OPINION OF THE COURT
COEUR ALASKA, INC. V. SOUTHEAST ALASKACONSERVATION COUNCIL
557 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
NOS. 07-984 AND 07-990
COEUR ALASKA, INC., PETITIONER
07–984
v.
SOUTHEAST ALASKA CONSERVATION COUNCIL
et al.
ALASKA, PETITIONER
07–990 v.
SOUTHEAST ALASKA CONSERVATION COUNCIL
et al.
on writs of certiorari to the united states
court of appeals for the ninth circuit
[June 22, 2009]
Justice Kennedy
delivered the opinion of the Court.
These cases require us to address
two questions under the Clean Water Act (CWA or Act). The first is
whether the Act gives authority to the United States Army Corps of
Engineers, or instead to the Environmental Protection Agency (EPA),
to issue a permit for the discharge of mining waste, called slurry.
The Corps of Engineers has issued a permit to petitioner Coeur
Alaska, Inc. (Coeur Alaska), for a discharge of slurry into a lake
in Southeast Alaska. The second question is whether, when the Corps
issued that permit, the agency acted in accordance with law. We
conclude that the Corps was the appropriate agency to issue the
permit and that the permit is lawful.
With regard to the first question, §404(a) of
the CWA grants the Corps the power to “issue
permits … for the discharge of … fill
material.” 86 Stat. 884; 33 U. S. C. §1344(a). But the EPA
also has authority to issue permits for the discharge of
pollutants. Section 402 of the Act grants the EPA authority to
“issue a permit for the discharge of any pollutant” “[e]xcept as
provided in” §404. 33 U. S. C. §1342(a). We conclude that
because the slurry Coeur Alaska wishes to discharge is defined by
regulation as “fill material,” 40 CFR §232.2 (2008), Coeur Alaska
properly obtained its permit from the Corps of Engineers, under
§404, rather than from the EPA, under §402.
The second question is whether the Corps
permit is lawful. Three environmental groups, respondents here,
sued the Corps under the Administrative Procedure Act, arguing that
the issuance of the permit by the Corps was “not in accordance with
law.” 5 U. S. C. §706(2)(A). The environmental groups are
Southeast Alaska Conservation Council, Sierra Club, and Lynn Canal
Conservation (collectively, SEACC). The State of Alaska and Coeur
Alaska are petitioners here.
SEACC argues that the permit from the Corps is
unlawful because the discharge of slurry would violate an EPA
regulation promulgated under §306(b) of the CWA, 33 U. S. C.
§1316(b). The EPA regulation, which is called a “new source
performance standard,” forbids mines like Coeur Alaska’s from
discharging “process wastewater” into the navigable waters. 40 CFR
§440.104(b)(1). Coeur Alaska, the State of Alaska, and the federal
agencies maintain that the Corps permit is lawful nonetheless
because the EPA’s performance standard does not apply to discharges
of fill material.
Reversing the judgment of the District Court,
the Court of Appeals held that the EPA’s performance standard
applies to this discharge so that the permit from the Corps is
unlawful.
I
A
Petitioner Coeur Alaska plans to
reopen the Kensington Gold Mine, located some 45 miles north of
Juneau, Alaska. The mine has been closed since 1928, but Coeur
Alaska seeks to make it profitable once more by using a technique
known as “froth flotation.” Coeur Alaska will churn the mine’s
crushed rock in tanks of frothing water. Chemicals in the water
will cause gold-bearing minerals to float to the surface, where
they will be skimmed off.
At issue is Coeur Alaska’s plan
to dispose of the mixture of crushed rock and water left behind in
the tanks. This mixture is called slurry. Some 30 percent of the
slurry’s volume is crushed rock, resembling wet sand, which is
called tailings. The rest is water.
The standard way to dispose of slurry is to
pump it into a tailings pond. The slurry separates in the pond.
Solid tailings sink to the bottom, and water on the surface returns
to the mine to be used again.
Rather than build a tailings pond, Coeur
Alaska proposes to use Lower Slate Lake, located some three miles
from the mine in the Tongass National Forest. This lake is
small—800 feet at its widest crossing, 2,000 feet at its longest,
and 23 acres in area. See App. 138a, 212a. Though small, the lake
is 51 feet deep at its maximum. The parties agree the lake is a
navigable water of the United States and so is subject to the CWA.
They also agree there can be no discharge into the lake except as
the CWA and any lawful permit allow.
Over the life of the mine, Coeur Alaska
intends to put 4.5 million tons of tailings in the lake. This will
raise the lakebed 50 feet—to what is now the lake’s surface—and
will increase the lake’s area from 23 to about 60 acres.
Id., at 361a (62 acres), 212a (56 acres). To contain this
wider, shallower body of water, Coeur Alaska will dam the lake’s
downstream shore. The transformed lake will be isolated from other
surface water. Creeks and stormwater runoff will detour around it.
Id., at 298a. Ultimately, lakewater will be cleaned by
purification systems and will flow from the lake to a stream and
thence onward.
Id., at 309a–312a.
B
Numerous state and federal
agencies reviewed and approved Coeur Alaska’s plans. At issue here
are actions by two of those agencies: the Corps of Engineers and
the EPA.
1
The CWA classifies crushed rock
as a “pollutant.” 33 U. S. C. §1362(6). On the one hand, the
Act forbids Coeur Alaska’s discharge of crushed rock “[e]xcept as
in compliance” with the Act. CWA §301(a), 33 U. S. C.
