a.

In accordance with Section 7 of the Endangered

Species Act, the National Marine Fisheries Service

reviewed the project, referring to the Forest Service’s

Supplemental Environmental Impact Statement, a

biological assessment, and other studies. C.A. E.R.

478. After consulting with the Corps and the Forest

Service, the Fisheries Service issued a Biological

Opinion concluding that the project was not likely to

jeopardize the continued existence of covered species

or to adversely modify designated critical habitat.

Id. The Alaska Department of Natural Resources

similarly concurred that the project was consistent

with the Alaska Coastal Management Plan. J.A.

369a. The Alaska Department of Environmental

Conservation issued a certificate that the project

would comply with Alaska’s water-quality standards

and program under Section 401 of the Act. Id. 368a.

Finally, in 2005, after Coeur submitted its final

plan of operations and also a reclamation and closure

plan, the Corps approved the Section 404 permit.

J.A. 266a, 249a. EPA also issued a Record of Deci-

sion and a Section 402 permit to govern discharges

from the tailings impoundment into downstream wa-

ters. J.A. 287a, 317a. In response to the initial filing

of this lawsuit, the Corps further evaluated the pro-

ject and, in 2006, issued a revised Record of Decision

and reissued the Section 404 permit, again conclud-

ing that Section 404 was the appropriate permitting

scheme and that its requirements had been satisfied.

J.A. 342a.

In short, numerous state and federal agencies

reviewed Coeur’s proposal and its expected effects,

see, e.g., J.A. 227a—28a, and Coeur met every re-

quirement imposed by Section 404 and every addi-

tional requirement of the Corps, EPA, and other

agencies participating in the permitting process.

Following this comprehensive review, the Corps

granted the Section 404 permit. J.A. 266a. As the

issuance of the permit demonstrates, both the Corps

and EPA agreed that the discharge of mine tailings

into Lower Slate Lake was a permissible discharge of

fill material under Section 404 of the Clean Water

Act. In this case, SEACC challenged none of these

agency findings except to contend that effluent re-

strictions promulgated by EPA under Sections 301

and 306 as part of its Section 402 permit program

apply to discharges of fill material governed by Sec-

tion 404 and, here, prohibit Coeur’s proposed dis-

posal of tailings.

2 The Ninth Circuit alleged that the agencies “consistently

informed Coeur Alaska that discharges from its froth-flotation

mill would not be regulated as fill material under § 404.” J.A.

546a. This erroneous version of the mine’s history is based on

three out-of-context quotations. First, the court cited a 1998

record of decision as stating that the Corps “does not regulate

the placement of tailings,” id. 547a; see also C.A. E.R. 257, but

it ignored the context: The proposal called for putting the tail-

ings in a dry tailings facility (i.e., on dry land), not in a water of

the United States. See C.A. E.R. 257. Second, the Ninth Cir-

cuit’s statement that EPA informed Coeur Alaska in 2005—

after the Section 404 permit was issued, J.A. 547a, 523a—that

the froth-flotation performance standard applies to the mine is

similarly off-point, td. 547a (citing a record of decision “for § 402

NPDES Permit”); see also J.A. 291a, for that statement applied

to “the proposed discharge from the tailings storage facility

(TSF) in Lower Slate Lake,” J.A. 292a (emphasis added), which

is subject to a separate Section 402 permit, not to the proposed

tailings discharge into Lower Slate Lake, which is the subject of

this case. Third, the court’s reliance on a statement by a dis-

trict engineer, J.A. 539a n.10, is misplaced because that memo-

[Footnote continued on next page}

B. The Ninth Circuit Incorrectly Held

That The Corps’ Permit Violated

Sections 301 and 306 of the Clean

Water Act

The Ninth Circuit held that the Corps’ issuance

of a discharge permit “violate|d] § 301 and § 306 of

the Clean Water Act.” J.A. 550a. The court of ap-

peals reached this holding first by reading the word

“and” in Section 301(a) to require compliance with

mutually exclusive provisions and then by reading

Sections 301(e) and 306(e) as applying even to dis-

charges of fill material governed by Section 404.

Thus, the Ninth Circuit concluded, the Corps lacks

authority to grant a permit for a discharge that fa-

cially qualifies as “fill material” under Section 404

whenever “EPA has adopted an effluent limitation or

performance standard applicable” to the discharge.

Id. 533a. The Ninth Circuit’s analysis, however, dis-

regarded the structure of the Act and eschewed well-

established rules of interpretation.

1. To demonstrate that EPA’s effluent restric-

tions apply to discharges of fill material, the Ninth

Circuit locked onto the word “and” in Section 301(a).

The court of appeals argued that “(t]he use of ‘and’ as

a connector, instead of ‘or,” in Section 301(a) “indi-

cates that Congress intended for effluent limitations

and standards of performance to apply to all applica-

ble discharges, even those that facially qualify for

[Footnote continued from previous page}

randum merely sought “to elevate to the Washington level” a

jurisdictional dispute, C.A. E.R. 176, and the response from

Washington directed that “the potential impacts of the dis-

charge of mine tailings must be considered[] within the context

of the section 404 permit evaluation,” C.A. J.S.E.R. 1062.

permitting under § 404.” J.A. 531a; see also id. 528a

(quoting Section 301(a) with emphasis on the word

“and”). Because of this “and,” every discharge, in the

Ninth Circuit’s view, must “comply with several

enumerated sections, including both § 301 and § 306,

as well as § 402 and § 404.” /d. 53la. But “liJt is a

‘fundamental canon of statutory construction that

the words of a statute must be read in their context

and with a view to their place in the overall statutory

scheme.” FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133 (2000). Here, the Ninth Cir-

cuit’s reading of the word “and” cannot be reconciled

with the whole of the Clean Water Act.

