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

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Nos. 07- and 07-990 ' ee:

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In The a

Supreme Court of the United States

COEUR ALASKA, INC.,

Petitioner,

v.

SOUTHEAST ALASKA CONSERVATION COUNCIL, eZ al,

Respondents.

ALASKA,

Petitioner,

v.

SOUTHEAST ALASKA CONSERVATION COUNCIL, et aL,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

SUPPORTING PETITIONERS

ROBERT D. ANDERSON DUANE J. DESIDERIO*

FENNEMORE CRAIG *Counsel cof Record

3003 N. CENTRAL AVE., THOMAS J. WARD

SUITE 2600 Amy C. CHAI

PHOENIX, AZ 85012-2913 JEFFREY B, AUGELLO

(602) 916-5000 NATIONAL ASSOCIATION OF

HOME BUILDERS

1201 15T STREET, N.W.

WASHINGTON, D.C. 20005

(202) 266-8200

September 24, 2008

aie QS 44

TABLE OF CONTENTS

Page(s)

INTEREST OF THE AMICUS CURIAE ................... 1

SUMMARY OF ARGUMENT.............cccccccssccceseeceenees 2

ST iis ls csi ac ital tchapdesscsiiiiechdieheneniddaihinnsnunond 3

I.

THE SPECIFIC TYPE OF POLLUTANT

DETERMINES WHICH CLEAN WATER

ACT PERMIT PROGRAM COVERS A

re ered ccteseinscinrenssvenscosscosseseesees 3

A. Section 404 Permits Cover Dredged or

Fill Material, While Section 402 Permits

Cover “Other” Pollutants .............................. 3

. Section 404 Permits Cover Sediment “Placed”

at Specified Disposal Sites, While Section 402

Permits Cover Sediment Transported by

i _,_ REFEREE vee Ee ae O EET 6

. Courts Must Defer to the Agencies’ Expertise

in Deciding Whether a Particular Discharge

is Fill Material or Some “Other” Pollutant,

and Accordingly Which Permit Program

EE cdicabitiekbbbininiasinpininntianinndssinnsens 9

. EPA’s Comprehensive Section 402 Program

for Stormwater Runoff is Designed to Control

Sediment That Moves With Flowing Water

(as Opposed to Fill Placed in a Specific

Iii Ni accaladdcadeicedpsetguascaihiedaindaligideapedsing 14

II.

TABLE OF CONTENTS (cont.)

Page(s)

THE STRINGENT REQUIREMENTS OF

THE SECTION 404 PERMIT PROGRAM

ADEQUATELY PROTECT WATER

SITET cbiidiccuniianennsieciptebilesmabiahiniaiunenimvvonssatann 17

A. Requirements Imposed by the Clean Water

Act and Agency Regulations....................... 19

1. 404(6)(1) Guidelines ...............ccc0ecceceeeeeees 19

2. Public Interest Review................ccccseeeseees 23

LL AIT Ee DT ORT 25

4. Section 401 Water Quality

ERNE AT EE IO ROOT 28

B. Requirements Imposed by the Corps’s

Obligation to Comply With Other Laws.....29

1. National Environmental Policy

Fe iccieniidinaetitadinmithidiibunciisauadinnsisianes 29

2. Endangered Species Act (ESA)............... 30

3. National Historic Preservation

EA aiclok iciasicitsliehaibidenibenencubiesinadieneniiniia 31

I a la cea in pdeeces endneaeaa

IT Setnintntasenteniicdnnnsanisenisnesenninenninnionatiiin 35

***

TABLE OF AUTHORITIES

Page(s)

Cases

Balt. Gas & Elec. Co. v. Natural Res. Def. Council,

a as isis ietnilsrndernsdsnnnsionten 10

Bennett v. Spear, 520 U.S. 154 (1997)... 31

Bering Strait Citizens for Responsible Res. Dev. v.

U.S. Army Corps of Eng’rs, 524 F.3d 938

Is I sis snisssniseeeninteibseadissiapoddneneiebdinsiiis 21, 23, 24

Borden Ranch P’ship v. U.S. Army Corps of Eng’rs,

KEE ERP cn em 33

Edmond v. United States, 520 U.S. 651 (1997)..........5

Envtl. Def. Ctr. v. EPA, 344 F.3d 832

(9th Cir. 2003), cert. denied, 541 U.S. 1085

EET Pe Pe SS 15, 16

Fourco Glass Co. v. Transmirra Prods. Corp.,

ET en 5

Kleppe v. Sierra Club, 427 U.S. 390 (1976).............. 10

Mall Props. v. Marsh, 672 F. Supp. 561

REE eee eee 23

Marsh v. Or. Natural Res. Council, 490 U.S. 360

TREES Wi an ec AER Rr 10

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1DDZ) ......ecsscorsssessecsrsrserssssrsessrserseressses 5

Nat’ Ass’n of Home Builders v. U.S. Army Corps of

Eng’rs, 2007 WL 259944 (D.D.C. Jan. 30,

STI Iedicesianiunilsdhsddidiinieslichlandipiiaidinbdisesimeaiebuntininbidintenddesenens 34

Nat'l Ass’n of Home Builders v. Defenders of

Wildlife, 127 S. Ct. 2518 (2007).............ccccccsessseseeere 4

iv

TABLE OF AUTHORITIES (cont.)

Page(s)

Nat'l Mining Ass’n v. U.S. Army Corps of Eng’rs,

145 F.3d 1399 (D.C. Cir. 1998) ........ eee 33

PUD No. 1 of Jefferson County v. Wash. Dep’t of

Ecology, 511 U.S. 700 (1994) ..............sccecccssseesseeees 28

Rapanos v. United States, 547 U.S. 715

REARS SEES IGT Eee ee ee aaa ODE 6,18

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe,

a asa earinracnaneninicnnacdonesaene 33

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

a sa sneacnnnmnind 28

S.E. Alaska Conservation Council v. U.S. Army

Corps of Eng’rs, 486 F.3d 638

ny CITED iciicdiniihaiiniaidiatiainenensniotiepsadnsdnsaséin 10, 11

Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978)....... 30

Tex. Indep. Prods. & Royalty Owners Ass'n v.

EPA, 410 F.3d 964 (7th Cir. 2005) ....000... 16

United States v. Lucas, 516 F.3d 316 (5th Cir.

2008), petition for cert. pending, No. 07-1512

REESE ST Te 33

United States v. Robison, 505 F.3d 1208 (11th Cir.

2007), petition for cert. pending sub nom. United

States v. McWane, No. 08-223 (filed. Aug. 21,

SE EEO ee an Dn aes PL: Se ea 33

Utahns for Better Transp. v. U.S. Dep't of

Transp., 305 F.3d 1152 (10th Cir. 2002)............... 23

TABLE OF AUTHORITIES (cont.)

Page(s)

Statutory Provisions

Federal Water Pollution Control Act Amendments of

1972, 33 U.S.C. § 1251 et seg. (Clean Water Act):

a te ck soviickcosdepnoncnsinedacesotmsedinlbesiel 3

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Fe se IID viicsiccensccusecnoscscinniatuaiceanceiiia 28

I i ciicsvesconssonandsdenesnimseummaedi 4

cial eeaitiipmneipeeiscnpaiemianell 4

BD Fs ee I iitectcneccnsnsnensinsnsccononnonsiinedian 11,15

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| TT TT 17

es Oe I iiniicsnnsoninencnansensniiniibeanadena 7,19

Be es Oe IEEE icivtncccsccssessinandnnsssnncdinnianennial 17

I Oe a iiiisictincscscnnensnesnnaiicliniditions 7, 17-18

Be eae ER ciicctndncccessstessesenacsiiasenauiabidadl 18

a ain ccdnceccesssinseddecndaianecnseimeneniial 6

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National Historic Preservation Act, 16 U.S.C. § 461 et

seq.:

i Br an TF IEEE stiiniceniisveceentidssicicamnemnneinieaniiail 31

vi

TABLE OF AUTHORITIES (cont.)

