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

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Nos-@7-984 and 07-990

IN THE

Supreme Court of the United States

COEUR ALASKA, INC.,

Petitioner,

Vv.

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,

Respondents.

STATE OF ALASKA

Petitioner,

Vv.

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

REPLY BRIEF FOR PETITIONER

COEUR ALASKA, INC.

ROBERT A. MAYNARD THEODORE B. OLSON

PERKINS COIE LLP Counsel of Record

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

Boise, ID 83702 AARON D. LINDSTROM

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, DC 20036

(202) 955-8500

Counsel for Petitioner Coeur Alaska, Inc.

rte tteeil

hyTy UUZKREH

D oT ~2272R

By

RULE 29.6 STATEMENT

The corporate disclosure statement included in

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

mains accurate.

il

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF

TTT siciinicibcnnstsitidigsianintiitianintiiiniiiniammeseisinseanes 1

I. COEUR’S TAILINGS SLURRY INDISPUTABLY

Is “FILL MATERIAL” WITHIN THE

MEANING OF THE FILL RULE........................... 6

Il. THE CLEAN WATER ACT AUTHORIZES THE

CORPS TO PERMIT THIS DISCHARGE .............. 12

A. The Text, Structure, And History Of

The Clean Water Act Demonstrate

That EPA Performance Standards

Do Not Apply To Discharges Of Fill

RASTER Se REA a ee ee 13

B. EPA’s Interpretation Of Its

Performance Standard Resolves Any

Question Whether The Corps’

Section 404 Permit Would Violate

te a a 20

Ill. THE CORPS’ RIGOROUS SECTION 404

PERMITTING PROCESS ENSURED THAT

THE KENSINGTON’ TAILINGS PLAN

RESPECTS ENVIRONMENTAL VALUEBS............. 23

I inntenipiinncsethipbiidinlalmediiedtdeninianibinisiawenitids 28

ili

TABLE OF AUTHORITIES

Page(s)

Cases

Auer v. Robbins, 519 U.S. 452 (1997) ......00.00.0e. 22

Bowles v. Seminole Rock & Sand Co.,

I as ssmecennsnn 4,6

Chem. Mfrs. Ass’n v. Natural Res. Def.

RE Ba | ees 5

Chevron, U.S.A. v. Natural Res. Def.

Council, 467 U.S. 837 (1984) ..................... 4, 14,19

Ford Motor Credit Co. v. Milhollin,

I csetinnsielonlibn 14

Hazardous Waste Treatment Council v.

Reilly, 938 F.2d 1390 (D.C. Cir. 1991) .................. 3

HCSC-Laundry v. United States,

I lll 20

Kalur v. Resor, 335 F. Supp. 1 (D.D.C. 1971)........... 18

LaRouche v. FEC,

eg | 3

Long Island Care at Home, Ltd. v. Coke,

gg oe RL. 5 Ren ee: 9, 22

Reserve Mining Co. v. EPA,

ee ee I Ee BP vccenttnnsctscccsccdcesacscccces 17

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

a cali 16

U.S. Postal Serv. v. Gregory,

al 22

iv

TABLE OF AUTHORITIES—CONTINUED

Page(s)

United States v. Locke,

I iicciescieiichiientaianiesiiptiiihiniidonibeniaaiieel 6

United States v. Riverside Bayview Homes,

I acetals 10

Statutes

ii cnleceasciicaineecbiitiisa 2, 13, 21

a aia asa cteaiisatrianstuniiiniibitusitiddadisinl 17

a I es siihcliiobiphigibilaigieaeeiniicaiibeciialaaaaila 14

ike sls cednieeianiiniiennapihaianeels 6,15

ee Pes TF BEEP scccicssoscsecsseses ydiiibitilieainenaedinaieiiasanbialile 16

i oaiatinceniinincdiompinihinnisaniainconbiiinia 15, 17

I i iiainctanssrdnicschicidiniptaibciimeninnpnlimiliaiit 15

dina insaidesdein dieciiniccchedibuinabapiabendadialll 18

te eee eS 15

I I i ciicifasiieisiciitciemindaiastisidies inbensseaiil 28

EI a ae Ee Ta 16

EE 15

Regulations

SE eee eae a= 19

I on tnsss sa nduseanneneentiintnnnnddsepenniies 3, 6, 10

EN eee ae i 23

te cancers anlilel 8,9

I I hoa da nccceiliciomiientnnendibsuaneoniiiouten 16

Vv

TABLE OF AUTHORITIES—CONTINUED

Page(s)

SGA ee 0 ED cevisccesccnsctacsinsnisicicictinmaaaeae 18

re Oe I sccccissesncvasinxesorcsenetniiaiinnmaniaae 18

ee I erctcesecuniccenssexioressnticiinsiiiianciinunaile 3

A ID sven criccnnceteseestsciniitninmeamainmaian 1

a 5, 25

Other Authorities

118 Comm, Bec. BB, 765 CIDTS) .ccccscsccccscessccscccccseee 17, 18

Central Park Conservancy, Reservoir, at

http://www.centralpark.com/pages/

SECTACTIOMATORST VON THOME occccccccccccsccsseccscccscesscnces 24

Final Revisions to the Clean Water Act

Regulatory Definitions of “Fill Material”

and “Discharge of Fill Material,” 67 Fed.

Be Bec Ce icecsiniiiainsessehcttassindineendapenaciaivd passim

Hearing on Clean Water Act Definition of

Fill Before the Subcomm. on Clean Air,

Wetlands, and Climate Change of the S.

Committee on the Environment and

IS CLE RENE toe LAS ROT MRS SE 7

NATIONAL PARKS SERVICE, HISTORIC

AMERICAN BUILDING SURVEY,

PHOTOGRAPHS: WRITTEN HISTORICAL

DESCRIPTIVE DATA, WEST POTOMAC PARK

Press Release, Sierra Club, Bush

Administration Allows Waste Dumping

in America’s Rivers and Streams (May 3,

ITED <cudcitsonisseascnsinddnnnsihcnsaniadaaiammnn aaa ran 7

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TABLE OF AUTHORITIES—CONTINUED

Page(s)

The Pentagon - Facts & Figures......................cceeeeees 27

Water Pollution Control; Memorandum of

Agreement on Solid Waste 51 Fed. Reg.

i enedesnocenonnciia 9

REPLY BRIEF FOR PETITIONER

COEUR ALASKA, INC.

INTRODUCTION AND

SUMMARY OF ARGUMENT

SEACC’s defense of the Ninth Circuit’s decision

is, for the most part, an exercise in misdirection. It

fails to provide any persuasive rationale for the

Ninth Circuit’s invalidation of the Section 404 permit

issued to Coeur Alaska by the Corps of Engineers in

accordance with the directives of Section 404 and its

implementing “Fill Rule.”