Context demonstrates that Section 301(a) cannot

be read to require that all discharges comply with

“both § 301 and § 306” and with their “effluent limi-

tations and standards of performance.” J.A. 53la.

The text of Section 306(e) states that only “new”

sources—not existing ones—need comply with stan-

dards of performance. 33 U.S.C. § 1316(e). As this

Court explained shortly after the passage of the

Clean Water Act, Section 306 provides for the estab-

lishment of “standards of performance for new

sources,” while “Section 301(b) defines the effluent

limitations that shall be achieved by existing point

sources.” E.J. du Pont de Nemours & Co. v. Train,

430 U.S. 112, 120-21 (1977) (emphases added). EPA

also interprets these provisions as applying only in

the alternative, clarifying in a regulation that efflu-

ent limitations under Section 301(e) apply only to

“point sources[] other than new sources.” 40 C.F.R.

§ 401.11(i) (emphasis added). In fact, even the Ninth

Circuit contradicted itself by recognizing that pollut-

ant discharges are “subject to an effluent limitation

under § 301 or a standard of performance under

§ 306.” J.A. 534a (emphasis added).

Nor does context permit the word “and” in Sec-

tion 301(a) to require, as the interpretation of the

Ninth Circuit suggests, that one must obtain permits

under both Section 402 and Section 404 for the same

discharge. The plain text of Section 402 makes clear

that it applies only when Section 404 does not. 33

U.S.C. § 1342(a)(1) (“Except as provided in ... (Sec-

tion 404]”). This Court recently recognized that Sec-

tion 402 and Section 404 are mutually exclusive

permitting schemes. See Rapanos v. United States,

547 U.S. 715, 744 (2006) (plurality opinion) (con-

trasting “pollutants normally covered by the permit-

ting requirement of [Section 402(a)]” with “dredged

or fill material” and explaining that “[t]he Act recog-

nizes this distinction by providing a separate permit-

ting program for such discharges in [Section

404(a)]”); id. at 760 (Kennedy, J., concurring) (“Apart

from dredged or fill material, pollutant discharges

require a permit from [EPA], which also oversees the

Corps’ ... permitting decisions.”) (emphasis added).

Numerous courts of appeals have similarly acknowl-

edged this mutual exclusivity. See, e.g., Greenfield

Mills, Inc. v. Macklin, 361 F.3d 934, 946 (7th Cir.

2004) (“|A] defendant who wishes to discharge a pol-

lutant must first obtain a permit either under [Sec-

tion 404] for the discharge of dredged or fill material

or under [Section 402] for other pollutants.”) (em-

phases added).

3 See also Kentuckians for the Commonwealth, Inc. ov.

Rivenburgh, 317 F.3d 425, 447 (4th Cir. 2003) (recognizing that

“cross-references, exclusions, and vetoes” interlocking Sections

404 and 402 “reinforcled) the fill-effluent distinction that has

been followed by the agencies”).

Both agencies charged with administering the

two permitting schemes agree that Section 301 re-

quires compliance with only “one of the two permit-

ting programs.” Final Revisions, 67 Fed. Reg. at

31,130. Indeed, since 1973, EPA has recognized that

“(djischarges of ... fill material ... which are regu-

lated under section 404” “do not require NPDES

permits.” 40 C.F.R. § 122.3(b); 40 C.F.R. § 125.4(d)

(1973). SEACC itself acknowledged below the mu-

tual exclusivity of these two sections. SEACC C.A.

Br. 24 (“The Act provides that a single discharge will

be governed by either section 402 or section 404, but

not both.”). And in the end, even the Ninth Circuit

could not accept the logical conclusion of its own

reading of “and”: It did not require that Coeur com-

ply with both “§ 402 and § 404,” J.A. 531a, but in-

stead held that “§ 402 is the only appropriate permit-

ting mechanism” for discharges subject to an effluent

limitation, id. 533-34a.

This Court has long recognized that “courts are

often compelled to construe ‘or’ as meaning ‘and,’ and

again ‘and’ as meaning ‘or.” United States v. Fisk,

70 U.S. 445, 447 (1866); see also Slodov v. United

States, 436 U.S. 238, 246-48 (1978) (interpreting

“and” as “or” to avoid a result “obviously at odds with

the statute’s purpose”). This is a corollary to the

more general rule that courts may not “take out of a

statute a single word susceptible of different mean-

ings{] and expound it without reference to the con-

text.” Perrine v. Chesapeake & Del. Canal Co., 50

U.S. 172, 190 (1850). When the word “and” “conjoins

a list of mutually exclusive alternatives,” “context

requires the term to be construed disjunctively.”

Officemax, Inc. v. United States, 428 F.3d 583, 591

(6th Cir. 2005) (Sutton, J.) (emphasis added).

Section 301(a) need not be construed to require

every discharge to comply with mutually exclusive

provisions—with Sections 301 and 306, and with

Sections 402 and 404. Indeed, the only sensible con-

struction of Section 301(a) is as a list of each of the

provisions of the Act that regulate discharges into

jurisdictional waters and a prohibition on discharges

“[e]xcept as in compliance with” those regulatory

provisions applicable to the particular discharge.

