Petition for Writ of Certiorari — City of Albuquerque v. Browner

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(\) Supreme Court, U.S.

FILED

961587 APR 7 1997

NO. ___Oerge OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

CITY OF ALBUQUERQUE,

Petitioner,

versus

CAROL M. BROWNER, OR HER SUCCESSOR

AS ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

”

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

‘

Rosert M. Wuite Bruce S. GARBER

City Attorney GARBER AND HALLMARK, P.C.

Grecory P. SmitH Post Office Box 850

Assistant City Attorney Santa Fe, NM 87504-0850

City of Albuquerque (505) 983-3233

Post Office Box 2248

Albuquerque, NM

87103-2248

(505) 768-4500

Counsel for Petitioner

Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6954

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. Can the United States Environmental Protection

Agency approve and enforce Indian Pueblo Water Quality

Standards beyond Pueblo Boundaries when those stan-

dards have no scientific or rational basis?

2. Is United States Environmental Protection

Agency action which forces the City of Albuquerque to

spend taxpayer money to protect Indian Pueblo religious

uses of river water allowable under the establishment

clause?

3. Does the United States Environmental Protection

Agency’s unreasonable consequences resolution process

comply with the Clean Water Act Mandate when it is not

binding and denies standing to affected parties?

—

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........--- i

TABLE OF CONTENTS........-----222seetereteeee ii

TABLE OF AUTHORITIES ........-----+++eeeeeeee> iv

OPINIONS BELOW........----:seeeeec reece 1

JURISDICTION .......-- es ee reece cree crete teense 1

CONSTITUTIONAL PROVISIONS, STATUTES, AND

REGULATIONS INVOLVED .......-------+++++5: 1

STATEMENT OF THE CASE.......----++eeeeeeee 6

REASONS FOR GRANTING THE WRIT ........--- 8

I. EPA CANNOT APPROVE AND ENFORCE

INDIAN PUEBLO WATER QUALITY STAN-

DARDS BEYOND TRIBAL BOUNDARIES

WHEN THOSE STANDARDS ARE NOT SUP-

PORTED BY A SCIENTIFIC OR RATIONAL

Ae mon cescaceSheeekeeeeh bem eebenenees 4

A. The Pueblo Standards must have a scien-

tific or rational basis .........---++++++++: y

B. The Pueblo Standards should not be

enforced beyond Pueblo boundaries....... 13

Il. EPA APPROVAL OF THE ISLETA PUEBLO

CEREMONIAL AND RELIGIOUS USE STAN-

DARD VIOLATES THE ESTABLISHMENT

CEATIEE ogc kcccccuctacnnsbeeeheeseunhueeenes 14

Ill. THE EPA DISPUTE RESOLUTION REGULA-

TION DOES NOT MEET THE CWA MANDATE 18

A. The EPA dispute resolution regulation fails

to meet the statutory mandate that unrea-

sonable consequences be resolved......... 18

iii

TABLE OF CONTENTS - Continued

Page

B. EPA’S dispute resolution mechanism fails to

protect the interests of upstream dischargers

as mandated by the Clean Water Act ..... 20

I a iia Cts dike’ telih tle wa « hn a x vi 23

INDEX TO APPENDICES

Appendix A October 7, 1396 Opinion of the

United States Court of Appeals for

the Tenth Circuit affirming the

United States District Court for the

District of New Mexico, 93 F.3d

ee MGs Pakhs vandis Ss ec ¥ co App. 1

Appendix B October 21, 1993 Opinion of the

United States District Court for the

District of New Mexico, 865

ONIED cM sin'a'y dee od 6S nies App. 33

Appendix C January 7, 1997 Tenth Circuit

Court of Appeals Order denying

the City of Albuquerque’s Petition

for Rehearing and Suggestion for

Rehearing En Banc.............. App. 50

Appendix D 33 U.S.C. § 1313(c).............. App. 52

Appendix E 40 C.FR. § 131.7................ App. 54

OOOO OOovovV3 is

a ee ea

TABLE OF AUTHORITIES

Page

CASES

American Mining Congress, 772 F.2d 617 (10th, Cir.