SEACC begins with a blatantly misleading de-

scription of Coeur Alaska’s proposed tailings dis-

charge, suggesting that Coeur’s proposed tailings

slurry might pollute the impounded aquatic envi-

ronment with metals or even cyanide. SEACC Br. 3-

4. Yet, the Corps’ record of decision reveals that

“(tlhere will be no cyanide ... added to the milling

circuit,” that “the tailings will not be a generator of

acid or heavy metals,” and, indeed, that “the alumi-

num concentrates in the tailings [are] less than that

in the lake sediment.” J.A. 360a—6la (emphasis

added).

It then resorts to word games. Even though it

was happy enough to refer to Coeur’s proposed dis-

charge as “mine tailings” in its complaint, e.g., J.A.

460a J 2, SEACC now foists on this tailings slurry

the unwieldy label, “process wastewater contain|ing]

significant quantities of suspended solids,” SEACC

Br. 2. But it is absurd to speak of a discharge that is

55% solid by weight in terms of “suspended solids.”

EPA measures “suspended solids” in milligrams per

liter. 40 C.F.R. § 440.104(a) (limiting total sus-

pended solids in drainage from gold mines to 20

2

mg/L). According to the Ninth Circuit (J.A. 519),

Coeur’s mostly solid tailings slurry contains 1.64

kilograms of “suspended solids” per liter, a substance

several orders of magnitude more “solid” than envi-

sioned by EPA’s performance standards. Whatever

label SEACC might place upon it, no one disputes

that Coeur’s tailings slurry will raise the bottom ele-

vation of Lower Slate Lake by 50 feet.

Finally, SEACC suggests that Coeur’s diligent

pursuit of a Section 404 permit masks an attempt “to

escape EPA effluent limitations.” SEACC Br. 44.

But far from “escap[ing] EPA effluent limitations,”

Coeur sought and received from EPA a Section 402

permit limiting discharges of effluent from its tailing

impoundment into downstream waters. J.A. 317a.

SEACC simply refuses to come to grips with the fact

that EPA has never regulated discharges of mine

tailings into impounded waters of the United States.

When the subterfuge is stripped away, there is

left just one legal question: Whether, by issuing a

Section 404 permit in accordance with the plain lan-

guage of the Fill Rule’s definitions of “fill material”

and “discharge of fill material,” the Corps acted in a

manner that is “arbitrary, capricious, [or] not in ac-

cordance with law.” 5 U.S.C. § 706(2). Though the

Ninth Circuit perceived no challenge to the “validity

of these regulations,” J.A. 54la n.12, SEACC does. It

maintains that it has challenged the Fill Rule, as “in-

terpreted” by the Corps, all along. SEACC Br. 17;

see also SEACC’s C.A. Resp. to Pets. for Reh’g En

Banc 12 (“SEACC does not challenge this regulation

(unless it is misinterpreted to conflict with the Clean

Water Act)”).

It is not immediately clear that administrative

law embraces an “as interpreted” challenge to a regu-

3

lation where, as here, that regulation is conceded to

be a facially valid interpretation of the underlying

statute. See LaRouche v. FEC, 28 F.3d 137, 141

(D.C. Cir. 1994) (“There is a one-word response to

these arguments: ‘Chevron.”). Nor is it clear that

such a challenge differs in any meaningful respect

from a challenge to the agency’s interpretation of its

regulation simpliciter. See Hazardous Waste Treat-

ment Council v. Reilly, 938 F.2d 1390, 1395 (D.C.

Cir. 1991) (suggesting that an agency’s interpreta-

tion of its own regulation “must also meet the test of

consistency with the underlying statute”). Regard-

less, SEACC’s challenge plainly fails on its own

terms.

In analyzing SEACC’s “as interpreted” challenge

to the Fill Rule, the first question, logically, is

whether the Corps, in issuing a permit for Coeur’s

proposed discharge, has reasonably interpreted its

own Fill Rule. The Fill Rule defines “discharge of fill

material” to include specifically “overburden, slurry,

or tailings or similar mining-related materials.” 33

C.F.R. § 323.2(; 40 C.F.R. § 232.2. Though SEACC

concedes that regulation is “not ambiguous,” and, in-

deed, even that Coeur’s discharge “meet(s] [its] defi-

nition of ‘fill material,” SEACC Br. 20, 46, it never-

theless contends that the history of the Fill Rule

demonstrates that the Corps and EPA did not intend

the Fill Rule to encompass mine tailings produced by

an industrial source subject to EPA effluent restric-

tions. See id. 55-57.

SEACC’s reading of that regulatory history is

dubious, and its contention that EPA and the Corps

did not intend their Fill Rule to permit the discharge

of Coeur’s type of mine tailings is flatly contradicted

4

by numerous pre-litigation complaints that the Fill

Rule would do just that.

But even if the regulatory history were exactly as

SEACC now describes, its concession that the Fill

Rule is “not ambiguous” would be fatal to its argu-

ment. The law is clear that if an agency’s interpreta-

tion is consistent with “the plain words of the regula-

tion,” that is the end of the matter. Bowles v. Semi-

nole Rock & Sand Co., 325 U.S. 410, 414 (1945).

Here, the Corps’ interpretation of the regulation is

not merely consistent with the “plain words” of the

Fill Rule, but commanded by it. The Corps’ interpre-

tation of the regulation therefore must be given “con-

trolling weight.” Id.

SEACC’s next and principal contention—that the

Corps’ interpretation of the Fill Rule violates the

Clean Water Act by permitting a discharge that Sec-

tion 306(e) prohibits—also lacks merit. SEACC ac-

knowledges that the analysis of its statutory claim

must be guided by the framework of Chevron, U.S.A.

v. Natural Resources Defense Council, 467 U.S. 837,

842-43 (1984). SEACC Br. 20. Because it advances

no argument that the Corps’ interpretation fails un-

der Chevron’s second step, SEACC can prevail only if

“Congress has directly spoken to the precise question

at issue” and resolved it in SEACC’s favor. Chevron,

467 U.S. at 842.

Ilere, the “precise question at issue” is whether

Congress intended discharges of “fill material” de-

scribed in Section 404 to be regulated by the Section

404(b\(1) guidelines, or rather, at EPA’s option, by

effluent restrictions promulgated by EPA as part of

the National Pollution Discharge Elimination Sys-

tem (“NPDES”) set out in Section 402. The “tradi-

tional tools of statutory construction” (Chevron, 467

5

U.S. at 843 n.9), point overwhelmingly to the conclu-

sion that Congress intended “fill material” to be

regulated by the Corps under Section 404, subject to

the water-quality requirements developed by EPA

under Section 404(b)(1) and to EPA’s permit veto

power under Section 404(c).

