Southeast Alaska v. United States Corps of Engineers , 486 F.3d 638 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOUTHEAST ALASKA CONSERVATION 
COUNCIL; SIERRA CLUB; LYNN
CANAL CONSERVATION,
Plaintiffs-Appellants,
v.
UNITED STATES ARMY CORPS OF
ENGINEERS; TIMOTHY J. GALLAGHER,
Colonel, in his official capacity as
District Engineer; LARRY L. No. 06-35679
REEDER, in his official capacity as
Chief of the Regulatory Branch;  D.C. No.
CV-05-00012-J-JKS
DOMINIC IZZO, in his official
capacity as Principal Deputy OPINION
Assistant Secretary of the Army
(Civil Works); UNITED STATES
FOREST SERVICE,
Defendants-Appellees,
COEUR ALASKA, INC.; GOLDBELT,
INC.; STATE OF ALASKA,
Defendants-Intervenors-
Appellees.

Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Senior District Judge, Presiding
Argued and Submitted
December 4, 2006—San Francisco, California
Filed May 22, 2007
Before: Procter Hug, Jr., A. Wallace Tashima, and
Susan P. Graber, Circuit Judges.
5959
5960 SOUTHEAST ALASKA CONSERVATION v. USACE
Opinion by Judge Hug
5962 SOUTHEAST ALASKA CONSERVATION v. USACE
COUNSEL
Thomas S. Waldo and Demian A. Schane, Earthjustice,
Juneau, Alaska, for plaintiffs-appellants.
John T. Stahr and Mark A. Nitczynski, U.S. Department of
Justice, Environment & Natural Resources Division, Wash-
ington, D.C., for defendants-appellees.
David J. Burman and Robert A. Maynard, Perkins Coie LLP,
Boise, Idaho; John C. Berghoff, Jr., and Michael P. Rissman,
Mayer Brown Rowe & Maw LLP, Chicago, Illinois; Cameron
M. Leonard, State of Alaska, Department of Law, Fairbanks,
SOUTHEAST ALASKA CONSERVATION v. USACE 5963
Alaska; and David C. Crosby, David C. Crosby PC, Juneau,
Alaska, for defendants-intervenors-appellees.
Melissa Powers and Allison LaPlante, Pacific Environmental
Advocacy Center, Portland, Oregon; Joseph M. Lovett, Appa-
lachian Center for the Economy & the Environment, Lewis-
burg, West Virginia; and Peter Van Tuyan, Bessenyey & Van
Tuyn, Anchorage, Alaska, for amici curiae in support of
plaintiffs-appellants.
John W. Hartle, City and Borough of Juneau, Juneau, Alaska;
Amy Gurton Mead, Robertson, Monagle & Eastaugh, Juneau,
Alaska; Steven J. Lechner, Mountain States Legal Founda-
tion, Lakewood, Colorado; Michael R. Shebelskie, Hunton &
Williams LLP, Richmond, Virginia; Harold P. Quinn, Jr.,
National Mining Association, Washington, D.C.; and Stephen
F. Sorensen, Simpson, Tillinghast & Sorensen PC, Juneau,
Alaska, for amici curiae in support of defendants-appellees.
OPINION
HUG, Circuit Judge:
This case presents the question of whether the issuance of
a permit by the U.S. Army Corps of Engineers violates the
Clean Water Act.1 The permit issued in this case authorizes
Coeur Alaska, Inc., to discharge process wastewater contain-
ing tailings from its gold mine into a lake that is a navigable
water of the United States. Coeur Alaska proposes to dis-
charge daily 210,000 gallons of process wastewater contain-
ing 1,440 tons of tailings from its mine into Lower Slate
Lake. The tailings in the discharge will raise the bottom ele-
vation of the lake by 50 feet. A 90-foot high, 500-foot long
dam will be built to contain the discharge and the area of the
1
33 U.S.C. §§ 1251-1387.
5964 SOUTHEAST ALASKA CONSERVATION v. USACE
lake will be increased about three-fold. The U.S. Army Corps
of Engineers contends that the permit was properly granted
under § 404 of the Clean Water Act, which relates to the dis-
posal of “fill material,” and that it is not subject to the effluent
restrictions of § 301 or § 306 of the Clean Water Act. The
plaintiffs contend that this mine disposal discharge must com-
ply with the effluent restrictions of § 301 and § 306, and that
any permit allowing discharge must be issued by the Environ-
mental Protection Agency. The district court held that the
issuance of the permit was proper. We reverse and remand
with instructions to vacate the permit.2
I.
Coeur Alaska intends to open the Kensington Gold Mine
on the site of a prior mine in southeast Alaska that operated
from 1897 to 1928. Although the mining operation will
include several above-ground facilities, the mine itself will be
entirely subterranean.
To process the gold ore retrieved from the mine, Coeur
Alaska will construct a froth-flotation mill facility. In the
froth-flotation process, ore-bearing rock from the mine will be
transported to a mill and moved through a series of mechani-
cal crushing and grinding procedures. After the rock is finely
ground, it will be fed into a tank where water and chemicals
referred to as conditioners, frothers, surfactants, and scale
inhibitors will be added. Air is then pumped into the tank,
producing bubbles that attach to the gold deposits. The bub-
bles rise, bringing the gold with them and forming a froth that
is skimmed off the top.
2
We also vacate the permit granted to Goldbelt, Inc., to construct the
Cascade Point Marine Facility in Berners Bay and the U.S. Forest Ser-
vice’s Record of Decision approving the general plan because they are
dependent on the validity of the permit issued by the U.S. Army Corps of
Engineers to Coeur Alaska.
SOUTHEAST ALASKA CONSERVATION v. USACE 5965
After the gold has bubbled up to the surface and the froth
is removed, the tailings — residual ground rock — remain as
a waste product. Of the 2,000 tons of ore that the Kensington
mine will process each day, only about 100 tons (5 percent)
contain economically viable gold minerals. About 40 percent
of the tailings will be used as backfill in the mine. The
remaining volume is, according to Coeur Alaska, too large to
transport off site and presents a waste disposal problem. This
dispute arises from Coeur Alaska’s current plan for address-
ing that disposal problem.
Coeur Alaska’s earlier plan of operations for the Kensing-
ton Gold Mine called for the construction of a “dry tailings
facility,” in which the mine would dispose of waste from its
froth-flotation mill on dry “uplands.” This disposal process
involved the construction of berm and drainage structures
around the designated disposal area, dewatering the process
wastewater, and placement of the tailings within an enclosure.