Accordingly, this Court in Du Pont did not consider

all sections listed in Section 301(a) as applicable to

the discharge of effluent then before the Court, but

instead considered only Sections 301, 306, and 402 as

“relevant to [the] case.” 430 U.S. at 119 (making no

mention of Section 404).

2. The Ninth Circuit’s conclusion that the Corps’

Section 404 permit violated Sections 301(e) and

306(e) of the Act is just as flawed, contravening both

the structure and the history of the Act.

a. The structure of the Act demonstrates that

Sections 301 and 306 do not apply to discharges

permitted under Section 404. Section 404 requires

compliance with Section 404(b)(1) water-quality re-

quirements, guidelines developed by EPA in consul-

tation with the Corps, based on criteria specifically

designated by Congress. See 33 U.S.C. § 1344(b) (re-

quiring EPA guidelines to be “based upon criteria

comparable to the criteria applicable . . . under [Sec-

tion 403(c) of the Act]”). Section 404 makes no men-

tion of Section 301(e)’s effluent limitations or of Sec-

tion 306(e)’s standards of performance. Instead, it is

Section 402 that requires that discharges of pollut-

ants meet “all applicable requirements under sec-

tions [301] ... [and 306].” Jd. § 1342(a)(1). Congress

affirmatively expressed its intent to impose different

requirements under the different permitting pro-

grams—compliance with Section 404(b)(1) guidelines

under Section 404, and compliance with effluent re-

strictions (including standards of performance) un-

der Section 402.

As this Court recently reiterated in another

Clean Water Act case, “if ‘Congress includes particu-

lar language in one section of a statute”—as Con-

gress did in Section 402, stating that Sections 301

and 306 apply under that section—“but omits [that

language] in another section of the same Act’”—as

Congress did in Section 404—“‘it is generally pre-

sumed that Congress acts intentionally and pur-

posely in the disparate inclusion or exclusion.” S.D.

Warren, 547 U.S. at 384 (quoting Bates v. United

States, 522 U.S. 23, 29-30 (1997)). If concluding that

Sections 301(e) and 306(e) do not apply under Sec-

tion 404 is, as the Ninth Circuit characterizes it, a

“negative inference,” J.A. 531a, it is a negative infer-

ence expressly approved by this Court when constru-

ing the Clean Water Act.4

Moreover, the specific provisions of Section 404

are properly construed as creating an exception to

the general obligations imposed by Sections 301(e)

4 The Ninth Circuit also thought Section 404(f) weighed

against finding an exception in Section 404 from the require-

ments of Sections 301 and 306 because Congress insisted “in

§ 404(f) that even the discharges from the enumerated activities

[for which there is an explicit exception] continue to be subject

to effluent standards.” J.A. 535a. Section 404(f), however,

makes no mention of the effluent limitations or performance

standards of Section 301(e) or Section 306(e), but instead spe-

cifically refers to a different set of standards—Section 307’s

“Toxic and pretreatment effluent standards,” 33 U.S.C.

§ 1317—that are not at issue in this litigation. See id. § 1344(f).

and 306(e). It is well-established that “specific statu-

tory language should control more general language

when there is a conflict between the two.” WNat’l

Cable, 534 U.S. at 335; see also Townsend v. Little,

109 U.S. 504, 512 (1883) (explaining the “well-settled

rule” that “general and specific provisions, in appar-

ent contradiction ..., may subsist together, the spe-

cific qualifying and supplying exceptions to the gen-

eral”). The Ninth Circuit went out of its way to em-

phasize the broad language of Sections 301(e) and

306(e), describing these sections as imposing “blan-

ket prohibitions” that apply to “all” and “any” dis-

charges. J.A. 53la-—32a. The court also specifically

observed that, in contrast, “the permit scheme under

§ 404 is a limited permit program that applies only to

dredged or fill material.” Jd. 530a—3la (emphases

added). The court even relied, when addressing the

allegedly conflicting regulations, on the canon of con-

struction that the specific controls the general. Id.

548a (describing it as a “basic principle” of interpre-

tation). The Ninth Circuit should have acknowl-

edged, therefore, that to the extent the general pro-

hibitions on discharges in Sections 301 and 306 ap-

pear to conflict with Section 404’s specific exception

that permits discharges of fill material as long as

they comply with the water-quality requirements of

Section 404(b)(1), Section 404 ought to control. See

HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981)

(“[I]t is a basic principle of statutory construction

that a specific statute ... controls over a general

provision ..., particularly when the two are interre-

lated and closely positioned, both in fact being parts

of” the same statutory scheme.).

Sections 404(p) and 402(k) confirm this reading

of the statute. These parallel provisions immunize

holders of Section 404 or Section 402 discharge per-

mits from enforcement actions and citizen suits

based on the permitted discharge, providing that

compliance with the terms of the discharge permit

“shall be deemed compliance” with substantive pro-

visions and restrictions imposed by the Clean Water

Act—but only the substantive provisions that apply

to each type of discharge. Section 404(p), on the one

hand, states that “[c]lompliance with a permit issued

pursuant to this section . . . shall be deemed compli-

ance ... with [Sections 301, 307, and 403].” 33

U.S.C. § 1344(p). Section 402(k), on the other hand,

provides that “(clompliance with a permit issued

pursuant to this section shall be deemed compliance

... with [Sections 301, 302, 306, 307, and 403)].” Id.