§1311(a). Section 404(a) of the CWA, on the other hand, empowers
the Corps to authorize the discharge of “dredged or fill material.”
33 U. S. C. §1344(a). The Corps and the EPA have together
defined “fill material” to mean any “material [that] has the effect
of … [c]hanging the bottom elevation” of water. 40 CFR
§232.2. The agencies have further defined the “discharge of fill
material” to include “placement of … slurry, or tailings
or similar mining-related materials.”
Ibid.
In these cases the Corps and the
EPA agree that the slurry meets their regulatory definition of
“fill material.” On that premise the Corps evaluated the mine’s
plan for a §404 permit. After considering the environmental factors
required by §404(b), the Corp issued Coeur Alaska a permit to pump
the slurry into Lower Slate Lake. App. 340a–378a.
In granting the permit the Corps followed the
steps set forth by §404. Section 404(b) requires the Corps to
consider the environmental consequences of every discharge it
allows. 33 U. S. C. §1344(b). The Corps must apply guidelines
written by the EPA pursuant to §404(b). See
ibid.; 40 CFR
pt. 230 (EPA guidelines). Applying those guidelines here, the Corps
determined that Coeur Alaska’s plan to use Lower Slate Lake as a
tailings pond was the “least environmentally damaging practicable”
way to dispose of the tailings. App. 366a. To conduct that
analysis, the Corps compared the plan to the proposed
alternatives.
The Corps determined that the environmental
damage caused by placing slurry in the lake will be temporary. And
during that temporary disruption, Coeur Alaska will divert waters
around the lake through pipelines built for this purpose.
Id., at 298a. Coeur Alaska will also treat water flowing
from the lake into downstream waters, pursuant to strict EPA
criteria.
Ibid.
; see Part I–B–2,
infra.
Though the slurry will at first destroy the lake’s small population
of common fish, that population may later be replaced. After mining
operations are completed, Coeur Alaska will help “recla[im]” the
lake by “[c]apping” the tailings with about 4 inches of “native
material.” App. 361a;
id., at 309a. The Corps concluded
that
“[t]he reclamation of the lake will result in more
emergent wetlands/vegetated shallows with moderate values for fish
habitat, nutrient recycling, carbon/detrital export and
sediment/toxicant retention, and high values for wildlife habitat.”
Id., at 361a.
If the tailings did not go into
the lake, they would be placed on nearby wetlands. The resulting
pile would rise twice as high as the Pentagon and cover three times
as many acres. Reply Brief for Petitioner Coeur Alaska 27. If it
were chosen, that alternative would destroy dozens of acres of
wetlands—a permanent loss. App. 365a–366a. On the premise that when
the mining ends the lake will be at least as environmentally
hospitable, if not more so, than now, the Corps concluded that
placing the tailings in the lake will cause less damage to the
environment than storing them above ground: The reclaimed lake will
be “more valuable to the aquatic ecosystem than a permanently
filled wetland … that has lost all aquatic functions and
values.”
Id., at 361a; see also
id., at 366a.
2
The EPA had the statutory
authority to veto the Corps permit, and prohibit the discharge, if
it found the plan to have “an unacceptable adverse effect on
municipal water supplies, shellfish beds and fishery
areas … , wildlife, or recreational areas.” CWA §404(c),
33 U. S. C. §1344(c). After considering the Corps findings,
the EPA did not veto the Corps permit, even though, in its view,
placing the tailings in the lake was not the “environmentally
preferable” means of disposing of them. App. 300a. By declining to
exercise its veto, the EPA in effect deferred to the judgment of
the Corps on this point.
The EPA’s involvement extended
beyond the agency’s veto consideration. The EPA also issued a
permit of its own—not for the discharge from the mine into the lake
but for the discharge from the lake into a downstream creek.
Id., at 287a–331a. Section 402 grants the EPA authority to
“issue a permit for the discharge of any pollutant,” “[e]xcept as
provided in [CWA §404].” 33 U. S. C. §1342(a). The EPA’s §402
permit authorizes Coeur Alaska to discharge water from Lower Slate
Lake into the downstream creek, subject to strict water-quality
limits that Coeur Alaska must regularly monitor. App. 303a–304a,
309a.
The EPA’s authority to regulate this discharge
comes from a regulation, termed a “new source performance
standard,” that it has promulgated under authority granted to it by
§306(b) of the CWA. Section 306(b) gives the EPA authority to
regulate the amount of pollutants that certain categories of new
sources may discharge into the navigable waters of the United
States. 33 U. S. C. §1316(b). Pursuant to this authority, the
EPA in 1982 promulgated a new source performance standard
restricting discharges from new froth-flotation gold mines like
Coeur Alaska’s. The standard is stringent: It allows “no discharge
of process wastewater” from these mines. 40 CFR §440.104(b)(1).
Applying that standard to the discharge of
water from Lower Slate Lake into the downstream creek, the EPA’s
§402 permit sets strict limits on the amount of pollutants the
water may contain. The permit requires Coeur Alaska to treat the
water using “reverse osmosis” to remove aluminum, suspended solids,
and other pollutants. App. 298a;
id., at 304a. Coeur
Alaska must monitor the water flowing from the lake to be sure that
the pollutants are kept to low, specified minimums.
Id.,
at 326a–330a.