After the closure of the mine in about 10 to 15 years, Coeur
Alaska would have been required to cover the disposal area
with native material to support revegetation. The U.S. Forest
Service (“Forest Service”) approved the plan of operations for
the dry tailings facility, and the U.S. Army Corps of Engi-
neers (“Corps”) and the Environmental Protection Agency
(“EPA”) issued permits to the company authorizing the con-
struction of this facility in 1997. The price of gold subse-
quently dropped to $400 an ounce, however, prompting Coeur
Alaska to investigate less expensive ways to develop the mine
project.3 In 2004, Coeur Alaska proposed a new plan of opera-
tions with significant amendments. The most important
change for our purposes was that, instead of the dry tailings
facility, Coeur Alaska proposed to discharge its process
wastewater containing the tailings directly into nearby Lower
Slate Lake.
3
The price of gold has since been rising steadily and is currently over
$680 an ounce, thus the original motivation for the change in waste dis-
posal from the mine no longer exists.
5966 SOUTHEAST ALASKA CONSERVATION v. USACE
Lower Slate Lake, a 23-acre subalpine lake in the Tongass
National Forest, is one of several small lakes in the vicinity
of the mine. The lake is a fish and wildlife habitat and sup-
ports about 1,000 Dolly Varden Char (a freshwater fish) and
other native fish and aquatic life. The lake is also a tributary
of Slate Creek and drains into Berners Bay.
Coeur Alaska’s current disposal plan involves piping
approximately 210,000 gallons of process wastewater, includ-
ing 1,440 tons of tailings, each day to the bottom of Lower
Slate Lake in the form of a slurry. This slurry would consist
of about 45 percent water and 55 percent tailings. A polymer
and flocculent would be added to the slurry to enhance set-
tling of the tailings. Over the 10- to 15-year life of the mine,
approximately 4.5 million tons of tailings would be deposited
into the lake. The discharge ultimately would raise the bottom
of the lake 50 feet, to its current high water mark, and nearly
triple its surface area. Coeur Alaska and the Corps admit that
the discharge and settling of the tailings into the lake would
kill all the fish and nearly all the aquatic life. The effluent
would have a pH factor of over 10, which is considerably
higher than the lake’s current pH factor, and would contain
concentrations of several potentially hazardous materials,
including aluminum, copper, lead, and mercury. The toxicity
of the discharge may have lasting effects on the lake and may
negatively affect its ability to sustain aquatic life in the future.
The Corps intends that aquatic life would be reintroduced into
the lake, but the extent to which aquatic life could be restored
eventually is unclear.
To prepare the lake for use as a wastewater disposal facility
and the consequent expansion of the lake’s surface, Coeur
Alaska would construct a 90-foot high, 500-foot long dam at
the lake’s outfall point. Coeur Alaska’s long-term plan to use
the lake as a disposal facility also includes the construction of
a diversion ditch. Constructing the ditch would require cutting
trees on 7.6 acres of forested land, building a 30-foot wide
road, excavating and digging a 3,000-foot ditch, and filling in
SOUTHEAST ALASKA CONSERVATION v. USACE 5967
4.3 acres of nearby wetlands with 28,800 cubic yards of fill
material. In addition, during the 10- to 15-year period of the
lake’s use as a disposal facility, Slate Creek would be diverted
around the lake through a pipeline.
The Forest Service approved Coeur Alaska’s current plan
of operations at the Kensington Gold Mine, including the
revised disposal plan, in a Record of Decision (“ROD”) on
December 9, 2004. Because the proposed discharge would
have the effect of raising the bottom elevation of Lower Slate
Lake, the Corps reasoned that the permit program under § 404
of the Clean Water Act, rather than § 402, applies to Coeur
Alaska’s planned discharges. Accordingly, the Corps issued a
permit for the discharge into Lower Slate Lake on June 17,
2005.
Under the permit, when operations at the mine eventually
cease, the Corps would require Coeur Alaska to mitigate the
environmental impacts at the lake by installing a cap of native
material over the tailings at the bottom of the lake. The Corps
would also require Coeur Alaska to reintroduce native fish
species into the lake and monitor the health of the ecosystem.
II.
Southeast Alaska Conservation Council, the Sierra Club,
and Lynn Canal Conservation (collectively “SEACC”) filed
this lawsuit challenging the Corps’ permit and the Forest Ser-
vice’s ROD approving the general plan on the grounds that
they violate § 301(a), § 301(e), and § 306(e) of the Clean
Water Act. The crux of SEACC’s argument is that the Corps
violated the Clean Water Act by issuing a permit for the dis-
charge of process wastewater from a froth-flotation mill into
a body of water protected by the Clean Water Act.
After the complaint was filed, the Corps decided to suspend
the permit and reconsidered its decision to issue the permit.
For that purpose, the Corps moved for voluntary remand of
5968 SOUTHEAST ALASKA CONSERVATION v. USACE
the case before briefing on the merits began, which the district
court granted on November 14, 2005. The Corps reinstated
the original permit, without changes, on March 29, 2006. At
the same time, the Corps issued a revised ROD in which it
explained its rationale. SEACC then filed an amended com-
plaint, in which it reiterated its allegations and reasserted its
causes of action. Coeur Alaska, Goldbelt, Inc., and the State
of Alaska intervened as defendants. The parties filed cross-
motions for summary judgment.
The district court granted summary judgment to the defen-
dants on August 4, 2006. In its opinion, the district court
focused on whether the Corps misapplied § 404 of the Clean
Water Act. The district court noted that SEACC challenged
the granting of the permit on the grounds that it did not com-
ply with § 301(e) and § 306(e). It held that if the permit was
issued under § 404 for the disposal of “fill material,” then
§ 301(e) and § 306(e) were inapplicable.
SEACC appealed on August 7, 2006, three days after the
district court’s decision, and this court, on SEACC’s motion,
granted an injunction pending appeal on August 24, 2006,
which prohibited Coeur Alaska, the Corps, and the Forest Ser-
vice from proceeding with further construction activities
related to preparing the lake for use as a waste disposal site.
See SEACC v. U.S. Army Corps of Eng’rs, 472 F.3d 1097,
1099 (9th Cir. 2006). Since granting the injunction, we have
addressed two emergency motions related to stabilizing a tem-
porary coffer dam that was hastily constructed by Coeur
Alaska prior to the injunction. Id.; SEACC v. U.S. Army Corps
of Eng’rs, 479 F.3d 1148, 1151-52 (9th Cir. 2007).
III.
We review the district court’s grant of summary judgment
de novo and must determine whether the district court cor-
rectly applied the relevant substantive law. Turtle Island Res-
toration Network v. Nat’l Marine Fisheries Serv., 340 F.3d
SOUTHEAST ALASKA CONSERVATION v. USACE 5969
969, 973 (9th Cir. 2003); United States v. City of Tacoma, 332
F.3d 574, 578 (9th Cir. 2003). “De novo review of a district
court judgment concerning a decision of an administrative
agency means the court views the case from the same position
as the district court.” Turtle Island, 340 F.3d at 973 (citing
Nev. Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713, 716
(9th Cir. 1993)). Judicial review of administrative decisions
under the Clean Water Act is governed by § 706 of the
Administrative Procedure Act (“APA”). Nat’l Wildlife Fed’n
v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir.