1985), cert. denied, 476 U.S. 1158 (1986)............. 8

Badoni v. Higgenson, 638 F.2d 172 (10th Cir. 1980) .... 18

Bar MK Ranches v. Yvetter, 994 F.2d 734 (10th Cir.

PS rr ee Dele PE SN Dicer Aeris (Uk EGS eae 11

Board of Education v. Allen, 392 U.S. 236 (1968) ...... 14

Bowman Transportation, Inc. v. Arkansas-Best Freight

Sephee; 1G. SE Ua BOE TESTE). cnn abscess ccceecess 10

Burlington Truck Lines, Inc. v. United States, 371

Sis Ee GEE Ah tae oases Reaescee bdnste ws tonuaees 10

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

Oe Rae en a ea ne Eo ee 0 es 6 oes 10

Colorado Healthcare Association v. Colorado Depart-

ment of Social Services, 842 F.2d 1158 (10th Cir.

ROT ck accs cer beuctas Siete Cae cae dan ee eis es 12

Duro 0. Ratna; GS TS. G76 CEFR 6 oc ccs cc ccccccccsny 13

Ema ©. Vileie, STO US, Gli CHIC) ai cicncsss sce cavers 14

Environmental Defense Fund v. Costle, 657 F.2d 275

rt Ale OS. . a) pre A on pe aan ne 9

Epperson v. Arkansas, 393 U.S. 97 (1968) ............. 14

Fee. me A Re ee. > Se 17

Lemon v. Kurtzman, 403 U.S. 602 (1971).............. 14

Lyng v. Northwest Indian Cemetery Protective Ass’n,

Ga Rie SN 6 5.8 6 tk 6h RR Ns Fads os os 18

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) .... 13

TABLE OF AUTHORITIES - Continued

Page

Montana v. U.S., 450 U.S. we TR is ee 13

Motor Vehicle Mfrs. Assn. v. State Farm Mut., 463

bhai a ssn RET CT Oe ee ae ae St 11

Natural Resources Defense Council v. United States

Environmental Protection Agency, 16 F.3d 1395

SE Se Peso melas cpa Soe ie ee 11

SEC v. Chenery Corp., 332 U.S. 194 cd es 11

Sierra Club v. EPA, 540 F.2d 1114 (D.C. Cir. 1976).....9

Sierra Club v. EPA, 995 F.2d 1478 (9th Cir. 1993)..... 20

Stone v. Graham, 449 US. 39 SRR 6 xcs deeds cee 14

U.S. v. Wheeler, 435 U.S. 313 OO inte giay ay yes 13

Walz v. Tax Commission, 397 U.S. 664 es 14

CONSTITUTIONAL PROVISIONS, STATUTES, REGULATIONS AND RULES

United States Constitution, First Amendment..... 14, 18

5 U.S.C. §§ 500 et OOe ke i Gade eats ees a eee betes. foke 6

FP eles io stbabavasinicty oe 2

Pen by ft vie WL, ook atu Wene ce ~ 9

i Ls, |, | aa an a nee cn i Ae

5 U.S.C. § 706(2)(A) and re yea 2, 9, 19

5 U.S.C. § 706(2)(A)-(D)........00.000000000006.. ae

PE EN ised ks 6W)cos askance 1

TABLE OF AUTHORITIES - Continued

Page

28 U.S.C. §§ 2201-2202.......- sere eee eeer eee ere cece 6

33 U.S.C. § 1313(c) 0... eee e rece cree errr ee eeences 2, 16

33 U.S.C. § 1341(a)(2)... 0. eee rece eee eee rere eee eeees 3

33 U.S.C. § 1370...... cece cece rece eeeerecceesenes 4,13

33 U.S.C. § 1377... . cece cere ccceeceseeecencvcccenes 6

33 U.S.C. § 1377(e) ....-- eee eee eeees 4, 8, 13, 18, 19, 20

AO C.B.R. § 131.7...... 0 ccc c eee ce cence neereecesenee 6, 8

40 C.F.R. § 131.7(C).....---+ + eee ce duneeuseyewens ta 20

40 C.B.R. § 131.7(g)(2) «0... cere e eee eee eet eeeeees 21

AO C.B.R. § 131.11 0... cece cece cence eee eee eeeeees Pe |

40 C.F.R. § 131.11(a)(1)... 6. eee e eee eee eee eens » ik

Supreme Court Rule 13.1 ......--seesseeeeeeeeeeeeees 1

OPINIONS BELOW

The October 7, 1996 Opinion of the United States

Court of Appeals for the Tenth Circuit affirming the

United States District Court for the District of New Mex-

ico is reported at 97 F.3d 415 and is reprinted in Appen-

dix A.