C
SEACC brought suit against the
Corps of Engineers and various of its officials in the United
States District Court for the District of Alaska. The Corps permit
was not in accordance with law, SEACC argued, for two reasons.
First, in SEACC’s view, the permit was issued by the wrong
agency—Coeur Alaska ought to have sought a §402 permit from the
EPA, just as the company did for the discharge of water from the
lake into the downstream creek. See Part I–B–2,
supra.
Second, SEACC contended that regardless of which agency issued the
permit, the discharge itself is unlawful because it will violate
the EPA new source performance standard for froth-flotation gold
mines. (This is the same performance standard described above,
which the EPA has already applied to the discharge of water from
the lake into the downstream creek. See
ibid.) SEACC
argued that this performance standard also applies to the discharge
of slurry into the lake. It contended further that the performance
standard is a binding implementation of §306. Section 306(e) of the
CWA makes it “unlawful” for Coeur Alaska to “operate” the mine “in
violation of” the EPA’s performance standard. 33 U. S. C.
§1316(e).
Coeur Alaska and the State of
Alaska intervened as defendants. Both sides moved for summary
judgment. The District Court granted summary judgment in favor of
the defendants.
The Court of Appeals for the Ninth Circuit
reversed and ordered the District Court to vacate the Corps of
Engineers’ permit.
Southeast Alaska Conservation Council
v.
United States Army Corps of Engs., 486 F. 3d 638,
654–655 (2007). The court acknowledged that Coeur Alaska’s slurry
“facially meets the Corps’ current regulatory definition of ‘fill
material,’ ”
id., at 644, because it would have the
effect of raising the lake’s bottom elevation. But the court also
noted that the EPA’s new source performance standard “prohibits
discharges from froth-flotation mills.”
Ibid. The Court of
Appeals concluded that “[b]oth of the regulations appear to apply
in this case, yet they are at odds.”
Ibid. To resolve the
conflict, the court turned to what it viewed as “the plain language
of the Clean Water Act.”
Ibid. The court held that the
EPA’s new source performance standard “applies to discharges from
the froth-flotation mill at Coeur Alaska’s Kensington Gold Mine
into Lower Slate Lake.”
Ibid.
In addition to the text of the CWA, the Court
of Appeals also relied on the agencies’ statements made when
promulgating their current and prior definitions of “fill
material.” These statements, in the Court of Appeals’ view,
demonstrated the agencies’ intent that the EPA’s new source
performance standard govern discharges like Coeur Alaska’s.
Id., at 648–654.
The Court of Appeals concluded that Coeur
Alaska required a §402 permit for its slurry discharge, that the
Corps lacked authority to issue such a permit under §404, and that
the proposed discharge was unlawful because it would violate the
EPA new source performance standard and §306(e).
The decision of the Court of Appeals
in effect reallocated the division of responsibility that the Corps
and the EPA had been following. The Court granted certiorari. 554
U. S. ___ (2008). We now hold that the decision of the Court of
Appeals was incorrect.
II
The question of which agency has
authority to consider whether to permit the slurry discharge is our
beginning inquiry. We consider first the authority of the EPA and
second the authority of the Corps. Our conclusion is that under the
CWA the Corps had authority to determine whether Coeur Alaska was
entitled to the permit governing this discharge.
A
Section 402 gives the EPA
authority to issue “permit[s] for the discharge of any pollutant,”
with one important exception: The EPA may not issue permits for
fill material that fall under the Corps’ §404 permitting authority.
Section 402(a) states:
“
Except as provided in … [CWA §404,
33 U. S. C. §1344], the Administrator may . . .
issue a permit for the discharge of any pollutant, …
notwithstanding [CWA §301(a), 33 U. S. C. §1311(a)], upon
condition that such discharge will meet either (A) all applicable
requirements under [CWA §301, 33 U. S. C. §1311(a); CWA §302,
33 U. S. C. §1312; CWA §306, 33 U. S. C. §1316; CWA §307,
33 U. S. C. §1317; CWA §308, 33 U. S. C. §1318; CWA §403,
33 U. S. C. §1343], or (B) prior to the taking of necessary
implementing actions relating to all such requirements, such
conditions as the Administrator determines are necessary to carry
out the provisions of this chapter.” 33 U. S. C. §1342(a)(1)
(emphasis added).
Section 402 thus forbids the EPA from exercising
permitting authority that is “provided [to the Corps] in” §404.
This is not to say the EPA has no role with
respect to the environmental consequences of fill. The EPA’s
function is different, in regulating fill, from its function in
regulating other pollutants, but the agency does exercise some
authority. Section 404 assigns the EPA two tasks in regard to fill
material. First, the EPA must write guidelines for the Corps to
follow in determining whether to permit a discharge of fill
material. CWA §404(b); 33 U. S. C. §1344(b). Second, the Act
gives the EPA authority to “prohibit” any decision by the Corps to
issue a permit for a particular disposal site. CWA §404(c); 33 U.
S. C. §1344(c). We, and the parties, refer to this as the
EPA’s power to veto a permit.
The Act is best understood to provide that if
the Corps has authority to issue a permit for a discharge under
§404, then the EPA lacks authority to do so under §402.
Even if there were ambiguity on this point,
the EPA’s own regulations would resolve it. Those regulations
provide that “[d]ischarges of dredged or fill material into waters
of the United States which are regulated under section 404 of CWA”
“do not require [§402] permits” from the EPA. 40 CFR §122.3.