2004). Under the APA, a court may set aside an agency action
if the court determines that the action was “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A); Turtle Island, 340 F.3d at
973.
IV.
Two different regulations contain plain language interpret-
ing the Clean Water Act that would appear to govern Coeur
Alaska’s proposed plan of operations at the Kensington Gold
Mine, but they result in different interpretations of the Act.
The discharge of wastewater containing tailings from Coeur
Alaska’s froth-flotation mill operation facially meets the
Corps’ current regulatory definition of “fill material” because
it would have the effect of raising the bottom elevation of the
lake. See 33 C.F.R. § 323.2(e). Accordingly, under this inter-
pretation, the discharge would be subject to the permit process
governed by § 404 of the Clean Water Act. However, EPA
previously promulgated a performance standard, pursuant to
§ 301 and § 306 of the Clean Water Act, that prohibits dis-
charges from froth-flotation mills into waters of the United
States. See 40 C.F.R. § 440.104(b)(1).
Both of the regulations appear to apply in this case, yet they
are at odds. As explained below, the plain language of the
Clean Water Act resolves this conflict and requires that the
performance standard controls. The statute is unambiguous on
5970 SOUTHEAST ALASKA CONSERVATION v. USACE
this point, and the performance standard applies to discharges
from the froth-flotation mill at Coeur Alaska’s Kensington
Gold Mine into Lower Slate Lake. Furthermore, the federal
agencies’ clear statements at the time they adopted the current
regulatory definition of the term “fill material” demonstrate
that they did not intend for waste products subject to effluent
limitations and performance standards to be regulated as “fill
material.” For these reasons the Corps should not have issued
a permit to Coeur Alaska under § 404. The district court’s
grant of summary judgment in favor of the Corps is reversed,
and we remand for summary judgment to be entered in favor
of the plaintiffs with directions to vacate the permit granted
by the Corps.
A.
We begin, as we must, with the text of the Clean Water Act
itself to determine “whether Congress has directly spoken to
the precise question at issue. If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed
intent of Congress.” Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-43 (1984). “If a court,
employing traditional tools of statutory construction, ascer-
tains that Congress had an intention on the precise question at
issue, that intention is the law and must be given effect.” Id.at 843 n.9.
1.
Congress passed the Clean Water Act in 1972 “to restore
and maintain the chemical, physical, and biological integrity”
of the waters of the United States. 33 U.S.C. § 1251(a). To
achieve this objective, the Clean Water Act sought to elimi-
nate completely the discharge of all pollutants into the
nation’s navigable waters by 1985. 33 U.S.C. § 1251(a)(1). It
also sought to make those waters suitable for fish, shellfish,
wildlife, and recreation. 33 U.S.C. § 1251(a)(2). One of Con-
SOUTHEAST ALASKA CONSERVATION v. USACE 5971
gress’s principal concerns in passing the Clean Water Act was
the use of water for waste disposal, which Congress deemed
“unacceptable.” See S. Rep. No. 92-414, at 7 (1971),
reprinted in 1971 U.S.C.C.A.N. 3668, 3674 (“The use of any
river, lake, stream or ocean as a waste treatment system is
unacceptable.”), quoted in Weyerhauser Co. v. Costle, 590
F.2d 1011, 1043 (9th Cir. 1978).
[1] The “cornerstone” and “fundamental premise” of the
Clean Water Act is § 301, which prohibits all discharges of
any pollutant except in compliance with specified provisions
of the statute. Ass’n to Protect Hammersley, Eld, & Totten
Inlets v. Taylor Res., Inc., 299 F.3d 1007, 1009 (9th Cir.
2002); Natural Res. Def. Council, Inc. v. EPA, 822 F.2d 104,
109 (D.C. Cir. 1987). Specifically, § 301(a) provides that “the
discharge of any pollutant by any person shall be unlawful”
except when the discharge complies with the requirements of,
inter alia, § 301, § 306, § 402, and § 404.4 33 U.S.C.
§ 1311(a). In furtherance of this mandate, § 301(b) requires
EPA to adopt increasingly stringent, technology-based efflu-
ent limitations5 for point sources.6 Once an effluent limitation
is promulgated, § 301(e) requires that it “shall be applied to
all point sources of discharge of pollutants in accordance with
the provisions of” the statute. 33 U.S.C. § 1311(e) (emphasis
added).
4
The full text of § 301 states: “Except as in compliance with this section
and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the dis-
charge of any pollutant by any person shall be unlawful.” 33 U.S.C.
§ 1311(a).
5
“The term ‘effluent limitation’ means any restriction established by a
State or the [EPA] on quantities, rates, and concentrations of chemical,
physical, biological, and other constituents which are discharged from
point sources into navigable waters, . . . including schedules of compli-
ance.” 33 U.S.C. § 1362(11).
6
“The term ‘point source’ means any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure, container, rolling stock, concentrated ani-
mal feeding operation, or vessel or other floating craft, from which pollu-
tants are or may be discharged.” 33 U.S.C. § 1362(14).
5972 SOUTHEAST ALASKA CONSERVATION v. USACE
[2] Similarly, § 306 requires EPA to implement even more
stringent “standards of performance” for new sources such as
the new Coeur Alaska mine project.7 33 U.S.C. §1316(b). To
carry out § 306’s directive, EPA must promulgate a list of cat-
egories of sources and, for new sources within each category,
establish a national standard of performance (also referred to
as a New Source Performance Standard). Id. A standard of
performance is defined as “a standard for the control of the
discharge of pollutants which reflects the greatest degree of
effluent reduction which [EPA] determines to be achievable
through application of the best available demonstrated control
technology, processes, operating methods, or other alterna-
tives, including, where practicable, a standard permitting no
discharge of pollutants.” 33 U.S.C. § 1316(a)(1) (emphasis
added). As with the effluent reductions promulgated under
§ 301,8 § 306 states that, once a standard of performance takes
effect, “it shall be unlawful for any owner or operator of any
new source to operate such source in violation of any standard
of performance applicable to such source.” 33 U.S.C.
§ 1316(e). Congress thus “intended these regulations to be
absolute prohibitions.” E.I. du Pont de Nemours & Co. v.
Train (“Du Pont”), 430 U.S. 112, 138 (1977) (citing S. Rep.