Page(s)

Fish and Wildlife Coordination Act, 16 U.S.C. § 661

EE cidiapsibilinssintcisnnnnneninnanccnetnsnensnesisinesecesosaenecesensesens 32

Wild and Scenic Rivers Act, 16 U.S.C. § 661 et seg.:

cn artainncigninsaiienieidtenenbtionenntes 32

Marine Mammal Protection Act, 16 U.S.C. § 1361

SE Aelia Ail idaiidatindenandgunsseseneteresneiiconsssuessedanns «ines 32

Coastal Zone Management Act, 16 U.S.C. § 1451

et seq.:

I Te IID inacics nvesascenasecesensscsneseossaseccesenene 32

Endangered Species Act, 16 U.S.C. 1531 et seq.:

i IED secvcccscedccncincscsssesessessasssesooes 30

BP ls BUTLER) crescccscescccrccssccccceccesscscssee 30

Magnuson-Stevens Fishery Conservation and

Management Act, 16 U.S.C. § 1801 et segq.:

SE i crseccnsinbtinnnnnsoaennconneces 32

National Environmental Policy Act, 42 U.S.C. §

SII cd libicadentdicehentenessoscuibeeseesescesescosecsenses 29

Regulations

33 C.F.R.: ,

I I TR... sssiersesusesntnssinsonescees 29

SID. cccnesseesnesunsantasacsnocunnoueees 29

ER 29

sancti dctidtensnncmmbennunsinenaniind 31

Vii

TABLE OF AUTHORITIES (cont.)

Page(s)

ST IIIITIIIES sii asia sbtibiicadniideiahidaiidiaabiigabiciniemada iad 29

ide snnesciidactitrinnseinindeipnensinaciiniidemmiemaaaadl 33

i ciscin nrisinnsisstcipnssiticnniiibseniciidilbaiimimmaanal 23

NT RE RR Foe 23, 24

TTT AAT REIT ORNS EAE. 26

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IE TIP x sccccscccccescessccens sinncsdlteininiiailiiiinliguioaniadl 8

dtc cece aceniehinhceninsnaheiaitadinniibbesbaiiid 26

iscsi aesschdcteiinisini esdaeidanadianiaaaene 27

| AN ae e TEE 26

iinet itlaiaidinaaliadl 27

36 C.F.R.:

EI vind isihosnitipnasectopieinseninceniibeiagiiaeniuaiananide 31

40 C.F.R.:

IS CO icesinccccstestineieciiiicipceiliaietadinahieinisenpeiiilails 22

TIT i eisessnsicinainniiseneniaoianinairnnnendeiiidediill 17

TT sin ccisiatsoctetndaeinunbidabindatiansiaaianaal 17

ics nciendetnimniaeeendiianiadadaiandl 26

Rae er ee ee ene 5-6

SN RINE EEIIUOD acciicnccescscvcecnaconcccassnsonesusoens 16

TTT RENT I FS 22

aE mT ER ee 21

I 21

vill

TABLE OF AUTHORITIES (cont.)

ee SE icc cctccssdccnssiscccesesonsetasensed

ask cocicisintensnsieninennndtieieaii

ae cca cael rlatncenatinhanednelily

Se ircniccnsasscerinnnecenedionnmipeimeintinnss

TT ss scccssnncnccisnendocssiguiunaedunsnnnnee

IT snibonsccinsdnicdeniieniiensipientibienionen

TT a ee ena

I cnt geese cinidlisdiilidipdiidaiaiial

iii solic naaicnbdeasialaaleiin

50 C.F.R.:

I i isi cit nnsiscaiseinstnatieentladasiopsioniniin

EE ee Ne

EE ee

Federal Register Notices

Guidelines for Specification of Disposal Sites for

Dredged or Fill Material; Final Rule, 45 Fed.

Reg. 85,636 (Dec. 24, 1980)......................c00cc ee.

TABLE OF AUTHORITIES (cont.)

Page(s)

Ore Mining and Dressing; Point Source Category;

Effluent Limitations Guidelines, Pretreatment

Standards, and New Source Performance

Standards, 53 Fed. Reg. 18,764

ES SS ae 13

Processing of Dep’t of Army Permits; Procedures

for the Protection of Historic Properties,

55 Fed. Reg. 27,003 (June 29, 1990)...................... 31

NPDES Permit Application Regulations for Storm

Water Discharges, 55 Fed. Reg. 47,990

I a seemenesone 15

National Pollutant Discharge Elimination System—

Regulations for Revision of the Water Pollution

Control Program Addressing Storm Water

Discharges, 64 Fed. Reg. 68,722

TE a icin eeolleatalaceainiabeinliideniinsinnnesenianen 14, 15

Final Revisions to the Clean Water Act’s Regulatory

Definitions of “Fill Material” and “Discharge of

Fill Material,” 67 Fed. Reg. 31,129

EASE SPS SR Se 9,11

Processing of Dep’t of the Army Permits; Procedures

for the Protection of Historic Properties, 69 Fed.

Reg. 57,662 (Sept. 27, 2004) ........... eee SL. ae

Reissuance of Nationwide Permits; Final Notice,

72 Fed. Reg. 11,092 (March 12, 2007)................... 18

Compensatory Mitigation of Losses of Aquatic

Resources; Final Rule, 73 Fed. Reg. 19,594

Se 25, 26, 27

TABLE OF AUTHORITIES (cont.)

Page(s)

Other Authorities

Br. for the Federal Resp’ts in Opp’n to Cert. Pet.,

Coeur Alaska, Inc. v. S.E. Alaska Conservation

Council, No. 07-984 (consol. with No. 07-990)

(S. Ct. filed May 14, 2008) .0....... cece eeeeeeeees 13

The Concise Oxford Dictionary of Current English

I nied 8,9

Guidance on Compensatory Mitigation Projects for

Aquatic Res. Impacts Under the Corps Regulatory

Program Pursuant to Section 404 of the Clean

Water Act and Section 10 of the Rivers and

Harbors Act of 1899, Regulatory Guidance

Letter No. 02-2 (Dec. 24, 2002)................cccceceeeeeees 26

Memorandum of Agreement Between the Dep’t

of the Army and the Environmental Protection

Agency, Concerning the Determination of

Mitigation Under the Clean Water Act Section

404(b)(1) Guidelines (Feb. 6, 1990) ....................... 25

Sunding & Zilberman, The Economics of

Environmental Regulation by Licensing: An

Assessment of Recent Changes to the Wetland

Permitting Process, 42 Nat. Resources J. 59

SEITE estiveinliactictinilainiatialibsiantippdigiembigniaiaiinubediiinbibiqnnaginnines 18

TABLE OF AUTHORITIES (cont.)

Page(s)

U.S. E.P.A., Volunteer Estuary Monitoring:

A Methods Manual, EPA-842-B-06-003

(2d ed. March 2006), http://www.epa.gov/owow/

Estuaries/MONITOL ..............ccccceecessscceceesseeeeeeeeeeeeaees 12

U.S. E.P.A., Office of Water, Volunteer Stream

Monitoring: A Methods Manual, EPA 841-B-

97003 (Nov. 1997), http://www.epa.gov/owow/

monitoring/volunteer/stream/ ....................cceecceeeee 12

U.S. E.P.A., Office of Water, Volunteer Lake

Monitoring: A Methods Manual, EPA 440-4-91-

002, http://www.epa.gov/volunteer/lake/

EE EER ATE ee a oa a 12

Want, Law of Wetlands Regulation § 2.6

Si dschakedddiinnsadiaitesdasiianies pilecisdailiiiaipieiemeipnsenaeed 23

INTEREST OF AMICUS CURIAE

The National Association of Home _ Builders

(“NAHB”) has received the parties’ written consent to

file this amicus curiae brief supporting Petitioners. !

NAHB represents over 235,000 builder and associate

members throughout the United States, including

individuals and firms that construct and supply

single-family homes, as well as _ apartment,

condominium, multi-family, commercial and

industrial builders, land developers and remodelers.

As part of the construction and development process,

its members commonly obtain Clean Water Act

(CWA) permits under both sections 402 and 404.

NAHB has thus developed comprehensive familiarity

with the CWA’s permitting regimes and provides

compliance advice to its members.

NAHB frequently participates as a party litigant

and amicus curiae to safeguard the rights and

interests of its members. NAHB was a petitioner in a

CWA case, NAHB v. Defenders of Wildlife, 127 S.Ct.

2518 (2007). Attached at Appendix A to this brief is a

list of cases in which NAHB has participated before

this Court as an amicus curiae or “of counsel,” in a

number of matters involving landowners aggrieved by

over-zealous regulation under a wide array of statutes

and regulatory programs.

! Letters of consent are on file with the Clerk. Pursuant to Rule

37.6 of this Court, amicus states that no counsel for a party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than amicus curiae,

its members, or its counsel made a monetary contribution to its

preparation or submission.