In SEACC’s view, this regulation implies that
some “fill material” discharges are not regulated under §404—else,
SEACC asks, why would the regulation lack a comma before the word
“which,” and thereby imply that only a subset of “discharges
of … fill material” are “regulated under section 404.”
Ibid.
The agencies, however, have interpreted this
regulation otherwise. In the agencies’ view the regulation
essentially restates the text of §402, and forbids the EPA from
issuing permits for discharges that “are regulated under section
404.” 40 CFR §122.3(b); cf. CWA §402(a) (“[e]xcept as provided
in … [§404], the Administrator may . . . issue
a permit”). Before us, the EPA confirms this reading of the
regulation. Brief for Federal Respondents 27. The agency’s
interpretation is not “plainly erroneous or inconsistent with the
regulation”; and so we accept it as correct.
Auer v.
Robbins,
519 U. S. 452, 461
(1997) (internal quotation marks omitted).
The question whether the EPA is the proper
agency to regulate the slurry discharge thus depends on whether the
Corps of Engineers has authority to do so. If the Corps has
authority to issue a permit, then the EPA may not do so. We turn to
the Corps’ authority under §404.
B
Section 404(a) gives the Corps
power to “issue permits … for the discharge of dredged or fill
material.” 33 U. S. C. §1344(a). As all parties concede, the
slurry meets the definition of fill material agreed upon by the
agencies in a joint regulation promulgated in 2002. That regulation
defines “fill material” to mean any “material [that] has the effect
of … [c]hanging the bottom elevation” of water—a
definition that includes “slurry, or tailings or similar
mining-related materials.” 40 CFR §232.2.
SEACC concedes that the slurry to
be discharged meets the regulation’s definition of fill material.
Brief for Respondent SEACC et al. 20. Its concession on this
point is appropriate because slurry falls well within the central
understanding of the term “fill,” as shown by the examples given by
the regulation. See 40 CFR §232.2 (“Examples of such fill material
include, but are not limited to: rock, sand, soil,
clay … .”). The regulation further excludes “trash or
garbage” from its definition.
Ibid. SEACC expresses a
concern that Coeur Alaska’s interpretation of the statute will lead
to §404 permits authorizing the discharges of other solids that are
now restricted by EPA standards. Brief for Respondent SEACC
et al. 44–45 (listing, for example, “feces and uneaten feed,”
“ litter, ” and waste produced in “battery
manufacturing”). But these extreme instances are not presented by
the cases now before us. If, in a future case, a discharger of one
of these solids were to seek a §404 permit, the dispositive
question for the agencies would be whether the solid at issue—for
instance, “feces and uneaten feed”—came within the regulation’s
definition of “fill.” SEACC cites no instance in which the agencies
have so interpreted their fill regulation. If that instance did
arise, and the agencies were to interpret the fill regulation as
SEACC fears, then SEACC could challenge that decision as an
unlawful interpretation of the fill regulation; or SEACC could
claim that the fill regulation as interpreted is an unreasonable
interpretation of §404. The difficulties are not presented here,
however, because the slurry meets the regulation’s definition of
fill.
Rather than challenge the agencies’ decision
to define the slurry as fill, SEACC instead contends that §404
contains an implicit exception. According to SEACC, §404 does not
authorize the Corps to permit a discharge of fill material if that
material is subject to an EPA new source performance standard.
But §404’s text does not limit its grant of
power in this way. Instead, §404 refers to all “fill material”
without qualification. Nor do the EPA regulations support SEACC’s
reading of §404. The EPA has enacted guidelines, pursuant to
§404(b), to guide the Corps permitting decision. 40 CFR pt. 230.
Those guidelines do not strip the Corps of power to issue permits
for fill in cases where the fill is also subject to an EPA new
source performance standard.
SEACC’s reading of §404 would create numerous
difficulties for the regulated industry. As the regulatory regime
stands now, a discharger must ask a simple question—is the
substance to be discharged fill material or not? The fill
regulation, 40 CFR §232.2, offers a clear answer to that question;
and under the agencies’ view, that answer decides the matter—if the
discharge is fill, the discharger must seek a §404 permit from the
Corps; if not, only then must the discharger consider whether any
EPA performance standard applies, so that the discharger requires a
§402 permit from the EPA.
Under SEACC’s interpretation, however, the
discharger would face a more difficult problem. The discharger
would have to ask—is the fill material also subject to one of the
many hundreds of EPA performance standards, so that the permit must
come from the EPA, not the Corps? The statute gives no indication
that Congress intended to burden industry with that confusing
division of permit authority.
The regulatory scheme discloses a defined, and
workable, line for determining whether the Corps or the EPA has the
permit authority. Under this framework, the Corps of Engineers, and
not the EPA, has authority to permit Coeur Alaska’s discharge of
the slurry.
III
A second question remains: In
issuing the permit did the Corps act in violation of a statutory
mandate so that the issuance was “not in accordance with law”? 5 U.
S. C. §706(2)(A). SEACC contends that the slurry discharge
will violate the EPA’s new source performance standard and that the
Corps permit is made “unlawful” by CWA §306(e). Petitioners and the
agencies argue that the permit is lawful because the EPA
performance standard, and §306(e), do not apply to fill material
regulated by the Corps. In order to determine whether the Corps
permit is lawful we must answer the question: Do EPA performance
standards, and §306(e), apply to discharges of fill material?