No. 92-414, at 58 (1971)). The legislative history of § 306
indicates that Congress made a “deliberate choice not to allow
variances for new sources.” Riverkeeper, Inc. v. EPA, 358
F.3d 174, 192 (2d Cir. 2004). As such, no exceptions to a
7
“The term ‘new source’ means any source, the construction of which
is commenced after the publication of proposed regulations prescribing a
standard of performance under this section which will be applicable to
such source, if such standard is thereafter promulgated in accordance with
this section.” 33 U.S.C. § 1316(a)(2).
“The term ‘source’ means any building, structure, facility, or installa-
tion from which there is or may be the discharge of pollutants.” 33 U.S.C.
§ 1316(a)(3).
8
A standard of performance is one type of effluent limitation. See 33
U.S.C. § 1362(11). Therefore, § 301(e) and § 306(e) have the same practi-
cal effect in this case.
SOUTHEAST ALASKA CONSERVATION v. USACE 5973
standard of performance are allowed. See id.; Du Pont, 430
U.S. at 138.
[3] To ensure compliance with effluent limitations and per-
formance standards established pursuant to § 301 and § 306,
Congress created the National Pollutant Discharge Elimina-
tion System (“NPDES”) permit program under § 402 of the
Act. Through the NPDES program, EPA may permit a dis-
charge, but only if it complies with § 301 and § 306. Addi-
tionally, NPDES permits are supposed to limit the release of
pollutants into waterways as much as possible by imposing
numerical discharge restrictions. Rybacheck v. EPA, 904 F.2d
1276, 1283 (9th Cir. 1990). For this reason, the NPDES per-
mit program is considered “central to the enforcement” of the
Clean Water Act. Natural Res. Def. Council, Inc. v. Costle,
568 F.2d 1369, 1374 (D.C. Cir. 1977).
[4] In addition to the NPDES permit program, the Clean
Water Act established a secondary permit program for the dis-
charge of “dredged or fill material” under § 404. According
to § 404, the Corps “may issue permits . . . for the discharge
of dredged or fill material into the navigable waters at speci-
fied disposal sites.” 33 U.S.C. § 1344(a). We conclude that
the permit scheme under § 404 is a limited permit program
that applies only to dredged or fill material, not to the dis-
charge of pollutants from industrial or municipal sources.
2.
[5] The language of the Clean Water Act is clear on the
issue at the center of this dispute. First, § 301(a) prohibits any
discharge that does not comply with several enumerated sec-
tions, including both § 301 and § 306, as well as § 402 and
§ 404. 33 U.S.C. § 1311(a). The use of “and” as a connector,
instead of “or,” indicates that Congress intended for effluent
limitations and standards of performance to apply to all appli-
cable discharges, even those that facially qualify for permit-
ting under § 404. Second, § 301(e) applies effluent limitations
5974 SOUTHEAST ALASKA CONSERVATION v. USACE
established by EPA to all discharges. 33 U.S.C. § 1311(e).
Third, § 306(e) prohibits any discharge that does not comply
with performance standards promulgated by EPA. 33 U.S.C.
§ 1316(e). In clear and precise terms, § 301 and § 306 require
that discharges comply with applicable effluent limitations
and standards of performance. Neither § 301 nor § 306 con-
tains an exception for discharges that would otherwise qualify
for regulation under § 404. Rather, § 301 and § 306 are “abso-
lute prohibitions” with no exceptions. Du Pont, 430 U.S. at
138.
[6] Nevertheless, the defendants argue that § 301 and § 306
do not apply to § 404 permits because § 402 explicitly
requires compliance with those sections whereas § 404 does
not. The defendants then reason, by way of negative infer-
ence, that § 404 contains an implied exception to the require-
ments of § 301 and § 306 whenever a proposed discharge
would meet the agencies’ regulatory definition of “fill materi-
al.” We disagree. Negative inferences and implied exceptions
are generally disfavored. As the Supreme Court stated in
United States v. Rutherford, 442 U.S. 544 (1979): “Excep-
tions to clearly delineated statutes will be implied only where
essential to prevent ‘absurd results’ or consequences obvi-
ously at variance with the policy of the enactment as a
whole.” Id. at 552 (citing Helvering v. Hammel, 311 U.S. 504,
510-11 (1941)). That is because courts have “generally pre-
sumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion” of particular language. S.D.
Warren Co. v. Me. Bd. of Envtl. Prot., 126 S. Ct. 1843, 1852
(2006) (quoting Bates v. United States, 522 U.S. 23, 29-30
(1997)). The defendants have produced no compelling reason
to believe that Congress intended an exception within § 404
that it did not explicitly create. If the defendants’ interpreta-
tion were correct, Congress would have written § 301 and
§ 306 within § 402, not as separate sections. Moreover, the
implied exception urged by the defendants, if adopted, would
turn § 404 into an exception that swallows the rule created by
§ 301, § 306, and § 402 by allowing the Corps to use a nega-
SOUTHEAST ALASKA CONSERVATION v. USACE 5975
tive inference from an exception clause within § 402. Thus,
§ 404’s silence regarding the explicit and detailed require-
ments in § 301 and § 306 cannot create an exception to those
sections’ strongly-worded blanket prohibitions.
The defendants’ interpretation would render § 301(e) and
§ 306(e) effectively meaningless. Courts strive to avoid inter-
preting a statute “in a manner that renders other provisions of
the same statute inconsistent, meaningless, or superfluous.”
Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir.
1991), quoted in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013,
1024 (9th Cir. 2005); see also Ratzlaf v. United States, 510
U.S. 135, 140-41 (1994); Watt v. Alaska, 451 U.S. 259, 267
(1981) (“We must read the statutes to give effect to each if we
can do so while preserving their sense and purpose.”). If the
defendants were correct, the words “all” in § 301(e) and
“any” in § 306(e)9 would lose their meaning entirely.
[7] There is a much simpler explanation for the difference
in language between § 402 and § 404 than the defendants’
proposed negative inference. If EPA has adopted an effluent
limitation or performance standard applicable to a relevant
source of pollution, § 301 and § 306 preclude the use of a
§ 404 permit scheme for that discharge. See 67 Fed. Reg.
31,129, 31,135 (May 9, 2002); EPA/Corps, Joint Response to
Comments 12 (May 3, 2002). Accordingly, the NPDES pro-
gram administered by EPA under § 402 is the only appropri-
ate permitting mechanism for discharges subject to an effluent
9
Section 301(e) provides: “Effluent limitations established pursuant to
this section or section 1312 of this title shall be applied to all point sources
of discharge of pollutants in accordance with the provisions of this chap-
ter.” 33 U.S.C. § 1311(e) (emphasis added).
Section 306(e), which applies to new sources like the Coeur Alaska
mine project, provides: “After the effective date of standards of perfor-
mance promulgated under this section, it shall be unlawful for any owner
or operator of any new source to operate such source in violation of any
standard of performance applicable to such source.” 33 U.S.C. § 1316(emphasis added).