§ 1342(k) (emphasis added). Each of these provi-

sions, in other words, confirms that the holder of a

Clean Water Act permit, by complying with the per-

mit, is complying both with the general command of

Section 301(a) that “the discharge of any pollutant

... Shall be unlawful” without a permit, id. § 1311(a),

and with the specific requirements applicable under

the respective permit program. Compare id.

§ 1344(b), (, & (h)(1)(A) (showing that the Section

404(b)(1) guidelines and Sections 307 and 403 apply

under Section 404), with id. § 1342(a) (requiring that

Section 402 permits comply, “notwithstanding [Sec-

tion 301(a)],” with “all applicable requirements” of

Sections 301, 306, 307, and 403). Notably, Section

404(p) does not address requirements inapplicable

under Section 404 (such as Section 306), just as Sec-

tion 402(k) does not address requirements inapplica-

ble under Section 402 (such as the Section 404(b){1)

guidelines).

b. The legislative history confirms that Congress

intended for fill material to fall within the Corps’

domain. ‘lhe Senate bill originally proposed in 1972

to amend the existing Federal Water Control Act did

not include a Section 404 or any program addressing

discharges of fill material. See S. 2770, 92d Cong.

§§ 402-501 (1971). When an amendment containing

an early version of Section 404 (which addressed only

dredged material, not fill material) was proposed, the

bill’s sponsor, Senator Muskie, opposed it on the

ground that “[s]poil disposal is a pollutant” and that

anyone wishing to dispose of spoil in navigable wa-

ters should be required “to get a permit from EPA or

the State, just as would be required for other dis-

charges.” Senate Debate on S. 2770 (Nov. 2, 1971),

reprinted in 2 U.S. CONG., LEGISLATIVE HiSTORY OF

THE WATER POLLUTION CONTROL ACT AMENDMENTS

OF 1972, at 1388 (1972). Senator Muskie also ob-

jected that the proposed Section 404 would “shift the

environmental evaluation authority from EPA to the

Corps of Engineers.” Id.

While that amendment failed in the Senate, an

amendment proposed by the House included a Sec-

tion 404 that proposed “a separate permit program

for the discharge of dredged or fill material” and pro-

vided that “[t]his program would be administered by

the Secretary of the Army, acting through the Chief

of Engineers.” S. Rep. No. 92-1236, at 141 (Conf.

Rep.). The House version of Section 404, contrary to

Senator Muskie’s desire to have any and all dis-

charges regulated by EPA, in fact provided that the

Secretary of the Army “need not follow the designa-

tion of the [EPA] Administrator where the Secretary

certifies there is no economically feasible alternative

reasonably available.” See Hearings on H.R. 11896

Before the H. Comm. on Public Works, 92 Cong. 308

(1971). Because the then-acting EPA Administrator

“strongly oppose[d]” this version where permit graiits

would not be “subject to EPA review and concurrence

with respect to environmental considerations,” id.,

Section 404 was revised to provide EPA with a veto

over the grant of a Section 404 permit. Senate Con-

sideration of the Report of the Conference Committee

(1972), reprinted in 1 U.S. CONG., LEGISLATIVE

HISTORY OF THE WATER POLLUTION CONTROL ACT

AMENDMENTS OF 1972, at 177 (1972) (“the Conferees

agreed that the Administrator of the [EPA] should

have the veto”); see also 33 U.S.C. § 1344(c). But

even as Congress backed away from giving the Corps

exclusive authority over such discharges, Congress

retained the proposed Section 404 program adminis-

tered by the Corps, under guidelines developed by

EPA in consultation with the Corps. Federal Water

Pollution Control Act Amendments of 1972, Pub. L.

No. 92-500, § 404, 86 Stat. 816, 884.

* * &

The Ninth Circuit’s flawed construction of the

Clean Water Act results directly from its cart-before-

the-horse approach to statutory interpretation: The

court started with the proposition that the two regu-

lations potentially ;mplicated by the discharge—that

is, the froth-flotation effluent limitation and the

regulation defining “fill material”—conflicted intrac-

tably and then interpreted the Act in light of those

regulations. See, e.g., J.A. 525a—26a (“Two different

regulations contain plain language interpreting the

Clean Water Act that would appear to govern ...,

but they result in different interpretations of the

Act.”). If that were the law, then the promulgation of

an EPA regulation setting out a new effluent restric-

tions on the discharge of rock, sand, and dirt (para-

digmatic examples of fill material) could render

meaningless a statutory provision (Section 404) and

could negate Congress’s clear intention to create a

Corps-administered permit program for discharges of

fill material. Even without the EPA reaching that

far, on the Ninth Circuit’s view, the Section 404

permit program applies not to “fill material,” but

only to a residual subset of “fill material” not poten-

tially implicated by any of the hundreds of effluent

restrictions promulgated by EPA. See 40 C.F.R. sub-

chapter N, pts. 400—71. But that is not the line EPA

and the Corps drew in their notice-and-comment

rulemaking defining the statutory term—in an-

nouncing its effects-based definition, EPA made clear

that it “has never sought to regulate fill material un-

der effluent guidelines,” Final Revisions, 67 Fed.

Reg. at 31,135 (emphasis added)—and that line has

not been challenged in this litigation.