SUMMARY OF ARGUMENT

The nature of the pollutant determines whether a

particular discharge requires a CWA section 402 or

section 404 permit. Section 404 strictly applies to

dredged or fill material, while section 402 reaches

“any” other pollutant. When dirt and sediment are

involved, it is within the expertise of the

Environmental Protection Agency (EPA) and the

Army Corps of Engineers (Corps) to decide which

permit program applies. When sediment is “placed”

at a “specified disposal site” within a jurisdictional

“navigable water,” section 404 controls. But when

sediment moves downstream with water velocity and

remains suspended in or “settles” to the bottom of an

aquatic body, it is an industrial discharge subject to

section 402. Here, the court of appeals stepped

outside its narrow role and decided that Coeur

Alaska’s discharge was from an industrial source that

triggered section 402 requirements. It should have

deferred to the Corps’s determination that the

discharge at issue was more appropriately fill

material, within section 404.

Furthermore, the requirements that attach to each

permit program are mutually exclusive. Congress did

not intend that the requisites to obtain a section 402

permit be imposed on a 404 permit, and vice versa.

For example, the terms and conditions of a section

402 permit for an _ industrial discharge must

incorporate any applicable “effluent limitation

guideline” (ELG). However, neither the Act nor

implementing regulations provide a basis to conclude

that issuance of a section 404 permit depends on

satisfaction of an ELG. It was therefore wrong for the

court of appeals to vacate a section 404 permit

because Coeur Alaska did not satisfy an effluent

guideline for froth-flotation processes.

While ELGs are not a component of the Corps’s

program, by no means should the Court believe that

the section 404 permit process is somehow deficient in

protecting water quality. Quite the opposite. NAHB

hopes that the following description of the applicable

standards, procedures and methods inherent in the

dredged or fill permit process will assist the Court in

understanding just how difficult, time-consuming and

expensive it is for private land owners to obtain

section 404 approval—precisely due to the safeguards

established by the Corps and EPA to preserve the

integrity of aquatic ecosystems.

ARGUMENT

I. THE SPECIFIC TYPE OF POLLUTANT

DETERMINES WHICH CLEAN WATER

ACT PERMIT PROGRAM COVERS A

GIVEN DISCHARGE.

A. Section 404 Permits Cover Dredged or

Fill Material, While Section 402 Permits

Cover “Other” Pollutants.

Section 301(a) makes it illegal to discharge any

pollutant? except in compliance with various CWA

provisions. 33 U.S.C. § 1311(a). One provision that

2 “Discharge of a pollutant” means “(A) any addition of any

pollutant to navigable waters from any point source ....”. 33

U.S.C. § 1362(12)(A).

renders an otherwise illegal discharge permissible is

section 402, which establishes the National Pollutant

Discharge Elimination System (“NPDES”) program.?

Section 402(a)(1) states:

Except as provided in sections 1328 and 1344

of this title, the [EPA] Administrator may,

after opportunity for public hearing, issue a

permit for the discharge of any pollutant, or

combination of pollutants, notwithstanding

section 1311(a) of this title ....

33 U.S.C. § 1342(a\(1) (emphasis supplied). Section

402(a)(1)’s application to discharges of “any pollutant,

or combination of pollutants,” is limited by its opening

clause: “Except as provided in sections 1328 and 1344

of this title ...... Id. The first exception carved-out

from section 402 is section 318, which authorizes EPA

“to permit the discharge of a specific pollutant or

pollutants under controlled conditions associated with

an approved aquaculture project under Federal or

State supervision ....” Jd. § 1328(a). Relevant to this

case, the second «xeeption from section 402 is section

404, which states.

The Secretary may issue permits, after notice

and opportunity for public hearings for the

3 “The (EPA) initially administers the NPDES permitting

program for each State, but a State may apply for a transfer of

permitting authority to state officials.” Natl Ass’n of Home

Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2525, 2531-32

(2007) (holding that EPA lacks discretion and must transfer

NPDES permit issuing authority to a state that satisfies criteria

set forth at section 402(b), 33 U.S.C. § 1342(b)).

5

discharge of dredged or fill material into the

navigable waters at specified disposal sites.

Id. § 1344(a) (emphasis supplied).

The CWA’s text and structure are clear that the

applicable permit program depends on the type of

pollutant discharge at issue. Section 402 is a catch-

all, generically covering discharges of “any” pollutant.

If a pollutant precisely regulated by section 318 or

404 is discharged, then the more exact text applies

instead of section 402. Specific statutory provisions

govern over general ones. See, e.g., Edmond v. United

States, 520 U.S. 651, 657 (1997); Morales v. Trans

World Airlines, Inc., 504 U.S. 374, 384 (1992).

“However inclusive may be the general language of a

statute, it will not be held to apply to a matter

specifically dealt with in another part of the same

enactment.” Fourco Glass Co. v. Transmirra Prods.

Corp., 353 U.S. 222, 228 (1957) (internal quotes

omitted).

Accordingly, section 318—not section 402—covers

“specific pollutants under controlled conditions

associated with an approved aquaculture project.” 33

U.S.C. § 1328. And section 404—not section 402—

covers discharges of “dredged or fill material.” Id. §

1344(a). EPA’s regulations (entirely ignored by the

court of appeals) implement this statutory construct:

The following discharges do not require

NPDES permits:

(b) Discharges of dredged or fill material into

waters of the United States which are

regulated under section 404 of [the] CWA.

40 C.F.R. § 122.3(b).

B. Section 404 Permits Cover Sediment

“Placed” at Specified Disposal Sites, While

Section 402 Permits Cover Sediment

Transported by Flowing Water.

Usually, it is relatively simple to determine

whether a discharge is composed of dredged or fill

material, as opposed to some other pollutant.

“{T]raditional pollutant[s)”—that is, mobile, soluble,

and typically non-solid substances that “readily wash

downstream”—are subject to the NPDES program.

Cf. Rapanos v. United States, 547 U.S. 715, 724

(2006) (plurality). However, the CWA defines

“pollutant” to “cover[{ ] both” solids and non-solids,

and includes “toxic materials such as sewage,

chemical waste, biological material, and radioactive

material and the discharge of dredged spoil, rock,

sand, cellar dirt, and the like.” Id. at 774 (Kennedy,

J., concurring in the judgment). See also id. at 807

(Stevens, J., dissenting) (regulation of “alluvium” and

“silt” which “make[ } [their] way downstream” require

a CWA permit).

4 “The term ‘pollutant’ means dredged spoil, solid waste,

incinerator residue, sewage, garbage, sewage sludge, munitions,

chemical wastes, biological materials, radioactive materials,

heat, wrecked or discarded equipment, rock, sand, cellar dirt and

industrial, municipal, and agricultural waste discharged into

water.” 33 U.S.C. § 1362(6).

To ascertain what CWA program applied to Coeur

Alaska’s discharge, the court of appeals almost

exclusively focused on that bit of the agencies’

regulation defining “fill material” as that which “has

the effect of ... changing the bottom elevation” of a

jurisdictional waterbody. 33 C.F.R. § 323.1(e)(ii).

This regulatory definition does not provide a complete

answer to the question of which permit program

properly manages sediment discharges. Indeed, all

grains of dirt and alluvium can fall to the bed of an

aquatic feature and alter its elevation. Correctly, the

agencies have never implemented the Act in such a

manner to always treat sediment as fill.

NAHB submits that the language in section 404

itself, and a separate regulatory definition of the

phrase “discharge of fill material,” provide substantial

assistance in determining which permit program

covers sediment in any given situation. Whether

section 402 or 404 governs depends on the difference

between the placement of dirt at specified disposal

sites, as opposed to the settling of solids suspended in

water. The CWA states that section 404 should apply

to discharges of material “into the navigable waters

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

(emphasis supplied). A specified disposal site is thus

a more exact location within a waterbody subject to

the Act’s jurisdiction. Furthermore, section 404

permits must identify that precise locus where fill is

discharged: ‘“{E]ach such disposal site shall be

specified for each such permit ....”. Id. § 1344(b).

Congress also gave EPA authority “to prohibit the

specification of any defined area as a disposal site ....”

Id. § 1344(c).

The agencies’ current regulatory definition of

“discharge of fill material” is consonant with

Congress’s conception of dirt discharged at specific,

defined sites within jurisdictional waters:

The term “discharge of fill material”

generally includes, without limitation, the

following activities: Placement of fill that is

necessary for the construction of any structure

or infrastructure in a water of the United

States; ... placement of fill material for

construction or maintenance of any liner,

berm, or other infrastructure associated with

solid waste landfills; placement of overburden,

slurry, or tailings or similar mining-related

materials ....