The October 21, 1993 Opinion of the United States

District Court for the District of New Mexico is reported

at 865 FSupp. 733 and is reprinted in Appendix B.

The January 7, 1997 Tenth Circuit Court of Appeals

Order denying the City of Albuquerque’s Petition for

Rehearing and Suggestion for Rehearing En Banc is

reprinted in Appendix C.

JURISDICTION

This petition seeks review of the October 7, 1996

Opinion of the United States Court of Appeals for the

Tenth Circuit. The City of Albuquerque’s timely-filed

Petition for Rehearing and Suggestion for Rehearing En

Banc was denied on January 7, 1997. Pursuant to Supreme

Court Rule 13.1, this petition has been filed within 90

days of the denial of rehearing. The Supreme Court's

jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED

The First Amendment to the United States Constitu-

tion states in relevant part:

a a

Amendment I:

Congress shall make no law respecting an

establishment of religion . . .

5 U.S.C. § 706 states in relevant part:

§ 706. Scope of review

To the extent necessary to decision and

when presented, the reviewing court shall

decide all relevant questions of law, inter-

pret constitutional and statutory provisions,

and determine the meaning or applicability

of the terms of an agency action. The

reviewing court shall -

(2) hold unlawful and set aside agency

action, findings, and conclusions found to

be -

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law;

(B) contrary to constitutional right,

power, privilege, or immunity;

authority, or limitations, or short of statu- |

tory right;

(D) without observance of procedure |

required by law;

33 U.S.C. § 1313(c), due to its length, is set forth in |

Appendix D.

33 U.S.C. § 1341(a)(2) states in relevant part:

§ 1341. Certification

(a) Compliance with applicable

requirements; application procedures;

license suspension

(2) . . . Whenever such a discharge may

affect, as determined by the Administrator,

the quality of the waters of any other State,

the Administrator within thirty days of the

date of notice of application for such Fed-

eral license or permit shall so notify such

other State, the licensing or permitting

agency, and the applicant. If, within sixty

days after receipt of such notification, such

other State determines that such discharge

will affect the quality of its waters so as to

violate any water quality requirement in

such State, and within such sixty-day

period notifies the Administrator and the

licensing or permitting agency in writing of

ite objection to the issuance of such license

or permit and requests a public hearing on

such objection, the licensing or permitting

agency shall hold such a hearing. The

Administrator shall at such hearing submit

his evaluation and recommendations with

respect to any such objection to the licens-

ing or permitting agency. Such agency,

based upon the recommendations of such

State, the Administrator, and upon any

additional evidence, if any, presented to the

agency at the hearing, shall condition such

license or permit in such manner as may be

necessary to insure compliance with appli-

cable water quality requirements. If the

imposition of conditions cannot insure such

compliance such agency shall not issue such

license or permit.

33 U.S.C. § 1370 states:

Except as expressly provided in this Act,

nothing in this act shall (1) preclude or deny

the right of any State or political subdivi-

sion thereof or interstate agency to adopt or

enforce (A) any standard or limitation

respecting discharges of pollutants, or (B)

any requirement respecting control or

abatement of pollution; except that if an

effluent limitation, or other limitation, efflu-

ent standard, prohibition, pretreatment

standard, or standard of performance is in

effect under this Act, such State or political

subdivision or interstate agency may not

adopt or enforce any effluent limitation, or

other limitation, effluent standard, prohibi-

tion, pretreatment standard, or standard of

performance which is less stringent than the

effluent limitation, or other limitation, efflu-

ent standard, prohibition, pretreatment

standard, or standard of performance under

this Act; or (2) be construed as impairing or

in any manner affecting any right or juris-

diction of the States with respect to the

waters (including boundary waters) of such

States.