We address in turn the statutory
text of the CWA, the agencies’ regulations construing it, and the
EPA’s subsequent interpretation of those regulations. Because
Congress has not “directly spoken” to the “precise question” of
whether an EPA performance standard applies to discharges of fill
material, the statute alone does not resolve the case.
Chevron
U. S. A. Inc. v.
Natural Resources Defense Council,
Inc.,
467 U. S.
837, 842 (1984). We look first to the agency regulations, which
are entitled to deference if they resolve the ambiguity in a
reasonable manner.
Ibid.; see
United States v.
Mead Corp., 533 U. S. 218, 226–227
(2001). But the regulations, too, are ambiguous, so we next turn to
the agencies’ subsequent interpretation of those regulations.
Id., at 234–238;
Auer, 519 U. S., at 461. In an
internal memorandum the EPA explained that its performance
standards do not apply to discharges of fill material. That
interpretation is not “plainly erroneous or inconsistent with the
regulation[s],” and so we accept it as correct.
Ibid.
(internal quotation marks omitted). Though SEACC contends that the
agencies’ interpretation is not entitled to deference because it
contradicts the agencies’ published statements and prior practice,
we disagree with SEACC’s reading of those statements and of the
regulatory record.
A
As for the statutory argument,
SEACC claims the CWA §404 permit is unlawful because §306(e)
forbids the slurry discharge. Petitioners and the federal agencies,
in contrast, contend that §306(e) does not apply to the slurry
discharge.
1
To address SEACC’s statutory
argument, it is necessary to review the EPA’s responsibilities
under the CWA. As noted, §306 empowers the EPA to regulate the
froth-flotation gold mining industry. See 33 U. S. C.
§1316(b). Pursuant to this authority, EPA promulgated the new
source performance standard relied upon by SEACC. The standard is
stringent. If it were to apply here, it would allow “no discharge
of process wastewater” from the mine. 40 CFR §440.104(b)(1).
The term “process wastewater”
includes solid waste. So the regulation forbids not only pollutants
that dissolve in water but also solid pollutants suspended in
water—what the agency terms “total suspended solids,” or TSS. See
§440.104(a) (limiting the amount of TSS from other kinds of mines);
see also EPA Development Document for Effluent Limitations
Guidelines and Standards for the Ore Mining and Dressing Point
Source Category 157–158 (Nov. 1982) (the amount of TSS in
“wastewater” from froth-flotation mines is “generally high”);
id., at 175 (Table VI–6) (measuring the amounts of TSS in
samples of froth-flotation mines’ discharges);
id., at 194
(stating an intent to “regulat[e]” TSS);
id., at 402
(evaluating the costs of constructing a “settling pond”);
id., at 535 (concluding that even in mountainous regions,
a froth-flotation mine will be able to construct a “tailings
impoundment” to “provide a disposal area for mill tailings”).
Were there any doubt about whether the EPA’s
new source performance standard forbade solids as well as soluble
pollutants, the agency’s action in these cases would resolve it.
Here, the EPA’s §402 permit authorizes Coeur Alaska to discharge
water from Lower Slate Lake into a downstream creek, provided the
water meets the quality requirements set by the performance
standard. This demonstrates that the performance standard regulates
solid waste. The EPA’s permit not only restricts the amount of
total suspended solids, App. 327a (Table 3), but also forbids the
mine from allowing any “floating solids” to flow from the lake.
Id., at 328a. No party disputes the EPA’s authority to
regulate these discharges of solid mining waste; and no party
questions the validity of the EPA’s new source performance standard
when it is applicable.
When the performance standard applies to a
point source, §306(e) makes it “unlawful” for that point source to
violate it: “[I]t 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.” CWA §306(e), 33 U.
S. C. §1316(e).
SEACC argues that this provision, §306(e),
forbids the mine from discharging slurry into Lower Slate Lake.
SEACC contends the new source performance standard is, in the words
of §306(e), “applicable to” the mine. Both the text of the
performance standard and the EPA’s application of it to the
discharge of mining waste from Lower Slate Lake demonstrate that
the performance standard is “applicable to” Coeur Alaska’s mine in
some circumstances. And so, SEACC reasons, it follows that because
the new source performance standard forbids even minute discharges
of solid waste, it also forbids the slurry discharge, 30% of which
is solid waste.
2
For their part, the State of
Alaska and the federal agencies claim that the Act is unambiguous
in the opposite direction. They rely on §404 of the Act. As
explained above, that section authorizes the Corps of Engineers to
determine whether to issue a permit allowing the discharge of the
slurry. Petitioners and the agencies argue that §404 grants the
Corps authority to do so without regard to the EPA’s new source
performance standard or the §306(e) prohibition discussed
above.
Petitioners and the agencies make
two statutory arguments based on §404’s silence in regard to §306.
First, they note that nothing in §404 requires the Corps to
consider the EPA’s new source performance standard or the §306(e)
prohibition. That silence advances the argument that §404’s grant
of authority to “issue permits” contradicts §306(e)’s declaration
that discharges in violation of new source performance standards
are “unlawful.”
