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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2009

## Text

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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
i cn ccctleementiicemesmnnsienanlibiananiel 9
eam aT SIT 18
onc nrinnincinsnicsitenidseabionnnieialel 4,5
Fe se IID viicsiccensccusecnoscscinniatuaiceanceiiia 28
I i ciicsvesconssonandsdenesnimseummaedi 4
cial eeaitiipmneipeeiscnpaiemianell 4
BD Fs ee I iitectcneccnsnsnensinsnsccononnonsiinedian 11,15
a I inc nnnnscnnssdiisennnnnaneeinniii 4-5,7
| 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
| | eae 3

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
TT aaa eMC E ee IE TE 7
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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A27. Public record. Not legal advice.