At most, the assertedly categorical nature of Sec-

tion 306(e)’s prohibition creates an ambiguity in “this

very ‘complex statute.” Chem. Mfrs. Ass’n v. Natural

Res. Def. Council, 470 U.S. 116, 125 (1985). For

more than thirty years, EPA and the Corps have in-

terpreted the Act to grant the Corps jurisdiction over

any discharge that satisfies the prevailing regulatory

definition of “fill material,” and to grant EPA juris-

diction over discharges of all other pollutants.

SEACC’s absence of contrary argument effectively

concedes that, if the Act is ambiguous, the longstand-

ing regulatory division of labor reflected in the Fill

Rule is a permissible means of resolving that ambi-

guity.

But even if the Act rejected that regulatory divi-

sion of labor and unambiguously required the Corps

to cede its Section 404 authority to regulate dis-

charges of “fill material” whenever EPA sought to

regulate such a discharge through an effluent re-

striction, SEACC still could not prevail in this case.

SEACC’s argument that the Corps’ “fill material”

permit violates Section 306(e) is predicated on its as-

sertion that the “discharge from the Kensington

mine’s beneficiation mill is prohibited by a new

source performance standard adopted by EPA”’—

specifically, EPA’s performance standard for process

wastewater from gold froth-flotation mills, 40 C.F.R.

§ 440.104(b)(1). SEACC Br. 20. But EPA, the

agency charged with promulgating, administering,

6

and enforcing that performance standard, plainly

disagrees, concluding that “effluent limitations

guidelines and standards, such as those applicable to

gold ore mining .. . do not apply to the placement of

tailings into the proposed impoundment.” J.A. 144a—

45a (emphasis added).

There accordingly was no basis for the Ninth

Circuit’s conclusion that Coeur’s proposed discharge

would be “in violation of [EPA’s] standard of per-

formance,” 33 U.S.C. § 1316(e), much less its conclu-

sion that the Corps acted “not in accordance with

law” when it abided by EPA’s interpretation of the

scope of its own effluent restriction.

I. COEUR’S TAILINGS SLURRY INDISPUTABLY Is

“FILL MATERIAL” WITHIN THE MEANING OF

THE FILL RULE

The Ninth Circuit held that the Corps unrea-

sonably interpreted the Fill Rule’s definition of “dis-

charge of fill material” —defined by EPA and the

Corps to include specifically placement of “slurry, or

tailings or similar mining-related materials,”

33 C.F.R. § 323.2()—to encompass Coeur’s proposed

placement of a tailings slurry. J.A. 546a—47a. With

no answer to the “the plain words of the regulation,”

Seminole Rock, 325 U.S. at 414, or the axiom that

where language “is plain and the agency’s construc-

tion completely consistent with that language, the

agency’s construction simply cannot be found ‘suffi-

ciently unreasonable’ as to be unacceptable,” United

States v. Locke, 471 U.S. 84, 96 (1985)—indeed,

SEACC concedes that Coeur’s tailing slurry “meet|s]

the agencies’ definition of fill material,” SEACC Br.

20—SEACC defends the Ninth Circuit’s conclusion

with a subtle twist on that court’s reasoning.

7

Where the Ninth Circuit held that the Corps’ is-

suance of a permit to Coeur contravened “dispositive”

“regulatory history,” J.A. 547a, SEACC now contends

that the preamble to the Fill Rule essentially applied

a narrowing construction to the regulation’s textual

definitions of “fill material” and “discharge of fill ma-

terial” that excludes any discharge from sources

regulated by EPA effluent restrictions, and that the

Corps’ unreasonably deviated from that narrowing

construction by permitting Coeur’s discharge.

This supposed narrowing construction must have

been quite obscure because SEACC did not assert its

existence until several years after the regulation was

promulgated. Quite the contrary, when the Fill Rule

was first promulgated, respondent Sierra Club de-

cried the fact that the new Fill Rule allowed Section

404 permits for the discharge of “hardrock mining

waste.”! And one month later, SEACC’s counsel of

record, Earthjustice, testified before a Senate sub-

commitee and complained that the new Fill Rule

would allow mining companies “to apply for a § 404

‘fill’ permit from the Corps .. . even if the waste to be

discharged has an effluent limitation and would oth-

erwise be regulated under § 402 of ihe law.”

In fact, as the pre-litigation statements of the Si-

erra Club and their counsel suggest, the preamble to

1 See Press Release, Sierra Club, Bush Administration Allows

Waste Dumping in America’s Rivers and Streams (May 3,

2002), http://www.commondreams.org/news2002/0503-11.htm.

2 Hearing on Clean Water Act Definition of Fill Before the

Subcomm. on Clean Air, Wetlands, and Climate Change of the

S. Committee on the Environment and Public Works,

http://epw.senate.gov/107th/Mulhern_060602.htm (2002)

(statement of Joan Mulhern, Senior Legislative Counsel, Farth-

justice Legal Defense Fund) (emphasis added).

8

the Fill Rule does not include the narrowing con-

struction on which SEACC now relies. SEACC ze-

roes in on statements that the rule “is generally con-

sistent with current agency practice” and “generally

is intended to maintain our existing approach,”

SEACC Br. 12, 13 (quoting Final Revisions to the

Clean Water Act Xegulatory Definitions of “Fill Ma-

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

31,129, 31,129, 31,133, 31,135 (2002)), and claims

that they demonstrate that EPA and the Corps did

not intend (plain language of their regulation not-

withstanding) to allow the Corps to permit this dis-

charge. See SEACC Br. 56. They argue that because

Coeur’s tailings slurry likely would not have been

deemed by the Corps to be Section 404 fill material

under its previous purpose-based test, the agencies’

disclaimer of “any intention to change their existing

practice,” must mean that they did not intend to

change their characterization of—and the regulatory

regime applicable to—Coeur’s discharge. /d.

But the “approach” and “practice” that the agen-

cies sought to maintain was not the then-uncertain

boundaries of the Corps’ Section 404 permit program;

it was the agencies’ longstanding use of the regula-

tory definition of “fill material” as the line of demar-

cation between the Corps’ permit program and

EPA’s. For decades, EPA had recognized that

“(djischarges of dredged or fill material . . . which are

regulated under section 404” “do not require NPDES

permits.” See 40 C.F.R. § 122.3(b). Accordingly,

even under the 1986 MOA, discharges of fill material

that met the Corps’ definition of fill material “re-

mainled] subject to section 404 even if they oc-

cur{red] in association with discharges of waste

meeting the criteria in the agreement for section 402

discharges.” See Water Pollution Control; Memoran-

9

dum of Agreement on Solid Waste, 51 Fed. Reg.