5976 SOUTHEAST ALASKA CONSERVATION v. USACE
limitation under § 301 or a standard of performance under
§ 306. Consequently, there was simply no need for Congress
to enumerate § 301 or § 306 within § 404 because Congress
never intended for § 404 to govern discharges subject to efflu-
ent limitations or performance standards. Rather, when a dis-
charge is subject to an effluent limitation or performance
standard, that discharge must comply with the NPDES pro-
gram as required by § 402. See 67 Fed. Reg. at 31,135; 47
Fed. Reg. 54,598, 54,606 (Dec. 12, 1982). This construction
of the statute preserves the full meaning of all of its provi-
sions without rendering any provision superfluous or resorting
to negative inferences and implied exceptions.
Additionally, although § 404 does not contain an explicit
exception to effluent limitations or standards of performance,
it does contain exceptions to other provisions of the Clean
Water Act. Specifically, § 404(f) exempts discharges of
dredged or fill material from certain activities from regulation
under § 301(a), § 402, and § 404. 33 U.S.C. § 1344(f)(1). Dis-
charges related to agricultural activities and road construction,
among others, are exempted under § 404(f)(1). Mining is not
listed as an exempt activity. “Where Congress explicitly enu-
merates certain exceptions to a general prohibition, additional
exceptions are not to be implied, in the absence of evidence
of a contrary legislative intent.” Andrus v. Glover Constr. Co.,
446 U.S. 608, 616-17 (1980). The defendants have produced
no reason to believe that Congress intended additional exemp-
tions to be created later. Therefore, the lack of any explicit
exception to § 301 and § 306 within § 404, and the lack of an
exception for process wastewater from mines, is strong evi-
dence that Congress did not intend one. Id. Even stronger evi-
dence is Congress’s insistence in § 404(f) that even the
discharges from the enumerated activities continue to be sub-
ject to effluent standards. 33 U.S.C. § 1344(f).
[8] Thus, the plain language of the Clean Water Act
directly resolves the conflict between the regulatory definition
of “fill material” and EPA’s performance standard for froth-
SOUTHEAST ALASKA CONSERVATION v. USACE 5977
flotation mill operations. Pursuant to § 301 and § 306, EPA’s
performance standard for froth-flotation mills governs this sit-
uation. The language of § 404 does not lead to a contrary con-
clusion.
B.
Although the plain language of the Clean Water Act
resolves the apparent regulatory conflict at the heart of this
case, the regulatory history further demonstrates that neither
the Corps nor EPA intended for the current regulatory defini-
tion of “fill material” to replace the performance standard for
froth-flotation mills. Courts consider contemporaneous expla-
nations of regulations, such as those published in the Federal
Register through notice-and-comment rulemaking, in order to
determine an agency’s intent. See Hillsborough County v.
Automated Med. Labs., Inc., 471 U.S. 707, 714-16 (1985);
Friends of Yosemite Valley v. Norton, 348 F.3d 789, 797 (9th
Cir. 2003); League of Wilderness Defenders/Blue Mountains
Biodiversity Project v. Forsgren, 309 F.3d 1181, 1189-90 (9th
Cir. 2002); Kentuckians for the Commonwealth, Inc. v. Riven-
burgh, 317 F.3d 425, 446-47 (4th Cir. 2003). And courts will
not defer to an agency’s interpretation of a regulation that
contradicts the agency’s intent at the time it promulgated the
regulation. Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 904,
916 (2006); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504,
512 (1994); Alaska Trojan P’ship v. Gutierrez, 425 F.3d 620,
627-28 (9th Cir. 2005); see also Auer v. Robbins, 519 U.S.
452, 461 (1997) (an agency’s interpretation of a regulation is
not entitled to deference where it is “plainly erroneous” or
“inconsistent with the regulation”) (quoting Bowles v. Semi-
nole Rock & Sand Co., 325 U.S. 410, 414 (1945)). When the
agencies promulgated the current definition in 2002, they
foresaw and specifically addressed the potential conflict
between the effects-based definition of “fill material” and per-
formance standards already in place. To that end, the agencies
explicitly stated that wastes subject to performance standards
and effluent limitations would not be considered “fill materi-
5978 SOUTHEAST ALASKA CONSERVATION v. USACE
al.” The Corps’ application of the fill rule in this case, there-
fore, contradicts its interpretation at the time the regulation
was promulgated.
1.
Following its statutory obligation under § 301 and § 306, in
1982 EPA promulgated effluent limitations and standards of
performance for sources within the category of ore mining.
See 47 Fed. Reg. 25,682 (June 14, 1982) (proposed); 47 Fed.
Reg. 54,598 (Dec. 3, 1982) (final). Within this category, EPA
established a subcategory that applied to gold mining. See 40
C.F.R. §§ 440.100-440.104. For gold mines using the froth-
flotation mill process, EPA promulgated a zero-discharge
standard:
Except as provided in paragraph (b)[2] of this sec-
tion, there shall be no discharge of process waste-
water to navigable waters from mills that use the
froth-flotation process alone, or in conjunction with
other processes, for the beneficiation of copper, lead,
zinc, gold, silver, or molybdenum ores or any combi-
nation of these ores.
40 C.F.R. § 440.104(b)(1) (emphasis added); see also 47 Fed.
Reg. at 25,697 (proposing zero discharge). EPA found that the
zero-discharge standard was practicable because the majority
of facilities existing at the time already achieved zero dis-
charge through recycling and evaporation processes. 47 Fed.
Reg. at 54,602. EPA promulgated this standard knowing that
process wastewater discharges from froth-flotation mills con-
tain a large amount of suspended solids that could otherwise
qualify for regulation under § 404 pursuant to its effects-
based definition of “fill material.” See 47 Fed. Reg. at 25,685
(“Mill process wastewater is characterized by very high sus-
pended solids levels (often in the percent range rather than
milligrams per liter) . . . .”). In determining that a strict zero-
discharge limit was appropriate, EPA determined that the best
SOUTHEAST ALASKA CONSERVATION v. USACE 5979
available control technology included the complete recycling
of process wastewater. See 47 Fed. Reg. at 54,602. Given that
the regulation facially applies to any discharge from a froth-
flotation mill, and that it provides some limited exceptions
that do not include “fill material,” EPA intended for the prohi-
bition to apply to discharges that would otherwise qualify as
fill material under § 404. See 67 Fed. Reg. at 31,135. This
conclusion is also supported by the fact that EPA promulgated
the regulation notwithstanding its definition of “fill material,”
which was identical to the definition used by both agencies
today.
2.