33 U.S.C. § 1377(e) states in relevant part:

(e) Treatment as States

The Administrator is authorized to treat

an Indian tribe as a State for purposes of

subchapter II of this chapter and sections

1254, 1256, 1313, 1315, 1318, 1319, 1324,

1329, 1341, 1342, and 1344 of this title to the

degree necessary to carry out the objectives

of this section. . . . Not later than 18 months

after February 4, 1987, the Administrator

shall, in consultation with Indian tribes,

promulgate final regulations which specify

how Indian tribes shall be treated as States

for purposes of this chapter. The Adminis-

trator shall, in promulgating such regula-

tions, consult affected States sharing

common waiter bodies and provide a mecha-

nism for the resolution of any unreasonable

consequences that may arise as a result of

differing water quality standards that may

be set by States and Indian tribes located on

common bodies of water. Such mechanism

shall provide for explicit consideration of

relevant factors including, but not limited

to, the effects of differing water quality per-

mit requirements on upstream and down-

stream dischargers, economic impacts, and

present and historical uses and quality of

the waters subject to such standards. Such

mechanism should provide for the avoid-

ance of such unreasonable consequences in

a manner consistent with the objective of

this chapter.

40 C.F.R. § 131.11(a)(1) states in relevant part:

(1) States must adopt those water quality

criteria that protect the designated use.

Such criteria must be based on sound scien-

tific rationale and must contain sufficient

parameters or constituents to protect the

: designated use.

40 C.F.R. § 131.7, due to its length, is set forth in

Appendix E.

STATEMENT OF THE CASE

For the first time, in 1987, Congress authorized the

United States Environmental Protection Agency (EPA) to

treat the 435 congressionally recognized Indian tribes as

states for certain purposes under the Clean Water Act

(“CWA”), 33 U.S.C. § 1377. The Isleta Pueblo (“Isleta”)

was the first tribe to apply for and receive “state” status

under this program. On December 24, 1992 EPA approved

the Isleta’s Water Quality Standards. Record in the Tenth

Circuit, Aplt. App. 966-68. The Isleta Standards are found

at Aplt. App. 1240-66.

The City of Albuquerque (“the City”) filed suit in the

U.S. District Court attacking both the EPA approval of the

Isleta’s Standards and the EPA regulations (40 C.F.R.

§ 131.7) implementing the legislative mandate that EPA

resolve unreasonable consequences resulting from tribal

standards. The District Court had jurisdiction under the

Declaratory Judgment Act (28 U.S.C. §§ 2201-2202), Fed-

eral Question jurisdiction (28 U.S.C. § 1331), and the

Administrative Procedures Act (“APA”) (5 U.S.C. §§ 500

et seq.).

The District Court granted Summary Judgment

against the City and the Tenth Circuit Court of Appeals

affirmed.

The City challenged the EPA approval of the Pueblo

Water Quality Standards as not supported by a rational or

Pen im nea aera

scientific basis in the record. In ruling against the City,

the Tenth Circuit stated:

If the proposed standards are more strin-

gent than necessary to comply with the Clean

Water Act’s requirements, the EPA may approve

the standards without reviewing the scientific

support for the standards. Appendix to this

Petition, App. 24.

The City contends that this holding conflicts with the

Administrative Procedures Act prohibition against arbi-

trary and capricious agency action, 5 U.S.C. § 706(2)(A),

as well as EPA’s own regulation requiring state standards

to be scientifically supported. 40 C.FR. § 131.11.

The Tenth Circuit also held that Indian Tribes

through their inherent sovereign power could adopt

water quality standards which are more stringent than

federal standards and then, that EPA could enforce these

standards against parties, such as the City of Albuquer-

que, who were located outside of tribal boundaries. App.

12-18. This holding conflicts with U.S. Supreme Court

decisions which limit the exercise of Indian tribe inherent

sovereign power to within tribal boundaries.

EPA approved the Pueblo’s water quality standard

for “primary contact ceremonial use.” That term is

defined:

Primary contact ceremonial use means the use of

a stream, reach, lake, or impoundment for religious

or traditional purposes by members of the Pueblo of

Isleta; such use involves immersion and inten-

tional or incidental ingestion of water.

[emphasis supplied]

Aplt. App. 1254.