8,871, 8,871 (1986).3

The preambular statements on which SEACC

places most reliance are located within the agencies’

explanation of their decision to “delete[] the exclusion

contained in the proposal for discharges covered by

effluent limitation guidelines or standards or

NPDES permits.” Final Revisions, 67 Fed. Reg. at

31,135 (emphasis added). It was in that context that

the agencies explained that eliminating the exclusion

would not “alter the manner in which water quality

standards currently apply under the section 402 or

the section 404 programs” because “EPA has never

sought to regulate fili material under effluent limita-

tion guidelines.” Jd. (emphasis added). Retaining

the proposed exclusion, on the other hand, “would

result in uncertainty with respect to the regulation of

certain discharges.” Jd. Indeed, the agencies’ re-

sponse to comments suggests that the exclusion was

deleted specifically because it “could inadvertently

result in attempts by regulators ... to have dis-

charges excluded from section 404 coverage simply

due to the presence of constituents in the material

3 SEACC argues that the absence of a comma in 40 C.F.R.

§ 122.3(b) implies that “some ‘fill material’ discharges are not

regulated under Section 404” and remain subject to regulation

under Section 402. SEACC Br. 47. Whatever one’s assessment

of SEACC’s view of “proper grammar,” id. 48, it is clear that

EPA has never subscribed to it. See Fed. Resp'ts Br. 27; see also

J.A. 74a (“under the existing EPA definition, material that has

the effect of fill, regardless of the purpose of the discharge, is

deemed fill material, and as such is not regulated under the

Section 402 program”). EPA’s interpretation of its regulation is

not remotely “plainly erroneous,” and, therefore, is controlling

See Long Island Care at Home, Ltd. v. Coke, 127 8. Ct. 2339,

2349 (2007).

10

for which effluent guidelines exist” such as “mine

drainage or process waste water.” J.A. 45a—46a.

Rather than introduce confusion into a regula-

tion designed to produce clarity, the agencies decided

to delete the exclusion and “maintain [the] existing

approach” with EPA “never” regulating discharges

that satisfy the Corps’ definition of fill material. Fi-

nal Revisions, 67 Fed. Reg. at 31,135. SEACC can-

not through this litigation “reintroduce[] into the

regulation precisely what the Corps had excised,”

United States v. Riverside Bayview Homes, 474 U.S.

121, 130 (1985), particularly when to do so would up-

end the regulatory paradigm the Corps and EPA

have jointly followed since 1973.

Although the Fill Rule did not alter the agencies’

use of the regulatory definition of “fill material” as

the dividing line between the Corps’ and EPA’s regu-

latory programs, it did quite clearly change the defi-

nition of “fill material.” In order to “ensure a clear,

effective, and consistent regulatory approach with

regard to materials that have the effect of fill,” the

agencies reconciled their conflicting definitions of

“fill material” by adopting EPA’s effects-based test,

and “providied] a single consistent definition of the

terms ‘fill material’ and ‘discharge of fill material.”

J.A. 73a. In the final rulemaking, the agencies

amended the definition of “discharge of fill material”

to include explicitly “slurry, or tailings or similar

mining-related materials,” 33 C.F.R. § 323.2(f), to

“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).

But even this change in the definition of “fill ma-

terial” did not materially “expand the types of dis-

11

charges that will be covered under section 404,” Fi-

nal Revisions, 67 Fed. Reg. at 31,133 (emphasis

added), because, as the agencies explained when re-

sponding to comments on the proposed rule, “mining

by-products such as those resulting from mining

beneficiation or ... processing ... may have a

slightly different physical form from the traditional

rock and soil used as fill material, but ... can have

the same effect on the aquatic environment.” J.A.

92a—93a. Moreover, under the Section 404(b) guide-

lines, the applicant is required to “demonstrat[e] that

there are no less damaging alternatives to the dis-

charge, and that all appropriate and practicable

steps have been taken to avoid, minimize and com-

pensate for any effects on the waters.” Final Revi-

sions, 67 Fed. Reg. at 31,133.4

Thus, while the Fill Rule clarified and shifted

slightly the line of demarcation between the Corps’

and EPA’s permitting programs (and explained that

policy shift at length), it did not change in any way

the method by which that line is drawn. Now, as

since 1973, it is drawn solely by reference to the

regulatory definition of fill material. If the Corps de-

termines that a discharge satisfies its definition of

fill material, the discharge is regulated by the Corps

4 SEACC claims that the agencies “notled] that mine tailing

discharges subject to effluent limitations would remain so and

that section 402 permits would still be needed for ‘process wa-

ter’ discharges.” SEACC Br. 56. SEACC must be referring to

the agencies’ statement that “if FPA has previously determined

that certain materials are subject to an ELG under specific cir-

cumstances, then that determination remains valid.” J.A. 48a.

But, under the “specific circumstances” of this case, EPA has

determined that its effluent restrictions “do not apply to the

placement of tailings into the proposed impoundment.” /d.

145a (emphasis added).

12

under Section 404, in accordance with the water-

quality requirements set forth in the Section

404(b)(1) guidelines and subject to EPA’s permit veto

under Section 404(c). “EPA has never sought to regu-

late fill material under effluent guidelines.” Final

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

SEACC’s suggested preambular narrowing con-

struction of the Fill Rule is entirely a figment of its

zealous advocacy—a reflection of what the Fill Rule

might have looked like if the agencies had adopted

rather than rejected the suggestions made by

SEACC and the Sierra Club in their comments on

the proposed rule. The plain language of the Fill

Rule stands on its own, and there is no serious dis-

pute that Coeur’s tailings slurry satisfies its defini-

tions of “fill material” and “discharge of fill material.”

The Corps and EPA reasonably interpreted its Fill

Rule in making that determination.

II. THE CLEAN WATER ACT AUTHORIZES THE

CorPs To PERMIT THIS DISCHARGE

Abandoning any reliance on Section 301 of the

Act, (what once was featured argument, see SEACC

C.A. Br. 34, is now, belatedly, a “sideshow,” see

SEACC Br. 38), SEACC rests its statutory argument

on a single contention: that the Corps’ issuance of a

Section 404 permit for Coeur’s tailing slurry violates

the Clean Water Act by permitting a discharge that

Section 306(e) allegedly prohibits. That argument

fails for at least two independent reasons. First, as

the Corps and EPA have recognized for decades, the

text, structure, and history of the Act demonstrate

that even “zero discharge” Section 306 performance

standards do not apply to discharges of fill material.