[9] The history of the current fill rule also demonstrates that
both agencies intended for effluent limitations and perfor-
mance standards to apply even to discharges that facially meet
the definition of the term “fill material.” The Clean Water Act
does not define the term “fill material.” Instead, Congress
implicitly left that term to the Corps and EPA to define. See
Res. Invs., Inc. v. U.S. Army Corps of Eng’rs, 151 F.3d 1162,
1166 (9th Cir. 1998). As with most regulatory definitions, the
agencies’ definitions of “fill material” have evolved over
time. In fact, prior to the current regulatory definition of “fill
material,” the Corps and EPA defined “fill material” differ-
ently. The Corps initially used an effects-based test, which
defined “fill material” as “any pollutant used to create fill in
the traditional sense of replacing an aquatic area with dry land
or of changing the bottom elevation of a water body for any
purpose.” 40 Fed. Reg. 31,320, 31,325 (July 25, 1975). EPA
later adopted the identical definition. 40 Fed. Reg. 41,292,
41,298 (Sept. 5, 1975). Two years later, the Corps revised its
definition and adopted a purpose-based test, which excluded
from its definition “any pollutant discharged into the water
primarily to dispose of waste.” 42 Fed. Reg. 37,122, 37,145
(July 19, 1977). In adopting its purpose-based definition, the
Corps explained that there were many waste materials “which
technically fit within our definition of ‘fill material’ but which
5980 SOUTHEAST ALASKA CONSERVATION v. USACE
were intended to be regulated under the NPDES program.” Id.
at 37,130. EPA, in 1980, chose to keep its effects-based test.
See 45 Fed. Reg. 33,290, 33,421 (May 19, 1980).
The agencies’ differing definitions of “fill material” created
a potential regulatory overlap. See, e.g., Res. Invs., 151 F.3d
at 1165-66, 1168-69 (acknowledging overlap); Kentuckians,
317 F.3d at 432 (“the Corps acknowledged that the differing
approaches in defining ‘fill material’ employed by EPA and
the Corps in their regulations had created some uncertainty
about their interpretation of the Clean Water Act”). Many
industrial wastes contain a high proportion of suspended sol-
ids and, therefore, have the effect of changing the bottom ele-
vation of a body of water. As such, those wastes could have
been considered fill material under EPA’s definition. How-
ever, EPA continued to regulate many of those industrial
wastes under § 402, and also continued to promulgate new
effluent limitations and standards of performance for indus-
trial pollutants with high concentrations of solids, regardless
of their potential to raise the bottom elevation of a body of
water. See, e.g., 46 Fed. Reg. 8,260, 8,292 (Jan. 26, 1981)
(regulating discharges of suspended solids from log-washing
processes). Indeed, the new source performance standard for
froth-flotation mills was adopted in 1982, despite the fact that
waste from this process would have the effect of raising bot-
tom elevation and, therefore, could otherwise constitute fill
material under EPA’s effects-based test. See 47 Fed. Reg. at
25,685. Thus, notwithstanding the potential regulatory over-
lap created by the agencies’ differing definitions, EPA regu-
lated many industrial pollutants under § 402. The agencies
formally adopted this practice in a Memorandum of Agree-
ment on Solid Waste (“MOA”) in 1986. 51 Fed. Reg. 8,871(Mar. 14, 1986). After adoption of the MOA in 1986, the
Corps continually declined to exercise jurisdiction over mine
tailings.10
10
See, e.g., Memorandum from Col. John W. Pierce, U.S. Army Corps
of Eng’rs, “Agency Jurisdiction over Certain Activities Connected with
SOUTHEAST ALASKA CONSERVATION v. USACE 5981
In 2002, the agencies promulgated their joint regulation
defining the terms “fill material” and “discharge of fill materi-
al.” 67 Fed. Reg. at 31,130. The current regulatory definition
of “fill material” provides:
(1) Except as specified in paragraph (e)(3) of this
section, the term “fill material” means material
placed in waters of the United States where the
material has the effect of:
(i) Replacing any portion of a water of the
United States with dry land; or
(ii) Changing the bottom elevation of any
portion of a water of the United States.
(2) Examples of such fill material include, but are
not limited to: rock, sand, soil, clay, plastics, con-
struction debris, wood chips, overburden from min-
ing[11] or other excavation activities, and materials
used to create any structure or infrastructure in the
waters of the United States.
(3) The term fill material does not include trash or
garbage.
33 C.F.R. § 323.2(e) (Corps’ regulation); 40 C.F.R. § 232.2Mineral Extraction, Specifically Gold Mining, in Alaska” 1-2 (Apr. 14,
1992) (“The tailings behind the dam, however, are a waste product of the
mining operation and are not under our jurisdiction according to the 1986
Memorandum of Agreement . . . .”); Letter from Glen E. Justis, U.S. Army
Corps of Eng’rs 2-3 (June 18, 1991) (“The Corps has neither special
expertise [n]or jurisdiction by law to evaluate the impacts of the tailings
discharge. . . . The tailings do not meet the Corps’ definition of fill materi-
al.”).
11
“Overburden” is generally defined as rock or soil cleared away before
mining. See EPA, Terms of Environment, http://www.epa.gov/
OCEPAterms/oterms.html (May 14, 2007).
5982 SOUTHEAST ALASKA CONSERVATION v. USACE
(EPA’s regulation) (emphasis added). The agencies also
defined “discharge of fill material” as follows:
The term “discharge of fill material” means the addi-
tion of fill material into waters of the United States.
The term generally includes, without limitation, the
following activities: . . . placement of overburden,
slurry, or tailings or similar mining-related materials
....
33 C.F.R. § 323.2(f); 40 C.F.R. § 232.2.12At the same time, however, the agencies made clear that
they did not intend to change their long-standing practice,
according to which EPA regulates discharges of pollutants for
which it has established effluent limitations or standards of
performance under the NPDES program.13
[W]e emphasize that today’s rule generally is
12
The amici brief of 14 members of Congress argues persuasively that
the adoption of these regulations by the Corps and EPA violates the pur-
poses and plain language of the Clean Water Act by allowing waste mate-
rial to be dumped into lakes, rivers, and other waters of the United States.
SEACC bases its argument on a narrower ground pertaining to this partic-
ular mine. Thus, we do not reach the issue of the validity of these regula-
tions.
13
In Kentuckians, the Fourth Circuit recognized the Corps’ prior prac-
tice of not regulating discharges subject to effluent limitations under
§ 404:
[W]e conclude that the Corps’ interpretation of “fill material” as
used in § 404 of the Clean Water Act to mean all material that
displaces water or changes the bottom elevation of a water body
except for “waste” — meaning garbage, sewage, and effluent that
could be regulated by ongoing effluent limitations as described in
§ 402 — is a permissible construction of § 404.