Il. THE NINTH CIRCUIT ERRED By REJECTING

THE CORPS’ CONSTRUCTION OF ITS OWN

RULE

It is well settled that a court must defer to an

agency's construction of its own regulation—it has

“controlling weight,” Bowles v. Seminole Rock &

Sand Co., 325 U.S. 410, 414 (1$45)—unless that in-

terpretation is “plainly erroneous or inconsistent

with the regulation.” Auer v. Robbins, 519 U.S. 452,

461 (1997). The joint EPA-Corps Fill Rule defines

“fill material” as “material placed in waters of the

United States where the material has the effect of

... [cJhanging the bottom elevation of any portion of

a water of the United States” and provides that a

“discharge of fill material” “includes . . . placement of

... Slurry, or tailings or similar mining-related ma-

terials,” 33 C.F_R. § 323.2(e)(1L)(ii) & (ff). Even while

admitting that the proposed mine tailings discharge

“facially meets the Corps’ current regulatory defini-

tion of ‘fill material’ because it would have the effect

of raising the bottom elevation of the lake,” J.A.

526a, the Ninth Circuit held that the Corps’ inter-

pretation was unreasonable because it was inconsis-

tent with the “regulatory history,” which it found

“dispositive.” Jd. 547a. Based on its reading of the

regulatory history, the Ninth Circuit ascribed to the

promulgating agencies an intent to apply their Fill

Rule to “only ... those tailings and other mining-

related materials that are not subject to effluent

limitations.” Jd. 546a (emphasis added). The Ninth

Circuit erred both in its methodology and its conclu-

sion. The Corps’ interpretation of its Fill Rule (with

which EPA concurred) was compelled by its text,

amply supported by its history, and consistent with

the Corps’ historical treatment of mine tailings.

A. The Ninth Circuit Disregarded The

Text Of The Fill Rule

The court of appeals began its regulatory analy-

sis with the history of the Fill Rule. By relying on

selected excerpts from the regulatory history, the

Ninth Circuit appears to have adopted the position

that an agency construction that is consistent with

the text of the regulation may nonetheless be rejected

as unreasonable if an examination of the regulatory

history demonstrates that the text does not accu-

rately reflect the agency’s regulatory intent. See J.A.

535a (“Although the plain language of the Clean Wa-

ter Act resolves the apparent regulatory conflict at

the heart of this case, the regulatory history further

demonstrates... .”).

This is clearly wrong. The starting point for

regulatory interpretation is the text itself—not the

regulatory history—and “if the meaning of the words

used is in doubt,” “a court must necessarily look to

the administrative construction of the regulation.”

Seminole Rock, 325 U.S. at 414. The “only tools,

therefore, are the plain words of the regulation and

any relevant interpretations of the [relevant

agency].” Jd. (emphasis added).

In United States v. Locke, 471 U.S. 84 (1985),

this Court explained that where statutory language

“is plain and the agency’s construction completely

consistent with that language, the agency’s construc-

tion simply cannot be found ‘sufficiently unreason-

able’ as to be unacceptable.” Jd. at 96. The analysis

of Locke applies with even greater force when, as

here, an agency is construing not a statute but its

own regulation; it is in that context that courts owe

maximum deference to an agency’s interpretation.

See Udall v. Tallman, 380 U.S. 1, 16 (1965) (explain-

ing that “this Court shows great deference to the in-

terpretation given [a] statute by the ... agency

charged with its administration” and that “[w]Jhen

the construction of an administrative regulation

rather than a statute is in issue, deference is even

more clearly in order”); see also Fed. Express Corp. v.

Holowecki, 128 S. Ct. 1147, 1155 (2008) (“Just as we

defer to an agency’s reasonable interpretations of the

statute when it issues regulations in the first in-

stance, the agency is entitled to further deference

when it adopts a reasonable interpretation of regula-

tions it has put in force.”) (citation omitted and em-

phasis added). Having conceded that the agencies’

construction “facially mects” the joint Fill Rule, J.A.

526a, the court of appeals had no authority to set

that interpretation aside. See Locke, 471 U.S. at 96.

Under Seminole Rock and Auer, the Ninth Cir-

cuit was required to interpret the Fill Rule by turn-

ing first to its text and then to the agencies’ interpre-

tation of their own regulation. The plain language of

the Fill Rule defined “fill material” as any material

that “[clhang[es] the bottom elevation of any portion

of a water of the United States” and defined “dis-

charge of fill material” to include “slurry, or tailings

or similar mining-related materials.” 33 C.F.R.

§ 323.2(e)(1)(ii) & (ff). The Corps’ issuance of a permit

for the proposed discharge of a mine tailings slurry

into Lower Slate Lake where it would have the effect

of “raisfing] the bottom elevation of the lake by 50

feet” is indisputably consistent with the Fill Rule’s

text. J.A. 519. The Ninth Circuit’s acknowledge-

ment that the proposed discharge “facially meets the

Corps’ current regulatory definition of ‘fiil material,”

J.A. 526a, therefore ought to have been both the be-

ginning and the ending of the court’s anaiysis.