But even if SEACC were correct that, as a general

matter, Section 306 performance standards can ap-

13

ply to discharges of fill material and thereby displace

the Corps’ regulatory authority over such discharges,

the Corps’ issuance of its permit here to Coeur still

would be “in accordance with law,” 5 U.S.C. § 706(2),

because EPA itself has determined that Coeur’s

placement of a tailings slurry into an impoundment

does not violate its froth-flotation performance stan-

dard, J.A. 145a—46a. The Corps could not, “in accor-

dance with law,” reject EPA’s interpretation of its

own performance standard to deny Coeur the permit

to which SEACC concedes it is otherwise entitled.

A. The Text, Structure, And History Of

The Clean Water Act Demonstrate

That EPA Performance Standards

Do Not Apply To Discharges Of Fill

Material

On SEACC’s and the Ninth Circuit’s view, if EPA

promulgated Section 306 performance standards for

all discharges of “fill material” from every manner of

industrial and municipal source, those regulations

would strip the Corps of its statutory authority over

discharges of fill material and would require that all

such discharges “be permitted, if at all, under section

402, not section 404.” SEACC Br. 37-38. This view

of the statutory scheme cannot be reconciled with its

text, structure, or history and, therefore, must be re-

jected.

SEACC places great weight on its view of the

purposes of the Clean Water Act, arguing that the

agencies’ conclusion that EPA effluent restrictions do

not apply to discharges of fill material is “highly

unlikely given the Act’s purpose[]” of meeting a non-

binding “goal that the discharge of pollutants into

the navigable waters be eliminated by 1985.”

SEACC Br. 30; 33 U.S.C. §1251l(a\1). Achieving

14

that one of the Act’s numerous legislative objectives,

however, was manifestly not the purpose of Section

404 and its grant of authority to the Corps to issue

permits for discharges of fill material. In any event,

this Court has made clear that it is the agencies

charged with a_ statute’s administration—not

courts—that are best positioned to ascertain the “full

understanding of the force of the statutory policy in

the given situation.” Chevron, 467 U.S. at 844.

Here, as in the Truth in Lending Act, “a court that

tries to chart a true course to the Act’s purpose em-

barks upon a voyage without a compass when it dis-

regards the agency’s views.” See also Ford Motor

Credit Co. v. Milhollin, 444 U.S. 555, 568 (1980).

The “traditional tools of statutory construction”—

text, structure, and history—all support the expert

agencies’ considered and longstanding interpretation

of the statutory scheme as granting the Corps’ juris-

diction over all discharges it reasonably determines

to be “fill material.” Conversely, none of the tradi-

tional tools remotely supports (much less unambigu-

ously requires) the Ninth Circuit’s construction of

the Act, under which fill material is subject to the

Corps’ jurisdiction only to the extent that EPA

chooses not to regulate it.

1. SEACC’s principal argument is that Section

306(e) amounts to an “absolute prohibition[],” allow-

ing no discharge in excess of EPA’s performance

standards. SEACC Br. 24. This is true as far as it

goes—SEACC is right that Section 306(e) itself “con-

tains no exceptions.” Jd. But as SEACC elsewhere

concedes, if “section{] [806] has no application to a

particular discharge, then the discharge cannot be in

violation of it.” Jd. 39. Because Section 306(e) does

not of its own force “prohibit||” any particular dis-

15

charge—rather, it works in conjunction with “appli-

cable” EPA performance standards and bans dis-

charges “in violation of” those effluent restrictions,

33 U.S.C. § 1316(e)—Section 306 itself cannot answer

the question whether Congress intended for Section

306 to apply to discharges of fill material. Sections

402 and 404, however, make clear that it did not.

SEACC acknowledges that the Act sets up two

separate regimes for regulating discharges into wa-

ters of the United States, with discharges of “one

type of pollutant, dredged or fill material,” regulated

by the Corps under Section 404, and discharges of all

other pollutants regulated by EPA under Section

402’s NPDES program. SEACC Br. 7. And SEACC

readily admits that Congress “wrl[ote] the two provi-

sions differently”: Under the NPDES program, dis-

charges must comply with EPA “effluent limitations

under sections 301 [and] 306,” and, under Section

402(k), compliance with an NPDES permit is deemed

compliance with those statutes. Id. 37; see also 33

U.S.C. § 1342(a), (k). “In contrast,” under the Sec-

tion 404 program, discharges of fill material are ex-

plicitly regulated according to a different set of EPA

water-quality requirements, “the 404(b) guidelines,”

and, under Section 404(p), compliance with a Section

404 permit is deemed compliance with those water-

quality requirements. SEACC Br. 37; see also 33

U.S.C. § 1344(b), (p).

This is no “implied exception[]” to Section 306’s

general prohibition on discharges that violate EPA

performance standards. SEACC Br. 31. It is a clear

and specific directive from Congress that discharges

of fill material be regulated, not under ill-fitting per-

formance standards, but under an entirely different

set of substantive standards—the Section 404(b)(1)

16

guidelines, developed by EPA in consultation with

the Corps—subject to EPA’s authority under Section

404(c) to veto permits as it deems appropriate.®

SEACC refuses to accord any significance what-

soever to Congress’s disparate treatment of fill mate-

rial and other pollutants. But just two terms ago,

this Court made clear that, in interpreting the Clean

Water Act, courts must presume that “Congress acts

intentionally and purposely” when it “includes par-

ticular language in one section of a statute but omits

it in another section.” S.D. Warren Co. v. Me. Bd. of

Envtl. Prot., 547 U.S. 370, 384 (2006). SEACC sug-

gests no persuasive textual or structural rationale

for declining to give effect to Congress’s “intentional |[]

and purpose(ful]” decision to regulate discharges of

fill material under the Section 404(b)(1) guidelines.6

2. The legislative history of Section 404 strongly

supports the conclusion that Congress intended for

discharges of fill material to be regulated by the

Corps, under standards specifically tailored to the

environmental concerns unique to discharges of fill

— —

5 It is true, as SEACC says (at 27), that, under the regula-

tions establishing the Section 404(b)(1) guidelines, “the Corps

must comply with other applicable laws in issuing or denying

section 404 permits,” see 40 C.F.R. § 230.10(b) (requiring com-

pliance with, inter alia, Endangered Species Act), but SEACC

fails to mention that Section 306 is not one of those “applicable

laws.”