317 F.3d at 448. The court also explained the Corps’ prior position that
it was not authorized to regulate discharges subject to effluent limitations.
Id. at 445.
SOUTHEAST ALASKA CONSERVATION v. USACE 5983
intended to maintain our existing approach to regu-
lating pollutants under either section 402 or 404 of
the CWA. Effluent limitation guidelines and new
source performance standards (“effluent guidelines”)
promulgated under section 304[14] and 306 of the
CWA establish limitations and standards for speci-
fied 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. Rather, effluent guidelines restrict dis-
charges of pollutants from identified wastestreams
based upon the pollutant reduction capabilities of
available treatment technologies. Recognizing that
some discharges (such as suspended or settleable
solids) can have the associated effect, over time, of
raising the bottom elevation of a water due to set-
tling of waterborne pollutants, we do not consider
such pollutants to be “fill material,” and nothing in
today’s rule changes that view. Nor does today’s
rule change any determination we have made
regarding discharges that are subject to an effluent
limitation guideline and standards, which will con-
tinue to be regulated under section 402 of the CWA.
Similarly, this rule does not alter the manner in
which water quality standards currently apply under
the section 402 or the section 404 programs.
67 Fed. Reg. at 31,135 (emphasis added). Additionally, in
their Joint Response to Comments to the proposed rule, the
agencies restated this position:
Under today’s rule, we will continue, consistent with
14
Sections 304 and 301 are interchangeable in this instance. Section 304
directs EPA in how to determine the degree of effluent reduction attain-
able under § 301. Citizens Coal Council v. EPA, 447 F.3d 879, 883 (6th
Cir. 2006) (en banc) (citing 33 U.S.C. § 1314).
5984 SOUTHEAST ALASKA CONSERVATION v. USACE
our long-standing practice, to rely on the existence
of effluent limitation guidelines or standards or a
NPDES permit to inform the determination of how
a particular discharge is regulated under the Act. If
a specific discharge is regulated under Section 402,
it would not also be regulated under Section 404, and
vice versa.
EPA/Corps, Joint Response to Comments 30. In the same
document, the agencies clarified that the new rule would not
expand the jurisdiction of the Corps or permit previously pro-
hibited discharges: “the suggestion that this rulemaking now
provides a legal basis for previously illegal activities is not the
case — no discharges that were previously prohibited are now
authorized as a result of this rulemaking.” Id. Thus, the agen-
cies clearly intended to exclude discharges subject to effluent
limitations or performance standards from the new definition
of “fill material.”
In fact, when the Corps and EPA first proposed the revised,
coordinated definition in 2000, they included an explicit
exemption from the definition of “fill material” for discharges
subject to effluent limitations or standards of performance.
See 65 Fed. Reg. 21,292, 21,299 (Apr. 20, 2000). The stated
purpose of the exemption was to maintain the agencies’ “cur-
rent practice,” which was “consistent with paragraph B.5 of
the 1986 Solid Waste MOA.” Id. at 21,297. Although the
agencies removed the explicit exemption from the final rule,
they did so only because commenters expressed concern that
the exception was vague and would create uncertainty regard-
ing whether the reference to effluent guidelines applied pro-
spectively or only to those guidelines already in existence at
the time. See 67 Fed. Reg. at 31,135. As such, the agencies
still intended to regulate discharges subject to effluent limita-
tions and standards of performance under § 402.
The defendants attempt to undermine the clear intent of the
agencies by focusing on a single sentence of the preamble in
SOUTHEAST ALASKA CONSERVATION v. USACE 5985
which the agencies stated “mining-related material that has
the effect of fill when discharged will be regulated as ‘fill
material.’ ” Id. The district court also relied on that one sen-
tence. However, the defendants and the district court give far
more weight to that singular statement than it deserves. It is
difficult to understand why the agencies would painstakingly
explain in the preamble that the new definition would not
change their treatment of discharges subject to effluent limita-
tions and standards of performance, only to completely con-
tradict themselves two paragraphs later. The agencies
themselves cleared up any potential confusion in their Joint
Response to Comments:
Today’s final rule clarifies that any material that has
the effect of fill is regulated under section 404 and
further that the placement of “overburden, slurry, or
tailings or similar mining-related materials” is con-
sidered a discharge of fill material. Nevertheless, if
EPA has previously determined that certain materi-
als are subject to an [effluent limitation guideline]
under specific circumstances, then that determina-
tion remains valid.
EPA/Corps, Joint Response to Comments 12. Thus, the cur-
rent fill rule only applies to those tailings and other mining-
related materials that are not subject to effluent limitations or
standards of performance.15 The agencies could not have been
15
The Fourth Circuit’s holding in Kentuckians is consistent with our
conclusion. In Kentuckians, the court addressed the issue of whether the
Corps had authority under § 404 to permit valley fills from mountain-top
coal mining “when the valley fills serve no purpose other than to dispose
of excess overburden from the mining activity.” 317 F.3d at 439. EPA had
not promulgated a performance standard for mountain-top coal mining, so
neither § 301 nor § 306 was implicated in that case. Id. at 445. Moreover,
in that case, the Corps admitted that, under the 2002 definition, “it was
authorized to regulate discharges of fill, even for waste, unless the fill
amounted to effluent that could be subjected to effluent limitations.” Id.
(emphasis added).
5986 SOUTHEAST ALASKA CONSERVATION v. USACE
more clear in articulating that this would be their preferred
approach.
3.
[10] In fact, the agencies followed that approach with
Coeur Alaska for quite some time. The Corps consistently
informed Coeur Alaska that discharges from its froth-flotation
mill would not be regulated as fill material under § 404. At
least, the agencies took that approach up until the time that the
Corps granted the permit that led to this dispute. Prior to the
promulgation of the current fill rule in 2002, the Corps relied
on the 1986 MOA in informing Coeur Alaska that it lacked
jurisdiction and expertise to permit discharges of tailings from
the Kensington mine as “fill material.” For example, in a 1998
ROD, the Corps made clear to Coeur Alaska that it “does not
regulate the placement of tailings.” U.S. Army Corps of
Eng’rs, ROD 13 (Jan. 18, 1998). And as late as 2005, EPA
informed Coeur Alaska that “[b]ecause this project would be
a new source, the New Source Performance Standards (NSPS)
for gold mines and mills are applicable to the project.” EPA,
ROD for § 402 NPDES Permit 3 (June 28, 2005) (citing 40
C.F.R. § 440.104). Therefore, in addition to the regulatory
history, the agencies have an established record of refusing to
regulate tailings discharged from Coeur Alaska’s planned
froth-flotation mill at the Kensington mine as fill material
under § 404.
C.