33 C.F.R. § 323.2(f) (emphasis supplied). The

ordinary meaning of “placement” is “an act or

instance of placing”; the verb “place” means “to put in

a particular place ... to direct to a desired spot.”

Webster’s New Collegiate Dictionary, at 876 (1975).5

Accordingly, when dirt or sediment is “placed” in a

particular spot (to use Congress’s term, “at specified

disposal sites”), then a discharge of fill material has

occurred. In such instances, section 404 applies and

the discharger who places fill must obtain a Corps

permit.

In contrast, Congress did not require NPDES

permits to specify disposal sites. Section 402 is

designed to regulate sediment discharges that are not

* See also The Concise Oxford Dictionary of Current English, at

925 (5th ed. 1964) (“place” means “Put (thing, etc.) in particular

place; arrange (set of things) in their proper places”).

9

placed in or directed to any defined site within a

statutory “navigable water.” In other words, dirt that

flows with water and remains suspended® in or

“settles”? atop the bed of a jurisdictional feature is

appropriately within NPDES purview. The agencies

themselves have drawn this distinction:

Recognizing that some discharges (such as

suspended or settleable solids) can have the

associated effect, over time, of raising the

bottom elevation of a water due to the settling

of waterborne pollutants, we do not consider

such pollutants to be “fill material” ....

Final Revisions to the Clean Water Act Regulatory

Definitions of “Fill Material” and “Discharge of Fill

Material,” 67 Fed. Reg. 31,129, 31,135 (May 9, 2002)

(Fill Rule) (emphasis supplied).

C. Courts Must Defer to the Agencies’

Expertise in Deciding Whether a

Particular Discharge is Fill Material or

Some “Other” Pollutant, and Accordingly

Which Permit Program Should Apply.

The salient point is that EPA relies on section 402

to regulate solid material like sediment moved by

6 The CWA provides that "suspended solids,” such as sediment,

is a “conventional pollutant.” 33 U.S.C. § 1314(a)(4).

7 “Settle” is defined as “to seat, bring to rest, come to rest ...to

clarify by causing dregs or impurities to sink ....”. Webster’s New

Collegiate Dictionary, at 1061 (1975). See also The Concise

Oxford Dictionary of Current English, at 1162 (5% ed. 1964)

(“settle” means “cease from wandering or motion or change or

disturbance or turbidity (often down)” (italics original).

10

hydro-velocity, which remains suspended in a

waterbody or sinks to its bottom. On the other hand,

the Corps implements section 404 to regulate

sediment “placed” at a “specified disposal site.”

Whether a discharge of sediment is more likely to

move downstream with flowing water, or placed in a

particular spot, “is a classic example of a factual

dispute the resolution of which implicates substantial

agency expertise.” Marsh v. Or. Natural Resources

Council, 490 U.S. 360, 376 (1989) (upholding Corps

decision as not “arbitrary and capricious” under the

Administrative Procedure Act). See also Balt. Gas &

Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87,

103 (1983) (“When examining this kind of scientific

determination ... a reviewing court must generally be

at its most deferential”); Kleppe v. Sierra Club, 427

U.S. 390, 412 (1976) (where analysis “requires a high

level of technical expertise,” court must defer to “the

informed discretion of the responsible federal

agencies”).

This case boils down to agency deference. The

Corps decided that Coeur Alaska’s discharge was “fill”

not only due to the fact that it raised the bottom

elevation of Lower Slate Lake, but further because

“1,440 tons of tailings ... in the form of a slurry”

would be placed in the lake “each day.” S.E. Alaska

Conservation Council v. U.S. Army Corps of Eng’rs,

486 F.3d 638, 642 (9th Cir. 2007). The agency was

best positioned to decide that Coeur Alaska needed a

section 404 permit; the court of appeals improperly

afforded that determination no deference whatsoever,

by concluding that the company committed a

“discharge of pollutants from industria) or municipal

11

sources,” to trigger section 402 permit requirements.

Id. at 646.8

More critically, there was no _ statutory or

regulatory basis for the court of appeals to conclude

that the Corps could use a section 404 permit as a

vehicle to enforce EPA’s effluent limitation guideline

for froth-flotation mills. As the agencies have stated

in rulemaking, their “existing approach” is to regulate

pollutants:

under either section 402 or 404 of the CWA.

Effluent limitation guidelines and new source

performance standards (“effluent guidelines”)

promulgated under section 304 and 306 of the

CWA establish limitations and standards for

specified wastestreams from __ industrial

categories, and those’ limitations and

standards are incorporated into permits issued

under section 402 of the Act. EPA has never

sought to regulate fill material under effluent

guidelines.

Fill Rule, 67 Fed. Reg. at 31,135 (emphasis supplied).

Thus, the Corps should have received deference for

its decision that Coeur Alaska’s discharge was fill

material “placed” at a specified disposal site. This is

especially so, because EPA did not otherwise conclude

that Coeur Alaska’s’ discharge was more

® Through section 402(p), 33 U.S.C. § 1342(p), Congress has

created a program for municipal and industrial discharges of

sediment suspended in stormwater under the NPDES program.

Infra at 14-16. Notably, it did not create the program under the

auspices of section 404.

12

appropriately subject to section 402. EPA is

accustomed to addressing suspended or settleable

sediment,’ which is significantly different in nature

than dirt “placed” at a defined disposal site. In other

situations, EPA has surely exercised its expertise and

authority to determine that a discharge from a

mining site is “any” other pollutant constituting

suspended or settleable solids. In those cases an

NPDES permit would be needed, which must

incorporate relevant effluent limitation guidelines

such as the froth flotation limitation at issue in this

9 See EPA, Volunteer Estuary Monitoring: A Methods Manual,

Second Edition, EPA-842-B-06-003 (2d ed. March 2006), at 15-3,

available at http://www.epa.gov/owow/estuaries/monitor/ (last

visited Sept. 3, 2008) (“Suspended materials such as sand, soil,

or silt tend to settle out faster in brackish water than in fresh

water. These particles settle to the estuary bottom, where they

smother fish eggs and bottom-dwelling animals, and alter the

habitat needed by estuary plants and animals”); EPA, Office of

Water, Volunteer Stream Monitoring: A Methods Manual, EPA

841-B-97003 (Nov. 1997), § 5.8, available at

Jiwww onitoring/v /stream/ (last

visited on Sept. 3, 2008) (“Total solids are dissolved solids plus

suspended and settleable solids in water .... Suspended solids

include silt and clay particles, plankton, algae, fine organic

debris, and other particulate matter. These are particles that

will not pass through a 2-micron filter”); EPA, Office of Water,

Volunteer Lake Monitoring: A Methods Manual, EPA 440-4-91-

002, § 2.E at 17, available at

http://www.epa.gov/volunteer/lake/lakevolman.pdf (last visited

on Sept. 3, 2008) (“Not all sediment particles quickly settle to the

lake bottom. The lighter, siltier particles often stay suspended in

the water column or settle so lightly on the bottom that they can

be easily stirred up and resuspended even with slight water

motion .... Sediment blocks light from penetrating the water

column. It also interferes with the gills of fish ....”) (emphasis

supplied to all).

13

case. Indeed, the Federal Register preamble to that

very effluent guideline provides:

The ... limitations ... in this regulation will be

applied to individual gold placer mines

through NPDES permits issued by EPA or

approved state agencies, under section 402 of

the Act. These requirements do not apply to

individual discharges until incorporated into

NPDES permits. As discussed in the

preceding section of this preamble, these

limitations must be applied in all Federal and

States NPDES permits except to the extent

that variances and modifications are expressly

authorized.

Ore Mining and Dressing; Point Source Category;

Effluent Limitations Guidelines, Pretreatment

Standards, and New Source Performance Standards,

53 Fed. Reg. 18,764, 18,787 (May 24, 1988) (emphasis

supplied).

Moreover, a single discharge of water containing

sediment cannot simultaneously be subject to two

permit programs. That result would improperly

“conflate” the CWA’s “two separate permitting

mechanisms... governing different discharges,

subject to different protective requirements ....” Br.

for the Federal Resp’ts in Opp’n to Cert. Pet. at 6-7,

Coeur Alaska, Inc. v. S.E. Alaska Conservation

Council, No. 07-984 (consul. with No. 07-990) (S. Ct.

filed May 14, 2008). Regulatory havoc would

certainly ensue if both EPA (or a state to which

14

NPDES authority has been transferred) and the

Corps each must permit the very same discharge. !°

In sum, one of the most fundamental decisions

that the Corps and EPA must make is whether an

activity discharges either placed “fill material” or

“any” other pollutants such as settleable sediment.