Second, petitioners and the agencies point to
§404(p), which protects §404 permitees from enforcement actions by
the EPA or private citizens:
“Compliance with a permit issued pursuant to this
section … shall be deemed compliance, for purposes of
sections 1319 [CWA §309] and 1365 [CWA §505] of this title, with
sections 1311 [CWA §301], 1317 [CWA §307], and 1343 [CWA §403] of
this title.” 33 U. S. C. §1344(p).
Here again, their argument is that silence is
significant. Section 404(p) protects the permitee from lawsuits
alleging violations of CWA §301 (which bars the discharge of “any
pollutant” “except as in compliance” with the Act), §307 (which
bars the discharge of “toxic pollutants”); and §403 (which bars
discharges into the sea). But §404(p) does not in express terms
protect the permitee from a lawsuit alleging a violation of §306(e)
or of the EPA’s new source performance standards. Section 404(p)’s
silence regarding §306 is made even more significant because a
parallel provision in §402 does protect a §402 permitee from an
enforcement action alleging a violation of §306. CWA §402(k), 33 U.
S. C. §1342(k).
In our view, Congress’ omission of §306 from
§404, and its inclusion of §306 in §402(k), is evidence that
Congress did not intend §306(e) to apply to Corps §404 permits or
to discharges of fill material. If §306 did apply, then the Corps
would be required to evaluate each permit application for
compliance with §306, and issue a permit only if it found the
discharge would comply with §306. But even if that finding were
made, it is not clear that the §404 permitee would be protected
from a suit seeking a judicial determination that the discharge
violates §306.
3
The CWA is ambiguous on the
question whether §306 applies to discharges of fill material
regulated under §404. On the one hand, §306 provides that a
discharge that violates an EPA new source performance standard is
“unlawful”—without any exception for fill material. On the other
hand, §404 grants the Corps blanket authority to permit the
discharge of fill material—without any mention of §306. This
tension indicates that Congress has not “directly spoken” to the
“precise question” of whether §306 applies to discharges of fill
material.
Chevron, 467 U. S., at 842.
B
Before turning to how the
agencies have resolved that question, we consider the formal
regulations that bear on §§306 and 404. See
Mead, 533 U.
S., at 234–238. The regulations, like the statutes, do not address
the question whether §306, and the EPA new source performance
standards promulgated under it, apply to §404 permits and the
discharges they authorize. There is no regulation, for example,
interpreting §306(e)’s text—“standard of performance applicable to
such source”—to mean that a performance standard ceases to be
“applicable” the moment the discharge qualifies as fill material,
which would resolve the cases in petitioners’ favor. Nor is there a
regulation providing that the Corps, in deciding whether to grant a
permit under §404, must deny that permit if the discharge would
violate §306(e), which would decide the cases for SEACC.
Rather than address the tension
between §§306 and 404, the regulations instead implement the
statutory framework without elaboration on this point. Each of the
two principal regulations, which have been mentioned above, seems
to stand on its own without reference to the other. The EPA’s new
source performance standard contains no exception for fill
material; and it forbids any discharge of “process wastewater,” a
term that includes solid wastes. 40 CFR §440.104(b)(1); see Part
III–A–1,
supra. The agencies’ joint regulation defining
fill material is also unqualified. It includes “slurry, or tailings
or similar mining-related materials” in its definition of a
“discharge of fill material,” 40 CFR §232.2; and it contains no
exception for slurry that is regulated by an EPA performance
standard.
The parties point to additional regulations,
but these provisions do not offer a clear basis of reconciliation.
An EPA regulation, mentioned above, provides that “[d]ischarges of
dredged or fill material into waters of the United States which are
regulated under section 404 of CWA” “do not require [§402] permits”
from the EPA. §122.3. As we have explained, however, this merely
states that a permit for this discharge cannot be issued by the
EPA. See Part II,
supra. The regulation does not answer
the question whether the EPA’s new source performance standard, and
§306(e), apply to a discharge regulated by the Corps under
§404.
The agencies also direct us to the §404(b)
guidelines written by the EPA to guide the Corps permitting
decision. See 40 CFR pt. 230. The agencies note that these
guidelines do not expressly require the Corps, in issuing a permit,
to consider whether the discharge would violate EPA’s performance
standards. Here we think failure to mention §306 or the EPA new
source performance standards does offer some indication that these
are not relevant to the §404 permit, though the argument falls
short of being conclusive. The Corps’ own regulations require the
agency to evaluate permit applications “for compliance with
applicable [EPA] effluent limitations.” 33 CFR §320.4(d) (2008).
The regulations do not answer whether the new source performance
standard is “applicable” to a discharge of fill material.
C
The regulations do not give a
definitive answer to the question whether §306 applies to
discharges regulated by the Corps under §404, but we do find that
agency interpretation and agency application of the regulations are
instructive and to the point.
Auer, 519 U. S., at 461. The
question is addressed and resolved in a reasonable and coherent way
by the practice and policy of the two agencies, all as recited in a
memorandum written in May 2004 by Diane Regas, then the Director of
the EPA’s Office of Wetlands, Oceans and Watersheds, to Randy
Smith, the Director of the EPA’s regional Office of Water with
responsibility over the mine. App. 141a–149a (Regas Memorandum).
The Memorandum, though not subject to sufficiently formal
procedures to merit
Chevron deference, see
Mead,
supra, at 234–238, is entitled to a measure of deference
because it interprets the agencies’ own regulatory scheme. See
Auer,
supra, at 461.