On its face, this standard is adopted to protect the

Isleta Pueblo’s religious activities. The City contends that

EPA approval of this standard which promotes the

Pueblo religion and which the Tenth Circuit holds, is

enforceable against the City as an upstream discharger

(App. 17-18) violates the Establishment Clause of the

First Amendment.

33 U.S.C. § 1377(e) requires EPA to adopt regulations

to resolve “any unreasonable consequences that may

arise as a result of differing” state and Indian tribe stan-

dards. The City contends that EPA’s non-binding media-

tion regulations, 40 C.FR. § 131.7, are not sufficient to

meet that mandate.

33 U.S.C. § 1377(e) requires EPA to provide explicit

consideration of “the effects of differing water quality

permit requirements on” upstream dischargers and of the

“economic impacts” of those requirements. The EPA reg-

ulations, 40 C.F.R. § 131.7, however, fail to give economi-

cally impacted upstream dischargers standing to institute

the dispute resolution process. The City contends that the

EPA regulations do not meet the statutory mandate.

REASONS FOR GRANTING THE WRIT

Standard of Review

Both EPA’s December 24, 1992 approval of the Isleta

Standards and EPA’s December 12, 1991 adoption of the

“Dispute Resolution Mechanism” regulation are agency

actions reviewable under 5 U.S.C. § 706(2)(A)-(D) of the

Administrative Procedures Act (APA). American Mining

Congress, 772 F.2d 617, 625 (10th Cir. 1985), cert. denied,

476 U.S. 1158 (1986). Sierra Club v. EPA, 540 F.2d 1114,

1123 (D.C. Cir. 1976). Environmental Defense Fund v. Costle,

657 F.2d 275, 282-3 (D.C. Cir. 1981).

That law states in relevant part:

. . . The reviewing court shall .. . (2) hold

unlawful and set aside agency action, findings,

and conclusions found to be -

(A) arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

ity, or limitations, or short of Statutory right;

(D) without observance of procedure required

by law...

5 U.S.C. § 706(2)

I. EPA CANNOT APPROVE AND ENFORCE INDIAN

PUEBLO WATER QUALITY STANDARDS BEYOND

TRIBAL BOUNDARIES WHEN THOSE STAN-

DARDS ARE NOT SUPPORTED BY A SCIENTIFIC

OR RATIONAL BASIS.

A. The Pueblo Standards must have a scientific or

rational basis.

The Tenth Circuit’s opinion conflicts with the Admin-

istrative Procedure Act, with the Supreme Court’s Opin-

ions and with EPA’s own regulations, all of which

prohibit arbitrary and capricious agency action.

The Tenth Circuit Court of Appeals states in its op

ion:

If the proposed standards are more stringent

than necessary to comply with the Clean Water

Act requirements, the EPA may approve the stan-

dards without reviewing the scientific support for

the standards.

App. 24. [emphasis supplied]

In applying the arbitrary and capricious standari,

the Supreme Court has emphasized the need for adminé-

trative agencies to examine the relevant data and to arti

ulate a rational connection between the facts found ard

the agency decision:

... the agency must examine the relevant data

and articulate a satisfactory explanation for its

action including a ‘rational connection between

the facts found the choice made.’ Burlington

Truck Lines, Inc. v. United States, 371 U.S. 156, 168

(1962). In reviewing that explanation, we must

‘consider whether the decision was based on a

consideration of the relevant factors and

whether there has been a clear error of judg-

ment.’ Bowman Transportation, Inc. v. Arkansas-

Best Freight System, Inc., supra, at 285; Citizens to

Preserve Overton Park v. Volpe, supra, at 416. Nor-

mally an agency rule would be arbitrary and

capricious if the agency has relied on factors

which Congress has not intended it to consider,

entirely failed to consider an important aspect

of the problem, offered an explanation for its

decision that runs counter to the evidence

before the agency, or is so implausible that it

could not be ascribed to a difference in view or

the product of agency expertise. The reviewing

court should not attempt itself to make up for

such deficiencies; we may not supply a reasoned

basis for the agency’s action that the agency

itself has not given. SEC v. Chenery Corp., 332

U.S. 194, 196 (1947).

Motor Vehicle Mfrs. Assn. v. State Farm Mut., 463 U.S. 29, |

42-44 (1983).