How could that decision possibly be the prerogative of

federal judges? The court of appeals should be

reversed for not deferring to the Corps’s

determination that section 404 controlled the mining

activity in this case.

D. EPA’s Comprehensive Section 402

Program for Stormwater Runoff is

Designed to Control Sediment That Moves

With Flowing Water (as Opposed to Fill

Placed in a Specific Location).

By way of example, EPA’s regulatory practice in

using section 402 to control sediment suspended in

liquid is best evidenced through its complex, two-

phase program covering stormwater runoff. The

NPDES program was initially enacted in 1972 and

proved successful in imposing “pollution control

‘© This is not to say that two discharges of different pollutants,

at a single facility, might not require separate permits under

each program. For example, NAHB members must obtain

NPDES permit coverage for discharges of sediment in

stormwater from construction sites at least one acre in size.

Infra at 16. In addition, if construction activity at that same site

requires a discharge of fill material into jurisdictional wetlands,

the home builder must also obtain a section 404 permit. But the

agencies have never required the home builder in this scenario

to obtain four permits—that is, section 402 and 404 permits for

the stormwater discharge, and both again for the wetlands fill.

15

measures for industrial process wastewater and

municipal sewage ....”. National Pollutant Discharge

Elimination System—Regulations for Revision of the

Water Pollution Control Program Addressing Storm

Water Discharges, 64 Fed. Reg. 68,722, 68,723 (Dec.

8, 1999) (Phase II Rule). Congress later thought more

was needed to protect water quality, and directed

EPA to study and control “storm water runoff

draining large surface areas ....” Id. Thus, “[i]n 1987,

to better regulate pollution conveyed by stormwater

runoff, Congress enacted [CWA] § 402(p), 33 U.S.C. §

1342(p).” Envtl. Def. Ctr. v. EPA, 344 F.3d 832, 841

(9th Cir. 2003), cert. denied, 541 U.S. 1085 (2004)

(Environmental Defense).

Starting in 1990 and under the authority of

section 402(p), EPA developed an entirely new (and

by now massive) regulatory program to control

sediment transported by stormwater. First, EPA

required NPDES permits for stormwater discharges

from “large” municipalities generally serving

populations of 100,000 persons or more, as well as

several industrial categories including construction

activities at sites disturbing five or more acres of

land. See NPDES Permit Application Regulations for

Storm Water Discharges, 55 Fed. Reg. 47,990 (Nov.

16, 1990) (Phase I Rule). Nine years later, EPA

followed with the Phase II Rule, expanding NPDES

stormwater requirements to smaller municipalities in

urbanized areas, as well as construction sites that

disturb one and up to five acres of land. Phase II

Rule, 64 Fed. Rez. at 68,723.1!

‘1 The legislative and regulatory history of the federal

stormwater regime is discussed in Environmental Defense, 344

16

Suffice it to say that EPA governs a realm of ever-

expanding permit requirements for discharges of silt

and dirt moved by water, but not placed anywhere in

particular. It has done this under the rubric of section

402. Thousands of pages of EPA regulations and

“guidance” exist to address sediments transported by

stormwater. From NAHB’s perspective, the NPDES

stormwater program affects virtually all residential

development projects in the United States, as it

applies to every construction site one acre or larger.

EPA’s stormwater regulations even apply to a house

built on a single lot, if it is part of a subdivision that

exceeds the one-acre threshold.!2

To conclude, the Corps and EPA are best suited to

determine whether the nature of a_ sediment

discharge is more appropriately regulated under

section 402 or section 404. The court of appeals

should have accepted the Corps’s decision that Coeur

Alaska’s discharge was the placement of fill material

covered by section 404—to which section 402 permit

conditions promulgated by EPA had no application.

The court of appeals should thus be reversed.

F.3d at 841-844, and Tex. Indep. Prods. & Royalty Owners Ass’n

v. EPA, 410 F.3d 964, 967-68 (7th Cir. 2005).

"2 See 40 C.F.R. § 122.26(b)(15)(i) (“small construction activity”

requiring an NPDES permit “includes the disturbance of less

than one acre of total land area that is part of a large common

plan of development or sale if the large common plan will

ultimately disturb equal to or greater than one...acre[}”).

17

Il. THE STRINGENT REQUIREMENTS OF

THE SECTION 404 PERMIT PROGRAM

ADEQUATELY PROTECT WATER

QUALITY.

It is irrational to apply EPA’s effluent limitation

guidelines to fill material. By their very nature,

ELGs are designed to regulate the pollutant

concentrations in effluent—an aqueous substance—

and not in fill material—a solid substance. Rather,

the safeguards built into the section 404 process; the

complicated regulations that have multiplied

thereunder; and the arcane (if not downright bizarre)

manner in which the program has been implemented

by the agencies and interpreted by the courts,

demonstrate that the regulators place paramount

emphasis on water quality and _ environmental

protection as they administer dredged or fill permits.

While Congress vested the Corps with the

responsibility to issue section 404 permits (33 U.S.C.

§ 1344(a)(1)), EPA retains a major oversight role. It

was given authority to develop “guidelines” (actually

rules) governing the discharge of dredged or fill

material. Jd. § 1344(b)(1). The so-called “404(b)(1)

guidelines” establish the core permitting standards

that the Corps and applicants must follow. See 45

Fed. Reg. 85,636 (Dec. 24, 1980) (discussed infra at

19-23). Among other things, these guidelines regulate

the types of materials that can be used for fill

purposes in order to protect water quality. See

generally 40 C.F.R. pt. 230, subpts. G, H. EPA can

also veto Corps permits if the proposed discharge

“will have an unacceptable adverse effect on

municipal water supplies, shellfish beds and fishery

18

areas (including spawning and breeding areas),

wildlife or recreational areas.” 33 U.S.C. § 1344(c).

Finally, EPA has independent enforcement authority

under section 404. 7d. § 1319.

Before discussing the extensive permit procedures

and standards which the agencies and applicants

must follow to receive a Corps permit, another

introductory point warrants emphasis: The section

404 process is long and expensive. “The average

applicant for an individual [404] permit spends 788

days and $271,596 in completing the process, and the

average applicant for a nationwide permit spends 313

days and $28,915—not counting costs of mitigation or

design changes .... ‘Over $1.7 billion is spent each

year by the private and public sectors obtaining

wetlands permits.” Rapanos, 126 S.Ct. at 2214

(plurality) (citing Sunding & Zilberman, The

Economics of Environmental Regulation by Licensing:

An Assessment of Recent Changes to the Wetland

Permitting Process, 42 Nat. Resources J. 59,.74-76, 81

(2002)). Individual!’ section 404 permits are subject

to numerous requirements which conceptually fall

'3 Aside from project-specific individual permits issued on a case.

vy-case basis, the Corps can also issue general permits. These

are accomplished on a state, regional or nationwide basis, for

“any category of activity,” where the discharge of dredged or fill

material “will cause only minimal adverse environmental

effects” both separately and cumulatively. 33 U.S.C. §1344(e)(1).

Coeur Alaska’s discharge was not processed under a general

permit, so NAHB will only discuss the standards and procedures

for individual permits. It should be noted, however, that no

discharge that otherwise qualifies for a nationwide permit is

allowed unless conditions to protect water quality are satisfied.

Reissuance of Nationwide Permits; Final Notice, 72 Fed. Reg

11,092, 11,194 (March 12, 2007) (General Condition 21).

19

into two broad categories: (1) those imposed by the

CWA itself, and agency regulations and policies

specifically designed to protect water resources; and

(2) those arising from the Corps’s obligation to comply

with other laws.

A. Requirements Imposed by the Clean

Water Act and Agency Regulations.

Before the Corps issues a section 404 individual

permit, it must follow four primary requirements

which derive from the CWA and agency regulations:

(1) the discharge must comply with EPA’s 404(b)(1)

guidelines; (2) the discharge must be considered

under the Corps’s “public interest review” criteria; (3)

the impact on jurisdictional waters must be mitigated

to offset the loss of aquatic functions and values; and

(4) all Corps permits must be certified under section

401 by the state in which the discharge occurs, as

complying with water quality standards. Each

element is discussed in turn below.

1. 404(b)(1) Guidelines.