6 Section 404(n) is not a sufficient justification. Contra

SEACC Br. 27-28. Section 404(n) simply saves EPA’s broad

authority, under Section 309 of the Act, to enforce effluent re-

strictions and permit conditions. See 33 U.S.C. § 1344(n).

Nothing in Section 309 makes Section 306 performance stan

dards applicable—or not—to particular discharges. See id.

§ 1319.

17

material, rather than by EPA under performance

standards fundamentally incompatible with dredge

and fill activities.

SEACC has no response whatsoever to the legis-

lative history of Section 404. See Coeur Br. 29-31.

It has nothing to say concerning the debate in Con-

gress over whether dredge and fill activities histori-

cally regulated by the Corps should be regulated by

EPA, and no alternative explanation for the com-

promise that emerged under which the Corps would

retain primary jurisdiction over discharges of dredge

and fill material, but EPA would play a significant

oversight role through its development of the Section

404(b)(1) guidelines and its veto authority. Indeed,

even the letter from Administrator Ruckelhaus that

SEACC points to as authority (at 41—42), recognized

that under the enrolled bill, “[t}he Corps shall con-

tinue to issue dredge and fill permits in accordance

with criteria comparable to the EPA ocean discharge

criteria”—which is to say, the Section 404(b)(1)

guidelines. 118 Cong. Rec. 36,777 (1972).

SEACC instead relies on three Senators’ fleeting

references to litigation surrounding the Reserve Min-

ing Company’s discharge of a mostly liquid (98.5 per-

cent) tailings slurry into Lake Superior. See Reserve

Mining Co. v. EPA, 514 F.2d 492 (8th Cir. 1975). At

_ the time Congress was considering the Act, Reserve

had pending before the Corps an application for a

discharge permit under the Refuse Act. See 33

U.S.C. § 407. SEACC argues that Congress’s deci-

sion to convert over 20,000 pending Refuse Act per-

mit applications into NPDES applications, see

33 U.S.C. § 1342(a)(5), reflects an intention that all

discharges of mine tailings similar to Reserve’s be

18

regulated by EPA under its NPDES program. See

SEACC Br. 42-44.

As a initial matter, other than the fact that it

was produced by a beneficiation mill, Reserve’s dis-

charge bears no resemblance whatsoever to Coeur’s.

If proposed today, Reserve’s discharge could not be

permitted under Section 404 for at least three rea-

sons: (1) the unimpounded waters of Lake Superior

would not qualify as a “specified disposal site,”

33 U.S.C. § 1344(a); (2) the discharge of a 98.5-

percent-liquid slurry likely would not raise Lake Su-

perior’s bottom elevation; and (3) the Section

404(b)(1) guidelines do not permit discharges that

jeopardize drinking-water resources, see 40 C.F.R.

§§ 230.10(c)(1), 230.50.

But even if Reserve’s discharge were similar to

Coeur’s, SEACC’s argument still would fail because

Section 402(a)(5) and its scant legislative history

cannot bear the weight SEACC places upon it. If the

legislative record says anything at all about Section

402(a)(5), it suggests only that Section 402(a)(5) was

intended to resolve, with minimal administrative

burden, “the unbelievable mess” resulting from the

backlog of over 20,000 discharge permit applications

that had accumulated since the Corps’ Refuse Act

regime had been judicially invalidated. 118 Cong.

Rec. 33,765 (statement of Rep. Clark); see also Kalur

v. Resor, 335 F. Supp. 1 (D.D.C. 1971) (invalidating

Corps’ Refuse Act regulations). Nothing in the con-

gressional debates even remotely suggests Congress

intended Section 402(a)(5) to fix for all time the regu-

latory regime to be applied to Reserve’s discharge or

any other discharge previously permissible under the

Refuse Act. And, indeed, nothing in Section

402(a)(5) precluded Refuse Act applicants from seek-

19

ing permits for their discharge under other provi-

sions of law, including Section 404. Section 402(a)(5)

thus hardly can be considered evidence that Con-

gress considered the question precisely at issue here,

much less resolved it in SEACC’s favor.”

3. In short, all the traditional tools of statutory

construction point in one direction: toward the con-

clusion that Congress intended that discharges of fill

material be regulated by the Corps according to the

Section 404(b)(1) guidelines rather than by EPA, ac-

cording to its Section 306 performance standards.

SEACC makes much of the absence of explicit statu-

tory language making clear that EPA performance

standards do not apply to discharges of fill material.

See SEACC Br. 33. But the absence of such explicit

language would mean, at most, that Congress was

silent on the specific issue of how Section 404’s au-

thorization and Section 306(e)’s prohibition interre-

late. Where a statute is silent, a reviewing court

“may not substitute its own construction of a statu-

tory provision for a reasonable interpretation made

by administrator of an agency.” Chevron, 467 U.S. at

843-44.

There can be no doubt that the Corps’ and EPA’s

longstanding joint interpretation of the statutory

scheme—that discharges satisfying the Corps’ defini-

tion of “fill materia!” are regulated by the Corps un-

7 Nor did Section 402(a)(5) implicitly limit “fill material” to

the “work’ or ‘structures’ in navigable waters” permitted “under

section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403.”

SEACC Br. 41. That would have made the Corps’ Section 10

permit program obsolete, yet it remains active today. See 33

C.F.R. § 320.2(b). It also would have authorized fill material

permits without reference to the applicability of EPA perform-

ance standards and thus defeated SEACC’s argument here.

20

der Section 404, and “never” by EPA under effluent

guidelines—is reasonable. SEACC essentially con-

cedes the point when it urges the Court to “defer to

the reasonable interpretation of the Act adopted by

EPA and the Corps when they adopted the [Fill

Rule].”. SEACC Br. 46. And rightly so, for an

agency’s interpretation of an ambiguous statute

surely falls within the wide range of permissible con-

structions when it is consistent with (if not required

by) the “basic principle of statutory construction that

a specific statute ... controls over a general provi-

sion”—a principle that applies with particular force

when two statutory provisions are “interrelated and

closely positioned, both in fact being parts of” a sin-

gic statutory scheme. HCSC-Laundry v. United

States, 450 U.S. 1, 6 (1981). Here, it cannot be seri-

ously disputed that Section 404 is more specific to

the regulation of discharges of fill material than the

“blanket prohibition[]” of Section 306(e) that assert-

edly applies to “any” and “all” discharges. J.A. 532a,

530a. Any ambiguity lurking within the Act on the

question whether particular discharges of fill mate-

rial are to be regulated under the Section 404(b)(1)

guidelines or EPA performance standards has been

jointly, reasonably, and continuously resolved by the

Corps and EPA by reference to the regulatory defini-

tion of fill material.