The Regas Memorandum
explains:
“As a result [of the fact that the discharge is
regulated under §404], the regulatory regime applicable to
discharges under section 402, including effluent limitations
guidelines and standards, such as those applicable to gold ore
mining … do not apply to the placement of tailings into
the proposed impoundment [of Lower Slate Lake]
. See 40 CFR
§122.3(b).” App. 144a–145a.
The regulation that the Memorandum cites—40 CFR
§122.3—is one we considered above and found ambiguous. That
regulation provides: “[d]ischarges of dredged or fill material into
waters of the United States which are regulated under section 404
of CWA” “do not require [§402] permits.” The Regas Memorandum takes
an instructive interpretive step when it explains that because the
discharge “do[es] not require” an EPA permit,
ibid., the
EPA’s performance standard “do[es] not apply” to the discharge.
App. 145a. The Memorandum presents a reasonable interpretation of
the regulatory regime. We defer to the interpretation because it is
not “plainly erroneous or inconsistent with the regulation[s].”
Auer, supra, at 461 (internal quotation marks omitted).
Five factors inform that conclusion.
First, the Memorandum preserves a role for the
EPA’s performance standard. It confines the Memorandum’s scope to
closed bodies of water, like the lake here. App. 142a–143a,
n. 1. When slurry is discharged into a closed body of water,
the Memorandum explains, the EPA’s performance standard retains an
important role in regulating the discharge into surrounding waters.
The Memorandum does not purport to invalidate the EPA’s performance
standard.
Second, the Memorandum acknowledges that this
is not an instance in which the discharger attempts to evade the
requirements of the EPA’s performance standard. The Kensington Mine
is not, for example, a project that smuggles a discharge of
EPA-regulated pollutants into a separate discharge of
Corps-regulated fill material. The instant cases do not present a
process or plan designed to manipulate the outer boundaries of the
definition of “fill material” by labeling minute quantities of
EPA-regulated solids as fill. The Memorandum states that when a
discharge has only an “incidental filling effect,” the EPA’s
performance standard continues to govern that discharge.
Id., at 145a.
Third, the Memorandum’s interpretation
preserves the Corps’ authority to determine whether a discharge is
in the public interest. See 33 CFR §320.4(a)(1); 40 CFR §230.10.
The Corps has significant expertise in making this determination.
Applying it, the Corps determined that placing slurry in the lake
will improve that body of water by making it wider, shallower, and
so more capable of sustaining aquatic life. The Corps determined,
furthermore, that the alternative—a heap of tailings larger than
the Pentagon placed upon wetlands—would cause more harm to the
environment. Because the Memorandum preserves an important role for
the Corps’ expertise, its conclusion that the EPA’s performance
standard does not apply is a reasonable one.
Fourth, the Regas Memorandum’s interpretation
does not allow toxic pollutants (as distinguished from other, less
dangerous pollutants, such as slurry) to enter the navigable
waters. The EPA has regulated toxic pollutants under a separate
provision, §307 of the CWA, and the EPA’s §404(b) guidelines
require the Corps to deny a §404 permit for any discharge that
would violate the EPA’s §307 toxic-effluent limitations. 40 CFR
§230.10(b)(2).
Fifth, as a final reason to defer to the Regas
Memorandum, we find it a sensible and rational construction that
reconciles §§306, 402, and 404, and the regulations implementing
them, which the alternatives put forward by the parties do not.
SEACC’s argument, that §402 applies to this discharge and not §404,
is not consistent with the statute and regulations, as already
noted. See Part II,
supra.
The Court requested the parties to submit
supplemental briefs addressing whether the CWA contemplated that
both agencies would issue a permit for a discharge. 556 U. S. ___
(2009). A two-permit regime would allow the EPA to apply its
performance standard, while the Corps could apply its §404(b)
criteria. The parties agree, however, that a two-permit regime is
contrary to the statute and the regulations. We conclude that this
is correct. A two-permit regime would cause confusion, delay,
expense, and uncertainty in the permitting process. In agreement
with all of the parties, we conclude that, when a permit is
required to discharge fill material, either a §402 or a §404 permit
is necessary. Here, we now hold, §404 applies, not §402. See Part
II,
supra.
The Regas Memorandum’s interpretation of the
agencies’ regulations is consistent with the regulatory scheme as a
whole. The Memorandum preserves a role for the EPA’s performance
standards; it guards against the possibility of evasion of those
standards; it employs the Corps’ expertise in evaluating the
effects of fill material on the aquatic environment; it does not
allow toxic pollutants to be discharged; and we have been offered
no better way to harmonize the regulations. We defer to the EPA’s
conclusion that its performance standard does not apply to the
initial discharge of slurry into the lake but applies only to the
later discharge of water from the lake into the downstream
creek.
D
SEACC argues against deference to
the Regas Memorandum. In its view the Regas Memorandum is contrary
to published agency statements and earlier agency practice. SEACC
cites three agency statements: A 1986 “memorandum of understanding”
between the EPA and the Corps regarding the definition of fill
material; the preamble to the agencies’ current 2002 fill
regulation; and comments made by the agencies in promulgating the
2002 fill regulation. These arguments are not convincing.
1
In 1986, to reconcile their
then-differing definitions of “fill material,” the EPA and the
Corps issued a “memorandum of agreement.” 51 Fed. Reg. 8871 (MOA).