The CWA provides that Corps permits must

satisfy “guidelines” developed by EPA. 33 U.S.C. §

1344(b). EPA’s 404(b)(1) guidelines contain a number:

of restrictions to ensure that the discharge of dredged

or fill material does not adversely affect water

quality.

For example, the guidelines’ subpart G provides

standards and procedures for evaluating and testing

the material for contaminants. Among other things,

these provisions require that “the extraction site shall

be examined ... to assess whether it is sufficiently

20

removed from sources of pollution to provide

reasonable assurance that the proposed discharge

material is not a carrier of contaminants ....” 40

C.F.R. § 230.60(b). Testing approaches and

procedures are in place to address “potential effects”

that the discharge of contaminated dredged or fill

material might have “on the water column and on

communities of aquatic organisms.” Id. § 230.61(b).

Additionally, subpart H provides myriad techniques

to minimize the adverse effects of discharges, such as

by the “choice of the disposal site,”!4 the “treatment

of, or limitations on the material itself,”5 and

measures to control post-discharge effects.'6 These

are only a few of the items contained in subparts G

and H to protect water quality as part of the section

404 permitting process.

In addition, the 404(b)(1) guidelines require a

careful evaluation of the project site where fill is

discharged. They provide that “({nlo discharge of

4 40 C.F.R. § 230.70. For example, adverse effects can be

minimized by “[lJocating and confining the discharge to minimize

the smothering of organisms,” and “[djesigning the discharge to

avoid a disruption of periodic water inundation patterns.” Id. §

230.70 (a), (b).

'5 Td. § 230.71. For example, adverse effects can be minimized

by “laldding treatment substances to the discharge material,”

and “(uJtilizing chemical flocculants to enhance the deposition of

suspended particulates ....” Id. § 230.7 1(c), (d).

16 Jd. § 230.72. For example, adverse effects after the discharge

has occurred can be minimized by “(clapping in-place

contaminated material with clean material,” and “[t]iming the

discharge to minimize impact, for instance during periods of

unusual high water flows, wind, wave, and tidal actions.” Id. §

230.72(b), (d).

21

dredged or fill material shall be permitted if there is a

practicable alternative to the proposed discharge

which would have less adverse impact upon the

aquatic ecosystem, so long as the alternative does not

have other significant adverse environmental

consequences.” 40 C.F.R. § 230.10(a) (emphasis

supplied); Bering Strait Citizens for Responsible Res.

Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 947

(9th Cir. 2008). These guidelines further explain:

[A]n alternative is practicable if it is available

and capable of being done after taking into

consideration cost, existing technology, and

logistics in light of overall project purposes. If

it is otherwise a practicable alternative, an

area not presently owned by the applicant

which could reasonably be obtained, utilized,

expanded or managed in order to fulfill the

basic purpose of the proposed activity may be

considered.

40 C.F.R. § 230.10(a)(2) (emphasis supplied). In other

words, to arrive at’ the least environmentally

damaging alternative for a project, one of the

alternatives that must be assessed before a section

404 permit will issue is an offsite alternative, which

looks at other locations to accomplish the project’s

purpose. Applicants thus evaluate different

properties they do not own, which would not involve

any discharge to jurisdictional waters.

Moreover, the 404(b)(1) guidelines contain a

critical presumption against filling “special aquatic

22

sites,” such as wetlands.!? Corps regulations provide

that where the “basic purpose” of a project is not

“water dependent” (such as to provide housing) and

does not require proximity to or siting within a

wetland,

practicable alternatives that do not involve

special aquatic sites are presumed to be

available, unless’ clearly demonstrated

otherwise. In addition, where a discharge is

proposed for a special aquatic site, all

practicable alternatives to the proposed

discharge which do not involve a discharge

into a special aquatic site are presumed to

have less adverse impact on the aquatic

ecosystem, unless’ clearly demonstrated

otherwise.

Id. § 230.10(a)(3). (emphasis supplied). Thus, when

the Corps considers an individual section 404 permit

application, it must presume that other less-

damaging and more environmentally preferable

alternatives exist when the proposed discharge is into

a special aquatic site (like wetlands). Guidelines for

Specification of Disposal Sites for Dredged or Fill

Material; Final Rule, 45 Fed. Reg. 85,336, 85,339

(Dec. 24, 1980). If a project proposes a discharge into

wetlands, the number of alternatives and the level of

scrutiny applied to each alternative are substantially

'’ Regulations define “special aquatic sites” as “geographic areas,

large or small, possessing special ecological characteristics of

productivity, habitat, wildlife protection, or other important and

easily disrupted ecological values,” including’ wetlands,

sanctuaries, refuges, mud flats, coral reefs, pool complexes, and

vegetated shallows. 40 C.F.R. § 230.3(q-1); id. pt. 230, subpt. E.

23

greater. Utahns for Better Transp. v. U.S. Dep’t of

Transp., 305 F.3d 1152, 1163 (10th Cir. 2002).

In sum, the 404(b)(1) guidelines, including

restrictions on the material used as fill, the

requirement for assessing alternatives to the

proposed discharge, and the presumption against

projects that would fill wetlands and other special

aquatic sites, provides significant protection of water

quality.

2. Public Interest Review.

If the Corps finds that an application complies

with the 404(b)(1) guidelines, a permit “will be

granted unless the district engineer determines that

it would be contrary to the public interest.” 33 C.F.R.

§ 320.4(a); Bering Strait, 524 F.3d at 948. The public

interest review regulations have a curious history in

that they predate the CWA and are not specifically

authorized by the Act. While the review itself has not

been invalidated by any court, the breadth of that

evaluation has been questioned. See generally Want,

Law of Wetlands Regulation § 2.6 (2008)

(development of public interest review under the

Rivers and Harbors Act of 1899); seé also Mall Props.

vu. Marsh, 672 F. Supp. 561, 565-566 (D. Mass. 1987).

The public interest review includes “an evaluation

of the probable impacts, including cumulative

impacts, of the proposed activity and its intended use

on the public interest.” 33 C.F.R. § 320.4(a)(1). The

regulations indicate that a permit will be granted

unless it is contrary to the public interest, with the

huge qualification that the permit must comply with

24

the 404(b)(1) guidelines. The scope of the review is

staggering:

Evaluation of the probable impact which the

proposed activity may have on the public

interest requires a careful weighing of ail

those factors which become relevant in each

particular case. The benefits which

reasonably may be expected to accrue from the

proposal must be balanced against its

reasonably foreseeable detriments. The

decision whether to authorize a proposal, and

if so, the conditions under which it will be

allowed to occur, are therefore determined by

the outcome of this general balancing process.

That decision should reflect the national

concern for both protection and utilization of

important resources. All facters which may be

relevant to the proposal must be considered

including the cumulative effects thereof: among

those are conservation, economics, aesthetics,

general environmental concerns, wetlands,

historic properties, fish and wildlife values,

flood hazards, floodplain values, land use,

navigation, shore erosion and_ accretion,

recreation, water supply and conservation,

water quality, energy needs, safety, food and

fiber production, mineral needs, considerations

of property ownership and, in general, the

needs and welfare of the people.

Id.; Bering Strait, 524 F.3d at 948-949 (the Corps

properly weighed the public interest by considering

significant environmental and economic issues

relating to the permitted activity).

25

In short, the Corps’s public interest review criteria

provide yet another institutional safeguard to ensure

protection of water and ecosystem quality in the

section 404 process.

3. Mitigation.

“Mitigation” refers to the permit applicant’s

obligation to offset the adverse environmental

consequences of the proposed discharge of dredged or

fill material.'® Agency policy speaks in terms of a

permitting “sequence” of avoidance, minimization and

compensation. See Memorandum of Agreement

Between the Department of the Army and the

Environmental Protection Agency, Concerning the

Determination of Mitigation Under the Clean Water

Act Section 404(b)(1) Guidelines (Feb. 6, 1990).

Permit sequencing means that in reviewing an

application, the Corps must first ensure that

jurisdictional waters are avoided to the maximum

extent practicable (generally accomplished through

the alternatives analysis requirement). Next, the

impact of any allowable discharges must be

minimized (such as through the subpart G and H

criteria discussed above). Only after aquatic impacts

are avoided and then minimized does mitigation come

into play. In virtually every permit scenario, the

applicant must compensate for the loss of waters

occasioned by the discharge. The “avoid, minimize,

mitigate” sequencing is codified at 33 C.F.R. §

18 In fiscal year 2005, the Corps authorized 20,754 acres of

witland impacts, and required 56,693 acres of compensatory

mitigation. See Compensatory Mitigation for Losses of Aquatic

Resources; Final Rule, 73 Fed. Reg. 19,594, 19,603 (Apr. 10,

2008).