B. The Regulatory History Confirms

That Effluent Restrictions Do Not

Apply To Discharges Of Fill Material,

Including Mine Tailings

To determine whether the agencies reasonably

could conclude that Coeur’s proposed discharge of

mine tailings was encompassed by the definition of

“fill material” set out in the Fill Rule, the Ninth Cir-

cuit did not need to—and therefore lacked the au-

thority to—look beyond the text of the Fill Rule it-

self. See Seminole Rock, 325 U.S. at 414. But even

the “regulatory history” confirms that the agencies

reasonably interpreted their regulation when they

concluded that Coeur’s proposed tailings slurry was

“slurry, or tailings or similar mining-related materi-

als” embraced within the definition of “discharge of

fill material.” 33 C.F.R. § 323.2(f.

The Ninth Circuit concluded that the Fill Rule

applies to “only ... tailings and other mining-related

materials .. . not subject to effluent limitations,” J.A.

546a (emphasis added), but the regulatory history

states that “[t]he language in today’s final rule will

clarify that any mining-related material that has the

effect of fill when discharged will be regulated as ‘fill

material.” Final Revisions, 67 Fed. Reg. at 31,135

(emphasis added). The Ninth Circuit quoted state-

ments in the regulatory history indicating that the

agencies “did not intend to change their longstanding

practice,” J.A. 542a, but ignored the agencies’ expla-

nation of what that practice was: The agencies con-

firmed that the rule would “maintain [their] existing

approach to regulating pollutants under either Sec-

tion 402 or 404,” that “[elffluent limitation guidelines

and new source performance standards ... are in-

corporated into permits issued under section 402 of

the Act,” that the Fill Rule would “not alter the

manner in which water quality standards currently

apply under the section 402 or the section 404 pro-

grams,” and that “EPA has never sought to regulate

fill material under effluent guidelines.” Final Revi-

sions, 67 Fed. Reg. at 31,135 (emphases added). The

agencies even specifically addressed the type of dis-

charge at issue here, noting that the words “slurry,

or tailings or similar mining-related material” were

added to the Fill Rule to “clarify that any mining-

related material that has the effect of fill when dis-

charged will be regulated as ‘fill material.” Jd. (em-

phasis added).

Statements the agencies made in 2002 when re-

sponding to comments on a draft version of the Fill

Rule further demonstrate the agencies’ longstanding

practice of applying effluent restrictions only under

Section 402, not Section 404, and of regulating min-

ing-related materials, such as tailings, under Section

404. The agencies noted that “mining by-products”—

such as tailings—“resulting from mining benefici-

ation or the processing of mined materials” “may

have a slightly different physical form from the tra-

ditional rock and soil used as fill material, but [they]

can have the same effect on the aquatic environment

as those materials.” J.A. 92a—93a. The agencies ac-

cordingly declared that where the discharge of min-

ing by-products “will result ...in...a change in the

bottom elevation,” it “clearly qualiflies] as ‘fill mate-

rial’ under this rule” and “will be regulated by the

Corps under section 404 of the Act.” Jd. 93a. This

statement echoes an earlier EPA statement, made in

1977 when EPA’s Acting Administrator testified in a

letter to Congress, that discharges of fill material

from mining operations were regulated under Section

404: “Where mining requires . . . in-stream sediment

control impoundments that involve discharges of ma-

terial into water, individual and general [Section

404] permitting procedures are applicable.” H. Rep.

No. 95-139, at 62 (1977) (testimony about Section

404 during consideration of 1977 amendments to the

Clean Water Act).

Indeed, when drafting the current Fill Rule, the

agencies specifically considered and rejected a provi-

sion that would have had the same effect as the

Ninth Circuit’s ruling. The proposed version of the

Fill Rule contained a provision that would have ex-

pressly excluded discharges governed by effluent re-

strictions from qualifying as fill material: “The term

fill material does not include discharges covered by

proposed or final effluent limitations guidelines and

standards ....” Proposed Revisions, 65 Fed. Reg. at

21,299. The agencies, however, deleted this provi-

sion from the final Fill Rule. Final Revisions, 67

Fed. Reg. at 31,135 (“|Tloday’s final rule also deletes

the exclusion contained in the proposal for dis-

charges covered by effluent limitation guidelines or

standards or NPDES permits.”). Rather than recog-

nizing this as evidence that the Fill Rule does not

contain the exclusion, see J.A. 544a—45a, the Ninth

Circuit reinserted that precise exclusion: “[T]he cur-

rent fill rule only applies to those tailings and other

mining-related materials that are not subject to ef-

fluent limitations or standards of performance.” Zd.

546a; compare id., with 33 C.F.R. § 323.2(e) & (f).

But it is the version of the rule that was actually

promulgated that controls, not the discarded draft.

In fact, in 1985 this Court reversed a court of appeals

that similarly rewrote a regulation defining a phrase

(“waters of the United States”) from the precise stat-

ute at issue here—Section 404 of the Clean Water

Act. In United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121 (1985), this Court noted that the

“history of the regulation underscore[d] the absence

of [a particular requirement]” and concluded that the

court of appeals, by “fashioning its own require-

ment,” “improperly reintroduced into the regulation

precisely what the Corps had excised.” Jd. at 130; cf.

John Hancock Mut. Life Ins. Co. v. Harris Trust &

Sav. Bank, 510 U.S. 86, 101 (1993) (“when Congress

deletes limiting language, ‘it may be presumed that

the limitation was not intended” (quoting Russello v.

United States, 464 U.S. 16, 23—24 (1983))).

Against all this, the Ninth Circuit latched onto

selected snippets from the regulatory history in order

to conclude that the “Corps’ application of the fill

rule in this case ... contradicts its interpretation at

the time the regulation was promulgated.” J.A.