The agencies’ unequivocal statements regarding their intent
not to override effluent limitations and standards of perfor-
mance when they promulgated the current fill rule are disposi-
tive and compel the conclusion that the Corps overstepped its
authority in issuing a permit to Coeur Alaska under § 404. If
the agencies actually did intend to repeal or create an excep-
tion to the performance standard for froth-flotation mills when
they promulgated the current fill rule, they did not acknowl-
SOUTHEAST ALASKA CONSERVATION v. USACE 5987
edge or provide a satisfactory explanation for the change in
course. When an agency decides to change course by rescind-
ing or changing a rule, the agency “is obligated to supply a
reasoned analysis for the change.” Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
42 (1983). If an agency fails to comply with that obligation,
the new rule is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law” and is invalid under
§ 706(2)(A) of the APA. Id. at 41 (citing 5 U.S.C.
§ 706(2)(A)); see also Bush-Quayle ‘92 Primary Comm., Inc.
v. Fed. Election Comm’n, 104 F.3d 448, 453 (D.C. Cir. 1997).
Not only did the Corps and EPA not acknowledge a change
in course when they promulgated the fill rule, they actually
stated the opposite intent. That is, the agencies made clear that
effluent limitations and standards of performance would con-
tinue to apply. We could not have interpreted the fill rule as
creating an exception to the performance standard for froth-
flotation mills without the agencies complying with the APA
by explaining their intent in the Federal Register and offering
an opportunity for notice and comment. See Motor Vehicle
Mfrs., 463 U.S. at 42.
D.
Finally, the performance standard governs because it is
more specific. It is a basic principle of regulatory interpreta-
tion that a regulation dealing with a “narrow, precise, and spe-
cific subject is not submerged” by a later enacted regulation
“covering a more generalized spectrum.” Radzanower v.
Touche Ross & Co., 426 U.S. 148, 153 (1976), cited in Cal.
ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v. United
States, 215 F.3d 1005, 1013 (9th Cir. 2000). Unlike the fill
rule, which pertains to fill material generally, the performance
standard covers froth-flotation mills precisely. See 40 C.F.R.
§ 440.104. Consequently, the agencies’ later promulgation of
the more general fill rule cannot supersede the narrow, pre-
cise, and specific performance standard for froth-flotation
mills.
5988 SOUTHEAST ALASKA CONSERVATION v. USACE
E.
The Corps also issued a permit to Goldbelt, Inc., for con-
struction of a marine terminal facility at Cascade Point and
issued a ROD approving Goldbelt’s plan of operations. See
U.S. Army Corps of Eng’rs, Permit to Goldbelt, Inc. (July 15,
2005); U.S. Army Corps of Eng’rs, Revised ROD 4 (Mar. 29,
2006). Goldbelt’s permit and ROD are predicated on a mine
design of which a critical component is Coeur Alaska’s dis-
charge of process wastewater into Lower Slate Lake. But for
that mine design, the Cascade Point facility would be unnec-
essary. In fact, the Corps itself stated that “without Kensing-
ton mine, the Cascade Point facility would not be constructed
in the foreseeable future.” U.S. Army Corps of Eng’rs,
Revised ROD 4. For that reason, the Corps considered the ter-
minal a “component” of the Kensington project and analyzed
the terminal proposal in the same Final Supplemental Envi-
ronmental Impact Statement and Revised ROD as the Ken-
sington project. Id. Indeed, Goldbelt must have had a
“significantly protectable interest” relating to the subject of
this case in order to intervene as a defendant, which it chose
to do. United States v. City of L.A., 288 F.3d 391, 398 (9th
Cir. 2002); Fed. R. Civ. P. 24(a)(2). Importantly, in its motion
to intervene, the company admitted that “Goldbelt’s Cascade
Point marine terminal is an integral part of the approved Plan
of Operations, and may be constructed and used solely to ser-
vice the Kensington Mine as contemplated in that Plan of
Operations.” Goldbelt further admitted that “[a]ny ruling by
this Court that delays or disrupts construction of the mine will
leave Goldbelt with a ‘permitted’ facility that either it cannot
build or cannot be operated once built because the condition
precedent of Goldbelt’s permits is construction and operation
of the Kensington Mine as contemplated in the challenged
Plan of Operations.” Consequently, Goldbelt’s permit and
ROD are critically premised on Coeur Alaska’s § 404 permit.
Because that permit is invalid, the Corps’ permit and ROD for
the Cascade Point facility should be vacated.
SOUTHEAST ALASKA CONSERVATION v. USACE 5989
F.
[11] Under the APA, the normal remedy for an unlawful
agency action is to “set aside” the action. 5 U.S.C. § 706(2).
In other words, a court should “vacate the agency’s action and
remand to the agency to act in compliance with its statutory
obligations.” Defenders of Wildlife v. EPA, 420 F.3d 946, 978
(9th Cir. 2005), cert. granted, 127 S. Ct. 853 (2007); see also
Am. Biosci., Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C.
Cir. 2001). For the reasons discussed above, the Corps’ permit
for the discharge of process wastewater from the froth-
flotation mill at the Kensington Gold Mine into Lower Slate
Lake violates § 301 and § 306 of the Clean Water Act. The
Corps’ permit for construction of a marine terminal at Cas-
cade Point critically depends on the unlawful permit to Coeur
Alaska. Consequently, we remand to the district court to
vacate both permits, as well as the RODs on which they are
based.
V.
In conclusion, we reverse the district court, remand to the
district court to vacate the permits issued to Coeur Alaska and
Goldbelt, and vacate the RODs that approved Coeur Alaska’s
and Goldbelt’s plans of operations. The Corps violated the
Clean Water Act by issuing a permit to Coeur Alaska for dis-
charges of slurry from the froth-flotation mill at the Kensing-
ton Gold Mine. EPA’s performance standard for froth-
flotation mills, promulgated pursuant to § 301 and § 306 of
the Clean Water Act, prohibits discharges from such opera-
tions into the navigable waters of the United States. No
exceptions are provided by either the regulation or the statute.
Even though the discharge in this case facially qualifies for
the permitting scheme under § 404 of the Clean Water Act
because it will change the bottom elevation of Lower Slate
Lake, the discharge is nevertheless prohibited by the clearly
applicable and specific performance standard. The plain lan-
guage and structure of the Clean Water Act demonstrate that
5990 SOUTHEAST ALASKA CONSERVATION v. USACE
EPA’s performance standard governs in this case. Also, the
agencies’ statements made during promulgation of the regula-
tion defining “fill material,” as well as their statements made
to Coeur Alaska during the lengthy permitting process, indi-
cate that they intended this result. Thus, the district court
erred in granting summary judgment in favor of the defen-
dants. The case is remanded to the district court for action
pursuant to this opinion.
REVERSED and REMANDED.