26

320.4(r)(1), and has been retained in a_ recent

compensatory mitigation rule. See Compensatory

Mitigation for Losses of Aquatic Resources; Final

Rule, 73 Fed. Reg. 19,594, 19,671 (Apr. 10, 2008) (to

be codified at 33 C.F.R. § 332.2 (definition of

compensatory mitigation)) (Mitigation Rule).

The goal of mitigation is to implement the general

national policy of “no net loss” of aquatic functions

and values. The new, comprehensive Mitigation Rule

locks into regulation the “no net loss” standards that

have evolved over time. 73 Fed. Reg. at 19670 (to be

codified at 33 C.F.R. pt. 332 and 40 C.F.R. pt. 230,

subpt. J.) See also Guidance on Compensatory

Mitigation Projects for Aquatic Resource Impacts

Under the Corps Regulatory Program Pursuant to

Section 404 of the Clean Water Act and Section 10 of

the Rivers and Harbors Act of 1899, Regulatory

Guidance Letter No. 02-2 (Dec. 24, 2002).

Compensatory mitigation is one of the most

challenging aspects of a_ section 404 permit

application. Compensating for lost functions and

values is generally accomplished through one or a

combination of: (a) restoration of degraded aquatic

areas; (b) enhancement of existing aquatic areas (such

as raising the functions of an area that is already

aquatic but not degraded); (c) establishment (also

called “creation”) of new aquatic areas; and (d)

preservation of existing resources. 33 C.F.R. §§ 332.2,

332.3(a)(2).!9 Each of these methods can be executed

through three basic approaches: (a) purchase of

'8 There are parallel cites to the Corps’ compensatory mitigation

regulations in the EPA 404(b)(1) Guidelines at 40 C.F.R. pt. 230,

subpt. J.

27

credits in a mitigation bank (i.e., a facility that has

restored or created wetlands or other aquatic areas in

advance); (b) payment of an in-lieu fee to an entity

that will use the money to restore or create wetlands

or other aquatic resources; or (c) development and

implementation of a “permittee-responsible”

mitigation plan. That plan could be accomplished

onsite or offsite (preferably within the same

watershed) and could be in-kind (addressing the same

kind of aquatic resources impacted, which is

preferred) or in some circumstances, out-of-kind

(particularly if the resources that are being addressed

through the plan are of higher function or value than

the resources impacted). See generally id. § 332.3.

Historically, the Corps and EPA operated under a

number of policies that encouraged permittee-

sponsored, on-site, in-kind mitigation projects.

Because of the concern over the success of such

projects and the tendency to create isolated

mitigation parcels surrounded by or adjacent to

development activities, the Mitigation Rule creates a

new hierarchy of preferences: Mitigation banks are

the most preferred, followed by in-lieu fee programs,

and then permittee-responsible mitigation.

Mitigation Rule, 73 Fed. Reg. at 19,673-74 (to be

codified at 33 C.F.R. § 332.3(b)(2)).

Accordingly, mitigation requirements incorporated

into virtually every section 404 permit provide further

assurances to safeguard, and often improve, water

quality.

28

4, Section 401 Water Quality

Certification.

There is more. CWA section 401 requires that

before any federal permit can be issued under the Act,

the applicant must secure from the state in which the

activity occurs a certification that the discharge does

not cause or contribute to a violation of state water

quality standards. 33 U.S.C. § 1341(a)(1). See S.D.

Warren Co. v. Me. Bd. of Envitl. Prot., 547 U.S. 370,

374-375 (2006) (discussing section 401 process, and

affirming certifications of Maine agency requiring

hydropower company to maintain minimum stream

flows for dam operations). The water quality

certification is generally secured from the state

pollution control agency except in cases where that

agency does not have authority to act (such as on

Indian reservations), in which case EPA must provide

certification. States (or EPA as the case may be) have

discretion to impose a broad range of requirements

pursuant to section 401 certification, so long as the

requirements are related to an effluent limitation or

state law requirement designed to protect water

quality. PUD No. 1 of Jefferson County v. Wash. Dep’t

of Ecology, 511 U.S. 700 (1994) (upholding minimum

stream flow requirement imposed as part of

certification of a federal permit for a hydroelectric

facility as necessary to comply with state water

quality standards).

Accordingly, required section 401 certifications

provide further, ample protection of water quality

when the Corps issues a section 404 permit.

29

B. Requirements Imposed by the Corps’s

Obligation to Comply with Other Laws.

All of the items discussed above, triggered every

time the Corps considers an individual section 404

permit application, derive from the CWA and agency

regulations designed to _ protect jurisdictional

“navigable waters.” Additional obligations borne by

the Corps external to the CWA must also be followed,

providing yet more layers of protection for the broader

aquatic ecosystem. Space limitations allow for only

the most cursory itemization of these additional

agency obligations, which have spawned their own

legions of regulations, guidance, and jurisprudence.

1. National Environmental Policy Act

(NEPA).

NEPA requires federal agencies, including the

Corps, to consider the environmental impact of their

actions. 42 U.S.C. § 4321, et seg. Major federal

actions. significantly affecting the environment

require preparation of an Environmental Impact

Statement (EIS). As part of the permit review

process, the Corps is directed to prepare an

environmental assessment (EA) “as soon as

practicable after all relevant information is available

...” 33 C.F.R. pt. 325 app. B, § 7(a). If the EA

concludes that the issuance of the permit will

significantly affect the environment, then a full-blown

EIS must be prepared. Id. §§ 7, 8. If the Corps

determines that issuance of the permit will not have a

significant environmental impact, it issues a Finding

of No Significant Impact (FONSI). 33 C.F.R. §

230.11; id. pt. 325 app. B, § 7. The large majority of

section 404 permits are processed by an EA rather

30

than an EIS. But of course, the NEPA process which

the Corps must conduct is supplemental to the

project-specific alternatives analysis, public interest

review, mitigation assessment, and water quality

certification that attends to every section 404

individual permit.

2. Endangered Species Act (ESA).

The Corps must also comply with its obligations

under the ESA prior to issuing a permit. ESA section

7 requires federal agencies to consult with the U.S.

Fish and Wildlife Service (FWS), or the National

Marine Fisheries Service (NMFS), to insure that any

action authorized by the agency is not likely to

jeopardize the continued existence of any endangered

or threatened species, or destroy or adversely modify

designated critical habitat. 16 U.S.C. § 1536(a)(2).

Federal actions may not proceed if they would either

jeopardize the existence of a listed species or

adversely modify critical habitat. See, e.g., Tenn.

Valley Auth. v. Hill, 437 U.S. 153 (1978) (enjoining

construction of the Tellico Dam because it would have

resulted in extinction of the Snail darter).

If the proposed federal action (such as issuance of

a Corps permit) “may affect” listed species or critical

habitat, the federal agency initiates consultation with

FWS or NMFS. 50 C.F.R. § 402.14(a). If a “jeopardy”

or “adverse modification” opinion results from the

consultation, FWS (or NMFS) will include reasonable

and prudent alternatives to the agency’s proposed

action in order to avoid and minimize harm to

endangered wildlife and habitat. 16 U.S.C. §

1536(b)\3)A); 50 C.F.R. § 402.14(h)\(3). If no such

alternative is available and a “jeopardy” opinion is

31

issued, then the agency may proceed, but it does so at

its peril. Bennett v. Spear, 520 U.S. 154, 158, 169-70

(1997). Unlike NEPA review which only requires

agencies to conduct an analytical process, ESA

consultation imposes a substantive limitation on the

ability of federal agencies to act.

Thus, when the Corps issues a section 404 permit,

it must consider the effects of allowing the discharge

on endangered species and designated critical habitat.

3. National Historic Preservation Act

(NHPA).

In addition to protecting wildlife resources, the

Corps must protect historic resources through NHPA

consultation. Section 106 of the NHPA requires any

federal agency “undertaking” (like a Corps 404

permit) to “take into account the effect of the

undertaking on any district, site, building, structure

or object that is included in or eligible for inclusion in

the National Register,” before approving the project.