536a. But the statements that the Ninth Circuit re-

lied on, see id. 542a—46a, support the court’s analysis

only if the agencies believed that mine tailings were

not fill material—an assumption that is clearly false,

see 33 C.F.R. § 323.2(f. Indeed, the statement that

the Ninth Circuit found particularly compelling—

that “if EPA has previously determined that certain

materials are subject to an (effluent limitation guide-

line] under specific circumstances, then that deter-

mination remains valid,” J.A. 545—46a (quoting J.A.

48a) (some emphasis removed)—does not state a

general rule, as the court would have it, that all min-

ing-related materials are subject to effluent restric-

tions even if they have the effect of fill. Quite the

contrary, it suggests only a limited exception to the

rule the agencies stated in the preceding sentence of

the regulatory history—that “the placement of ‘over-

burden, slurry, or tailings or similar mining-related

materials’ is considered a discharge of fill material”

and “is regulated under Section 404,” id. 48a. That

limited exception applies, as the agencies expressly

noted, only in “specific circumstances” (for example,

to effluent discharges from tailings impoundments or

other settling ponds, or when EPA vetoes a Section

404 permit), not across the board.

C. The Corps Has Long Regulated

Discharges Of Mine Tailings As Fill

Material

SEACC, seeking to portray this case as “a one-

time departure from long established practice,” has

contended that from 1982 “until 2005, the Corps

never issued a single permit to discharge process

wastewater from a froth-flotation mill—or from any

other source subject to EPA effluent limitations—

into navigable waters.” SEACC Opp. to Cert. Pet. 1-

2. To the contrary, the Corps (in conjunction with

EPA) has repeatedly, as the following examples from

the 1980s, 1990s, and 2000s show, authorized Sec-

tion 404 permits for mine tailings even when an EPA

effluent limitation existed that could have applied—

had the discharge not qualified as fill material—

because of the processes used at the mines.

The Corps’ interpretation of the Fill Rule is con-

sistent with longstanding practices concerning the

disposal of mine tailings, practices that have created

settled expectations in the regulated community. As

early as 1886, Congress directed that “the Secretary

of the Army” may authorize “deposits of debris of

mines” in navigable waters “where harbor-lines have

not been established.” 33 U.S.C. §407a. And in

1977, as noted earlier, EPA’s Acting Administrator

testified to Congress that discharges of fill material

from mining operations were regulated under Sec-

tion 404: “Where mining requires ... in-stream

sediment control impoundments that involve dis-

charges of material into water, individual and gen-

eral [Section 404] permitting procedures are applica-

ble.” H. Rep. No. 95-139, at 62.

The Red Dog Mine in northwest Alaska—the

largest zinc mine in the world—is an open-pit mine

that uses a froth-flotation process to produce lead

and zinc. C.A. J.S.E.R. 836. Since 1982, two effluent

restrictions—one of which is the froth-flotation stan-

dard of performance at issue here—have beer in

place and could have been applied to the mine. See

40 C.F.R. § 440.102(a) (promulgated at Ore Mining

and Dressing Point Source Category Effluent Limita-

tions Guidelines and New Source Performance Stan-

dards, 47 Fed. Reg. 54,598, 54617-—18 (Dec. 3, 1982))

(effluent limitation for “mine drainage” for mines us-

ing “open-pit ... operations”); id. § 440.104(b)(1)

(promulgated at 47 Fed. Reg. at 54,619) (perform-

ance standard for “mills that use the froth-flotation

process”). In its Final Environmental Impact State-

ment for the Red Dog Mine, EPA explained that a

“(thickened tailings slurry from the mill concentrat-

ing process” would be fed “into the tailings pond.”

C.A. J.S.E.R. 1097. Despite the presence of effluent

réstrictions relating to the mill source and despite

observing that “the liquid portion” of the slurry “from

the mill concentrating process” would “consist[] of

excess process water,” id. (emphasis added), the

Corps granted a Section 404 permit in 1985 that au-

thorized, to quote the permit itself, the discharge of

“mine tailings in the south fork of Red Dog Creek,”

id. 979 (emphasis added).

The Fort Knox Mine is “an open pit gold mine

near Fairbanks, Alaska.” C.A. J.S.E.R. 983. The ef-

fluent limitation for open-pit mining mentioned

above also applied to “mine drainage from mines,”

such as the Fort Knox Mine, “operated to obtain .. .

gold bearing ores.” 40 C.F.R. § 440.102(a). Despite

the potentially applicable effluent limitation, the

Corps in 1994 granted a Section 404 permit to the

mine for the discharge of approximately 4.5 million

cubic yards of “fill material into approximately 103

acres of waters of the United States” for a tailings

impoundment. C.A. J.S.E.R. 983—86, 989; see also id.

985 (referring, in the conditions section of the per-

mit, to the discharge of “tailings into the tailings im-

poundment”).

Over the last twenty years, the Corps has also

repeatedly reauthorized a nationwide permit for coal

mining notwithstanding the existence of a related

effluent restriction. In 1982, the Corps issued Na-

tionwide Permit No. 21, which authorizes “dis-

charges associated with surface coal mining activi-

ties.” Interim Final Rule for Regulatory Programs of

the Corps of Engineers, 47 Fed. Reg. 31,794, 31,833

(July 22, 1982). The Corps has continued reauthoriz-

ing this national Section 404 permit since 1982, see,

e.g., Reissuance of Nationwide Permits, 72 Fed. Reg.