B. EPA’s Interpretation Of Its

Performance Standard Resolves Any

Question Whether The Corps’

Section 404 Permit Would Violate

Section 306(e)

Even if SEACC’s interpretation of the Act were

correct, it would not follow that the Corps’ issuance

of a discharge permit to Coeur was “not in accor-

dance with law.” 5 U.S.C. § 706(2)(A). SEACC’s con-

21

tention that Coeur’s discharge of fill material vio-

lates Section 306(e) hinges on its assertion that

Coeur’s proposed discharge would violate EPA’s

froth-flotation performance standard. EPA, however,

expressly determined otherwise.

In response to inquiries concerning “Clean Water

Act ... regulation of ... discharges of mine tailings

from the proposed Kensington Mine,” but before

SEACC initiated this litigation, EPA’s Office of Wa-

ter published an authoritative memorandum that

concluded that “effluent limitations guidelines and

standards, such as those applicable to gold ore min-

ing (see 40 C.F.R. Part 440, Subpart J) do not apply

to the placement of tailings into the proposed im-

poundment.” J.A. 144a-45a (emphasis added).? And

in its brief to this Court (which was signed by EPA,

in addition to the respondent agencies), the govern-

ment has reaffirmed that position. See Fed. Resp’ts

Br. 28, 41. In the absence of any challenge to EPA’s

agency action—-SEACC did not name EPA as a de-

fendant—EPA’s determination is presumed valid and

must be regarded as controlling of the question

whether Coeur’s discharge of fill material would vio-

late EPA’s performance standard. See U.S. Postal

Serv. v. Gregory, 534 U.S. 1, 10 (2001) (“a presump

8 Instead, consistent with the statute, its own regulations,

and long-standing practice, EPA determined that such per-

formance standards would apply to any effluent discharged

from the impoundment into downstream waters, and be regu-

lated at that point under Section 402. J.A. 144a—45a. Contrary

to SEACC’s suggestion, upholding Coeur’s Section 404 permit

will not nullify froth-flotation and other performance standards;

EPA will continue to apply such standards to discharges from

tailings impoundments.

22

tion of regularity attaches to the actions of Govern-

ment agencies”).

Even if SEACC had challenged EPA’s determina-

tion, this Court still would have to defer to EPA’s in-

terpretation of its own performance standard unless

it was “plainly erroneous or inconsistent with the

regulation.” See Long Island Care, 127 S. Ct. at 2349

(according deference to internal department memo-

randum); Auer v. Robbins, 519 U.S. 452, 461 (1997)

(according deference to interpretation stated in legal

brief). SEACC cannot possibly sustain that burden;

EPA’s conclusion that its performance standard for

process wastewater does not apply to discharges of

fill material is unassailable.

Indeed, SEACC implicitly concedes the point. In

attempting to distinguish the Red Dog and Fort

Knox mines, SEACC acknowledges that, in both in-

stances, mine tailings were placed in jurisdictional

waters and wetlands to build impoundment struc-

tures. SEACC Br. 53. SEACC offers that

“(djewatered tailings are sometimes used as a con-

struction material in dams at mines,” id. at 53 n.16,

but what SEACC fails to explain is that—

particularly in southeast and other wet areas of

Alaska—mine tailings can never be completely “de-

watered.” See Pacific Legal Foundation, ef a/.,

Amicus Curiae Br. 17. Even after energy-intensive

drying processes, measurable amounts of “process

wastewater” will remain entrained in the largely

solid tailings. See J.A. 192a (“tailings would be de-

watered ... to a moisture content of 5 to 18 per-

cent”). If, as SEACC has asserted, the presence of

any amount of water in contact with mine tailings

allows SEACC to label the mixture “process waste-

water with significant quantities of suspended sol

23

ids” and subjects that discharge to EPA effluent re-

strictions, then the Corps could not have permitted

the discharge of the “{djewatered tailings” at Red

Dog or Fort Knox.9

The applicability of EPA effluent restrictions to

mine tailings cannot turn on the extent to which they

are “dewatered.” It instead turns, as it always has,

on whether the discharge satisfies the regulatory

definition of fill material—whether the Corps’ previ-

ous purpose-based definition applicable when the

Red Dog impoundment was constructed, or the Fill

Rule’s effects-based definition applicable to Coeur’s

tailings slurry today.

Ill. THE Corps’ RIGOROUS SECTION 404

PERMITTING PROCESS ENSURED THAT THE

KENSINGTON TAILINGS PLAN RESPECTS

ENVIRONMENTAL VALUES

SEACC tars Coeur’s tailings slurry as toxic and

chemically harmful to the environment, but Coeur’s

mine tailings will change Lower Slate Lake in ex-

actly the same manner as a discharge of “clean” dirt:

they will cover the bottom of the lake. This dis-

charge of fill material will have real impacts—it will

raise the »ottom elevation of the lake by 50 feet and

9 SEACC suggests that the placement of mine tailings for the

Red Dog and Fort Knox mines was permitted only because

those impoundments were deemed non-jurisdictional “waste

treatment systems.” SEACC Br. 53-54; see also 40 C.F.R.

§ 122.2 (providing that “waste treatment systems” are “not wa-

ters of the United States”). But the tailings used to build the

impoundment structures indisputably were placed in jurisdic-

tional waters, which is why their placement required a Section

404 permit. And as explained by EPA, the Fill Rule regulates

tailings discharges into impoundments more effectively than

the waste-treatment-system provision does. J.A. 145a—46a

24

nearly triple its surface area—but these are exactly

the type of impacts that the Corps has long been

charged with evaluating. Using this expertise, the

Corps—acting in consultation with numerous other

federal and state agencies—evaluated Coeur’s tail-

ings alternatives under the Section 404(b)(1) guide-

lines and correctly determined that the placement of

the Kensington tailings in Lower Slate Lake was the

“least environmentally damaging practicable alter-

native.” J.A. 354a. This process, and the EPA’s au-

thority to veto the permits it produces, demonstrates

that the Ninth Circuit’s strained reading of the Act

and its rewriting of the Fill Rule is, aside from being

incorrect, unnecessary.

Lower Slate Lake is one of an abundance of simi-

larly-sized, isolated ponds in Southeast Alaska. Cov-

ering only 23 acres, it is approximately one-fifth the

size of the Potomac Tidal Basin or the Reservoir in

New York City’s Central Park.!9 Though relatively

small in surface area, Lower Slate Lake is unusually

deep—so deep that only the top half of the lake can

sustain aquatic life. J.A. 134a, 137a. The unproduc-

tive depths of the lake are a site where the large

quantity of tailings inevitably produced by a

hardrock mining operation like Kensington can be

stored with minimal environmental impact.