16 U.S.C. § 470(f); 36 C.F.R. § 800.2(a). This is done

through coordination with the applicable State

Historic Preservation Office (SHPO) and _ with

interested Indian tribes. NHPA requirements are

notorious sources of delay for processing 404 permits

because of the extremely bureaucratic approach to

identifying, assessing and addressing potential

historic properties (also called “cultural resources” in

a more generic sense). The Corps adopted its own set

of NHPA regulations in 1990 (33 C.F.R. pt. 325 app.

C, 55 Fed. Reg. 27,003 (June 29, 1990)), and has

launched an effort to revise them to reflect changes in

regulations enacted by the Advisory Council on

32

Historic Preservation in recent years. 69 Fed. Reg.

57,662 (Sept. 27, 2004) (advance notice of proposed

rulemaking for revising Appendix C).

4. Other Laws.

When the Corps issues a section 404 permit that

could adversely affect “essential fish habitat,”

designated in regional fishery management plans

throughout the country, it must consult with the

NOAA Fisheries Service, a subagency in the

Department of Commerce. Magnuson-Stevens

Fishery Conservation and Management Act, 16

U.S.C. 1801 et seq.; id. § 1855(b)(2) (federal agency

consultation requirement). NOAA Fisheries can offer

“conservation recommendations” as conditions to the

section 404 permit which, if not adopted by the Corps,

must be explained in writing. See generally 50 C.F.R.

§ 600.905 (essential fish habitat consultation

procedures). Additionally, FWS and state wildlife

agencies have authority to comment on section 404

permits pursuant to the Fish and _ Wildlife

Coordination Act, 16 U.S.C. § 661, et seq. A number

of other laws that could be triggered in the 404

process include Section 307(c) of the Coastal Zone

Management Act, 16 U.S.C. § 1456(c); the Marine

Mammal Protection Act, 16 U.S.C. § 1361 et seg.; and

Section 7(a) of the Wild and Scenic Rivers Act, 16

U.S.C. § 1278, et seg. A list of such laws typically

implicated in the section 404 permitting process is

found at 33 C.F.R. § 320.3.

* * +

The standards for obtaining a Corps permit are

counterintuitive (“go look at property you do not

33

own”); technical (“assess the extraction site for

contaminants”); amorphous (“practicable,” “in the

public interest”); and complex (“demonstrate that you

can replace lost aquatic functions and values”).

Before the Corps can grant a 404 permit it must

adhere to multiple related processes whereby another

agency has to be consulted (SHPO, FWS), which in

some instances can effectively veto the project (EPA

under section 404(c), or a state environmental agency

under section 401 certification). | Moreover, the

program has been plagued over the last decade with

vexing regulatory issues that seem to have no end or

resolution. The most notorious of these are the scope

of “navigable waters” jurisdiction after Rapanos,?°

and what activities constitute a “discharge of

pollutants” triggering CWA permit requirements.?!

20 Since Rapanos was handed down, eight petitions for certiorari

have sought clarification on the scope of statutory “navigable

waters.” Two are pending. United States v. Lucas, 516 F.3d 316

(5th Cir. 2008), petition for cert. pending, No. 07-1512 (filed June

2, 2008); United States v. Robison, 505 F.3d 1208 (11th Cir.

2007), petition for cert. pending sub nom. United States uv.

McWane, No. 08-223 (filed. Aug. 21, 2008).

21 See S. Fla. Water. Mgmt. Dist. v. Miccosukee Tribe, 541 U.S.

95, 111-112 (2004) (“discharge of a pollutant” depended on

whether waterbodies at issue were “meaningfully distinct,”

because movement of pollutants in same body is not an

“addition” requiring CWA permit; remanding to trial court for

further factual findings); Borden Ranch P’ship v. U.S. Army

Corps of Eng’rs, 537 U.S. 99 (2002) (per curiam) (judgment

“affirmed by an equally divided court” as to whether agricultural

“discing” activity constituted a regulable “discharge of

pollutants”); Nat'l Mining Ass’n v. U.S. Army Corps of Eng’rs,

145 F.3d 1399, 1404 (D.C. Cir. 1998) (Corps and EPA rule

defining “discharge of dredged material” to include “incidental

fallback” vacated, because it did not depend on “addition” of

34

Such lack of clarity on so many levels makes it

almost impossible for NAHB to advise its members

with any certainty if they need a permit at all, or if

they do, how long it will take and how much it will

cost, and what their final project will look like when

the Corps (and EPA, FWS, SHPO, etc.) are done with

it.

That, in a nutshell, is the 404 process. The fact

that effluent limitation guidelines are creatures

unique to NPDES permits—and are beyond the

Corps’s authority to incorporate into a dredged or fill

permit—by no means diminishes the safeguards in

the section 404 program to protect water quality and

the aquatic ecosystem. In the case at bench, the court

of appeals never considered these elements of the

Corps’s permit procedures and standards. It was

sorely mistaken when it grafted effluent limitation

guidelines on to Coeur Alaska’s permit, due to

baseless concerns that water quality and the aquatic

ecosystem were not fully considered and protected as

part of the section 404 process.

material); Nat’ Ass’n of Home Builders v. U.S. Army Corps of

Eng’rs, 2007 WL 259944 at *4 (D.D.C. Jan. 30, 2007) (Corps and

EPA rule to redefine “discharge of dredged material” again stuck

as illegal, because agency's “regard| |” of mechanized

landclearing as a discharge did not depend on an “addition” to

jurisdictional waters).

35

CONCLUSION

For the foregoing reasons, the judgment below

should be reversed.

September 24, 2008

Respectfully submitted.

Robert D. Anderson Duane J. Desiderio*

Fennemore Craig *Counsel of Record

3003 N. Central Ave., Thomas J. Ward

Suite 2600 Amy C. Chai

Phoenix, AZ 85012-2913 Jeffrey B. Augello

(602) 916-5000 National Association of

Home Builders

1201 15th Street, N.W.

Washington, D.C. 20005

(202) 266-8200

App. 1

APPENDIX A

Cases in which NAHB has appeared as an amicus

curiae or “of counsel” before this Court include:

Agins v. City of Tiburon, 447 U.S. 255 (1980); San

Diego Gas and Elec. Co. v. City of San Diego, 450 U.S.

621 (1981); Williamson County Regl Planning

Comm’n v. Hamilton Bank, 473 U.S. 172 (1985);

MacDonald, Sommer & Frates v. Yolo County, 477

U.S. 340 (1986); First English Evangelical Lutheran

Church v. Los Angeles County, 482 U.S. 304 (1987);

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987);

Pennell v. City of San Jose, 485 U.S. 1 (1988); Yee v.

City of Escondido, 503 U.S. 519 (1992); Lucas v. S.C.

Coastal Council, 505 U.S. 1003 (1992); Dolan v. City

of Tigard, 512 U.S. 374 (1994); Babbitt v. Sweet Home

Chapter of Cmtys. for a Greater Ore., 515 U.S. 687

(1995); Suitum v. Tahoe Reg’l Planning Agency, 520

U.S. 725 (1997); City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687 (1999); Solid Waste

Agency of N. Cook County v. U.S. Army Corps of

Eng’rs, 531 U.S. 159 (2001); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); Franconia Assocs. uv.

United States, 536 U.S. 129 (2002); Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’l Planning Agency, 535

U.S. 302 (2002); Borden Ranch P’ship v. U.S. Army

Corps of Eng’rs, 537 U.S. 99 (2002); City of Cuyahoga

Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188

(2003); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe

of Indians, 541 U.S. 95 (2004); San Remo Hotel, L.P.

v. City and County of San Francisco, 545 U.S. 323

(2005); Lingle v. Chevron U.S.A., Inc., 544 U.S. 528

(2005); Kelo v. City of New London, 545 U.S. 469

(2005); S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547

App. 2

U.S. 370 (2006); Rapanos v. United States, 547 U.S.

715 (2006); NAHB v. Defenders of Wildlife, 127 S.Ct.

2518 (2007); John R. Sand and Gravel Co. v. United

States, 128 S.Ct. 750 (2008); Summers v. Earth Island

Inst., 490 F.3d 687 (9th Cir. 2007), cert. granted, 128

S. Ct. 1118 (2008) (No. 07-463); Entergy Corp. v.

Envtl. Prot. Agency, 475 F.3d 83 (2d Cir. 2007), cert.

granted, 128 S. Ct. 1867 (2008) (consol. with Nos. 07-

589 and 07-597); and Winter v. Natural Res. Def.

Council, 518 F.3d 658 (9th Cir. 2008), cert. granted,

128 S. Ct. 2964 (2008) (No. 07-1239).