11,092, 11,184 (Mar. 12, 2007), despite the fact that

effluent restrictions have existed since 1985 for “dis-

charges from any coal mine at which the extraction

of coal is taking place or is planned to be undertaken

and to coal preparation plants and associated area,”

40 C.F.R. § 434.10 (promulgated at Coal Mining

Point Source Category Effluent Limitations Guide-

lines and New Source Performance Standards, 50

Fed. Reg. 41,296, 41,305 (Oct. 9, 1985)). This na-

tionwide permit authorizes discharges when “the dis-

trict engineer makes a determination that the indi-

vidual and cumulative adverse effects on the envi-

ronment from such ... discharges are minimal.” In-

terim Final Rule, 47 Fed. Reg. at 31,833.

These examples demonstrate that for the past 23

years, the Corps has repeatedly authorized (and EPA

has not vetoed) Section 404 permits for miming-

related discharges when effluent restrictiom ex-

isted—including the very performance stander at

issue here—that could have been applied te the dis-

charges. The agencies granted these Seetiem 404

permits even in instances when “process water” was

mixed in with the tailings. C.A. J.S.E.R. 1097. In-

deed, an EPA memorandum written in 2004 to ex-

plain its regulatory approach to discharges of mine

tailings used the Kensington mine as an example of

how to apply the Fill Rule “to other comparable min-

ing proposals.” J.A. 142a n.1 (entitled “Clean Water

Act Regulation of Mine Tailings”). The “Mine Tail-

ings” memorandum states that EPA “believe[s] that

the text of the rule makes clear that mine tailings

placed into impounded waters of the U.S., as pro-

posed by the Kensington mine project, are regulated

under section 404 of the CWA as a discharge of fill

material.” Jd. 144a. In fact, the “Mine Tailings”

memorandum expressly recognized that “the regula-

tory regime applicable to discharges under section

402, including effluent limitation guidelines and

standards, such as those applicable to gold ore min-

ing (see 40 C.F.R. pt. 440, subpt. J), doles] not apply

to the placement of tailings into the proposed im-

poundment.” Id. 144a-45a (citing 40 C.F.R.

§ 122.3(b) (“Discharges of ... fill material ... which

are regulated under section 404” “do not require

(EPA] NPDES permits.”)). As EPA wrote in promul-

gating the Fill Rule, “EPA has never sought to regu-

late fill material under effluent guidelines.” Final

Revisions, 67 Fed. Reg. at 31,135 (emphasis added).

* * *

The court of appeals’ refusal to defer to the agen-

wrested from the Corps and EPA the authority Con-

gress delegated them to draw the line separating dis-

charges of fill material from discharges of all other

pollutants. See Martin v. Occupational Safety &

Health Review Comm’n, 499 U.S. 144, 151 (1991)

(“[T}the power authoritatively to interpret its own

regulations is a component of [an] agency’s delegated

lawmaking powers.”). By substituting its policy

preferences for those of the agencies charged with

administering the Clean Water Act, the Ninth Cir-

cuit contravened this Court’s guidance that Congress

expects agencies’ to make “substantive choices” when

it “leaves the intersection of competing objectives .. .

imprecisely marked.” Chevron U.S.A. Inc. v.

Echazabal, 536 U.S. 73, 85 (2002); see also Nat’!

Ass'n of Homebuilders v. Defenders of Wildlife, 127 S.

Ct. 2518, 2534 (2007) (agency interpretations that

resolve “fundamental ambiguitlies]” resulting from

“differing mandates” in statutory texts by developing

a “reasonable interpretation’ of the statutory

scheme” are “entitled to deference”). And even aside

from the Ninth Circuit’s lack of authority to make

such policy judgments, there is no reason to think

that the Ninth Circuit is better equipped than Con-

gress, EPA, or the Corps—let alone all three—to de-

cide how to balance interests in protecting the envi-

ronment against interests in using natural resources,

including “economic values” and “mineral exploita-

tion.” 33 U.S.C. § 1343(c) (setting out guidelines

cross-referenced in Section 404(b)(1)).

CONCLUSION

The Ninth Circuit erred at each step of the way.

Ignoring the structure and history of the statute, the

court read the word “and” to require compliance with

mutually exclusive provisions. It discounted the fact

that Congress specifically enumerated different re-

quirements and permitted general statutory provi-

sions to trump specific ones. Refusing to defer to the

agencies’ construction of a regulation they drafted

jointly, the court of appeals also made no attempt to

reconcile its interpretation with the plain text of the

Fill Rule. Instead, it searched the regulatory history

for scattered phrases that could be construed to sup-

port SEACC’s position, mischaracterized the ap-

proach consistently taken by the agencies for dec-

ades, and then wrote into the Fill Rule an exception

the agencies specifically rejected.

The judgment of the court of appeals should be

reversed and the case should be remanded to the

court of appeals with instructions to vacate immedi-

ately the injunction pending appeal and to affirm the

judgment of the district court.

Respectfully submitted.

ROBERT A. MAYNARD THEODORE B. OLSON

PERKINS COIE LLP Counsel of Record

251 East Front St. Ste. 400 MATTHEW D. MCGILL

Boise, 1D 83702 AARON D. LINDSTROM

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, DC 20036

(202) 955-8500

Counsel for Petitioner Coeur Alaska, Inc.

September 17, 2008

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.