The Corps-approved plan to impound and fill in

the unproductive portion of the lake is equivalent to

10 See, e.g., NATIONAL PARKS SERVICE, HISTORIC AMERICAN

BUILDINGS SURVEY, PHOTOGRAPHS: WRITTEN HISTORICAL

DESCRIPTIVE DATA, WEST POTOMAC PARK 14, available at

http://lcweb2.loc.gov/pnp/habshaer/dc/dc0800/dc0802/data/dc080

2.pdf (107 acres); Central Park Conservancy, Reservoir, at

http://www .centralpark com/pages/attractions/reservoir.htm!

(106 acres).

25

those it previously approved as “specified disposal

sites” under Section 404 for the Red Dog and Fort

Knox mines. Compare J.A. 360a—6la, with C.A.

J.S.E.R. 1097, 991. The plan authorizes an im-

poundment in jurisdictional waters for the storage of

mine tailings, with the naturally flowing waters di-

verted around the impoundment. Tailings are placed

into the impoundment in a slurry form, and water is

recycled back to the mill via a return pipeline. 7d.

293a—94a. See Pacific Legal Foundation Amici Cu-

riae Br. 14 (diagram). Discharges from the im-

poundment are strictly regulated under EPA’s Sec-

tion 402 NPDES permit program. As provided under

the “zero discharge” performance standard, Coeur’s

Section 402 permit limits the discharges from the

tailings impoundment to an amount equivalent to

naturally occurring “net precipitation,” see 40 C.F.R.

§ 440.104(b), and requires even that limited amount

of water to be treated prior to discharge, J.A. 294a,

373a.

Contrary to SEACC’s suggestions, the tailings

slurry placed into the impoundment is fundamen-

tally inert. The Corps found that “the aluminum

concentrates in the tailings [are] less than that in

the lake sediment” and there is “a low potential for

chromium to be a risk to aquatic life.” J.A. 36la.

While elevated pH levels in the immediate vicinity

“around the discharge pipe” likely would be harmful

to aquatic life in that vicinity, fish will naturally

avoid the area of higher pH, C.A. E.R. 370, and the

elevated pH levels will “dissipate very rapidly,” J.A.

360a (Corps Revised ROD). As for the other chemi-

cals and minerals added to the tailings slurry, the

district court found (correctly) that they “are not

toxic and are expected to have no effect on water

quality other than the benefit of enhancing the set-

26

tling of the fine material.” Jd. 482a. If aquatic plant

or fish life is lost, it will be because the tailings cov-

ered the plant life—a natural and necessary conse-

quence of the filling of wetlands or most bodies of

water—which, in turn is the food source for the resi-

dent fish. Jd. 129a, 36la. After remediation, the

lake is expected to “provide at least equivalent

aquatic habitat and productivity as it does cur-

rently.” Id. 484a.11

While disposing of the tailings in Lower Slate

Lake will increase the size of the lake and cause only

temporary aquatic losses, any upland storage of the

tailings in a dry stack configuration would result in a

permanent loss of substantial acres of wetlands. J.A.

365a—66a. The first step in creating a dry stack

would be to fill in anywhere from 34 to 113 acres of

wetlands with “clean” rock and dirt (fill that al-

though purchased from a local quarry likely would be

substantially similar in composition to Coeur’s mine

tailings)—a permanent wetlands loss that is up to

five times the size of Lower Slate Lake. C.A.

J.S.E.R. 859-61. The tailings would then be dried to

the extent possible and stacked on top of the non-

jurisdictional filled wetlands. J.A. 192a—93a.

The resulting dry stack would be “highly visible

from Lynn Canal, the only Visual Priority Travel

Route (VPTR) impacted by project components.” J.A.

11 “(4) non-diverse, sparsely populated, assemblage of small

fish,” specifically approximately 1,000 fresh-water Dolly Varden

char and an undetermined number of threc-spine stickleback,

may be lost as a result of the filling of the lakebed. J.A. 129a,

197a—-98a. These fish are not threatened species, nor, according

to the Corps’ Section 404(b)(1) Guidelines Evaluation, are there

any endangered or threatened species in Lower Slate Lake. See

Id. 381a, 392a.

27

220a. It would reach from 150 to 200 feet high, C.A.

E.R. 327, and would extend, depending on which op-

tion were used, from 1200 to 2000 feet in both width

and length, C.A. J.S.E.R. 669-70. The dry stack fa-

cility would dwarf the Pentagon, standing twice as

high and potentially covering almost three times as

many acres. See The Pentagon - Facts & Figures, at

http://pentagon.afis.osd.mil/facts-area.html (77 feet

tall and 34 acres in area). 12

As part of the Section 404(b)(1) review of these

competing alternatives, the Corps concluded that

Coeur’s proposed aquatic tailings impoundment was

environmenta!!y preferable to any dry stack alterna-

tive. J.A. 366a. Specifically, the Corps concluded

that, after reclamation, the lake will become a “func-

tioning emergent wetland/vegetated shallows lake

complex, including 15 acres of emergent wet-

land/vegetated shallows as part of a 62 acre lake,

[that] is more valuable to the aquatic ecosystem than

a permanently filled wetland ... that has lost all

aquatic functions and values.” Jd. 36la. As detailed

by amicus curiae, this evaluation process, in which

EPA retains a significant oversight role, is thorough,

site-specific, and fully addresses environmental con-

siderations. See Nat'l Ass’n of Homebuilders Amicus

Curiae Br. 17-32. And «n top of that, Congress has

12 The “paste” tailings alternative referenced by SEACC (at

19) is not described in the record because it was first considered

only after the decision of the court of appeals. It shared many

of the same environmental! flaws as the dry stack alternative;

the principal difference was the consistency of the tailings.

SEACC Opp’n to Pets. for Writ of Cert. 10. Coeur terminated

the permitting process for a paste tailings facility when it be-

came apparent that that process inevitably would involve fur-

ther lengthy and costly permitting delays or lengthy and costly

litigation to defend permits, or both.

28

reserved to EPA the authority to veto any Section

404 permit. 33 U.S.C. § 1344(c). Here, after care-

fully examining the proposed discharge and com-

menting on the concerns it initially had, see, e.g., J.A.

37la—74a, EPA declined to veto the permit. This is a

robust review process, and SEACC’s attempt to por-

tray Section 404 permits as an escape valve for pol-

luters is implausible.

CONCLUSION

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, 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.

December 8, 2008