The memorandum was not made subject to notice-and-comment
procedures, but it was published in the Federal Register. It
defined the statutory term “fill material” until the current
definition took effect in 2002. Brief for Federal Respondents
30–31, n. 8.
SEACC points to paragraph B(5) of
the MOA, which reads:
“[A] pollutant (other than dredged material) will
normally be considered by EPA and the Corps to be subject to
section 402 if it is a discharge in liquid, semi-liquid, or
suspended form or if it is a discharge of solid material of a
homogeneous nature normally associated with single industry
wastes . . . . These materials include placer mining
wastes, phosphate mining wastes, titanium mining wastes, sand and
gravel wastes, fly ash, and drilling muds. As appropriate, EPA and
the Corps will identify additional such materials.” 51 Fed. Reg.
8872.
It is true, as SEACC notes, that this passage
suggests that §402 will “normally” apply to discharges of
“suspended”—
i.e., solid—pollutants. But that statement is
not contrary to the Regas Memorandum, which acknowledges that the
EPA retains authority under §402 to regulate the discharge of
suspended solids from Lower Slate Lake into downstream waters. This
passage does not address the question presented by these cases, and
answered by the Regas Memorandum, as to whether the EPA’s
performance standard applies when the discharge qualifies as fill
material. In fact, the MOA’s preamble suggests that when a
discharge qualifies as “fill material,” the Corps retains authority
to regulate it under §404:
“Discharges listed in the Corps definition of
‘discharge of fill material,’ … remain subject to section
404 even if they occur in association with discharges of wastes
meeting the criteria in the agreement for section 402 discharges.”
Id., at 8871.
The MOA is quite consistent with
the agencies’ determination that the Corps regulates all discharges
of fill material and that §306 does not apply to these
discharges.
2
SEACC draws our attention to the
preamble of the current fill material regulation. 67 Fed. Reg.
31129 (2002) (final rule). It cites the opening passages of the
preamble, which state:
“[T]oday’s rule is generally consistent with
current agency practice and so it does not expand the types of
discharges that will be covered under section 404.”
Id.,
at 31133.
In SEACC’s view, this passage demonstrates that the
fill rule was not intended to displace the pre-existing
froth-flotation gold mine performance standard, which has been on
the books since 1982.
The preamble goes on to say, in a section
entitled “Effluent Guideline Limitations and 402 Permits”:
“[W]e emphasize that today’s rule generally is
intended to maintain our existing approach to regulating 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. Rather, effluent guidelines restrict discharges 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 settling 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 continue 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.”
Id., at 31135.
Although the preamble asserts it does not change
agency policy with regard to EPA performance standards and §402
permitting decisions, it is explicit in noting that the EPA has
“never sought to regulate fill material under effluent guidelines.”
Ibid. The preamble, then, is consistent with the Regas
Memorandum. If a discharge does not qualify as fill material, the
EPA’s new source performance standard applies. If the discharge
qualifies as fill, the performance standard does not apply; and
there was no earlier agency practice or policy to the contrary.
3
SEACC also cites remarks made by
the agencies in response to public comments on the proposed fill
material regulation. App. 22a–127a. These remarks were incorporated
by reference into the administrative record. 67 Fed. Reg.
31131.
Responding to a question about
whether “mine tailings” would be “subject to section 404 regulation
as opposed to section 402” under the 2002 fill regulation, the
agencies stated:
“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 considered a discharge of fill
material. Nevertheless, if EPA has previously determined that
certain materials are subject to an [effluent limitation guideline]
under specific circumstances, then that determination remains
valid. Moreover, … permits issued pursuant to section 402
are intended to regulate process water and provide effluent limits
that are protective of receiving water quality. This distinction
provides the framework for today’s rule.” App. 48a.
This statement is not conclusive of the issue.
SEACC notes that this response, like the regulation’s preamble,
pledges that EPA’s “previou[s] … determination[s]” with
regard to the application of performance standards “remai[n]
valid.” But, as noted above, the Regas Memorandum has followed this
policy by applying the EPA’s performance standard to the discharge
of water from the lake into the downstream creek. The response does
not state that the EPA will apply its performance standards to
discharges of fill material.
4
The agencies’ published
statements indicate adherence to the EPA’s previous application and
interpretation of its performance standards. SEACC cannot show that
the agencies have changed their interpretation or application of
their regulations.
SEACC cites no instance in which
the EPA has applied one of its performance standards to a discharge
of fill material. By contrast, Coeur Alaska cites two instances in
which the Corps issued a §404 permit authorizing a mine to
discharge solid waste (tailings) as fill material. See Brief for
Petitioner Coeur Alaska 40–42. SEACC objects that those two §404
permits authorized discharges that used the tailings to construct
useful structures—a dam in one case, a tailings pond in another.
Here, by contrast, SEACC contends that the primary purpose of the
discharge is to use a navigable water to dispose of waste.
Ibid. But that objection misses the point. The two §404
permits cited by Coeur Alaska illustrate that the agencies did not
have a prior practice of applying EPA performance standards to
discharges of mining wastes that qualify as fill material.
SEACC has not demonstrated that the agencies
have changed their policy, and it cannot show that the Regas
Memorandum is contrary to the agencies’ published statements.
* * *
We accord deference to the
agencies’ reasonable decision to continue their prior practice.
The judgment of the Court of
Appeals is reversed, and these cases are remanded for further
proceedings consistent with this opinion.
It is so ordered.
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