Consistent with the Supreme Court’s decisions, EPA’s

own regulations require that state water quality stan-

dards “be based on sound, scientific rationale.” 40 C.F.R.

§ 131.11(a)(1). Administrative agencies are required to

follow their own regulations, Bar MK Ranches v. Yvetter,

994 F.2d 734, 738 (10th: Cir. 1993). See also Natural

Resources Defense Council v. United States Environmental

Protection Agency, 16 F.3d 1395, 1401 (4th Cir. 1993).

The Tenth Circuit’s hoiding that “EPA may approve

the standards without reviewing the scientific support for

the standards,” App. 24, directly conflicts with the

Supreme Court decisions and EPA’s own regulation.

Even if the Clean Water Act, allows tribes and

pueblos to adopt standards which are more stringent than

the federal standards, such standards, must still be sup-

ported by a scientific or rational basis before EPA

approves them. Otherwise, EPA approval is arbitrary and

capricious.

In applying the arbitrary and capricious standard to

agency actions, the Tenth Circuit itself has stated:

The key question during judicial review is

whether the agency action is reasonable and

supported by the record before the court... .

The controlling test is whether the record facts

- a

supporting agency action are adequately

adduced and rationally applied.

Colorado Healthcare Association v. Colorado Department of

Social Services, 842 F.2d 1158, 1164 (10th Cir. 1988).

If Congress intended EPA to rubberstamp all tribal

standards which were more stringent than federal stan-

dards, the Clean Water Act would have simply stated that

such standards were automatically approved. Stringency

alone, however, is not a substitute for a rational basis.

Even if the tribes are allowed to adopt standards more

stringent than federal standards, common sense and the

overwhelming weight of the law mandates that the EPA

approval must be supported by a scientific or rational

basis. As the Tenth Circuit's opinion acknowledges, EPA’s

own regulations provide:

States can draw upon EPA’s recommended

water quality criteria or use other criteria for

which they have sound scientific support. See 40

C.ER. § 131.11 (1995) [emphasis supplied]

App. 6, note 5.

Nevertheless, the Opinion states:

If the proposed standards are more stringent

than necessary to comply with the Clean Water

Act requirements, the EPA may approve the stan-

dards without reviewing the scientific support for

the standards.

App. 24. [emphasis supplied]

The opinion’s departure from the established princi-

ples of administrative law, and the contradiction with

EPA’s regulations, call for granting the writ.

B. The Pueblo Standards should not be enforced

beyond Pueblo boundaries.

The City has argued that 33 U.S.C. § 1370 (which

allows states to adopt standards more Stringent than

EPA’s) is not incorporated in 33 U.S.C. § 1377(e) (the

section that specifically enumerates the powers that

Indian tribes may exercise under the Clean Water Act).

The Tenth Circuit opinion agrees with that assertion,

App. 16. Nevertheless, the Tenth Circuit found that

Indian tribes may adopt standards more stringent than

federal standards under their inherent sovereign power,

App. 16-17. That proposition might be true on its face,

but the Tenth Circuit goes on to conclude that EPA may

enforce the tribal standards off reservation, App. 17-18.

This conflicts with the holdings of the United States

Supreme Court that the exercise of inherent sovereign

power is limited to within tribal boundaries. Montana v,

U.S., 450 U.S. 544, 562-66 (1980), U.S. v. Wheeler, 435 US.

313, 323 (1978), Mescalero Apache Tribe v. Jones, 411 US.

145, 148-49 (1973), Duro v. Reina, 495 US. 676, 686 (1990).

EPA should not be allowed to use other provisions of

the Clean Water Act to circumvent the exclusion of 33

U.S.C. § 1370 from the Indian tribe program. Since the

Clean Water Act specifically excludes 33 U.S.C. § 1370,

Tribal Standards which are more stringent than federal

standards should not be applied outside of the tribal

boundaries. The writ should be granted.

II. EPA APPROVAL OF THE ISLETA PUEBLO CERE-

MONIAL AND RELIGIOUS USE STANDARD

VIOLATES THE ESTABLISHMENT CLAUSE.

The First Amendment of the United States Constitu-

tion provides, in pertinent part, that “Congress shall

make no law respecting an establishment of religion. ...”

This clause guards against community division by

religious belief through prohibiting governmental action

which directly supports or inhibits particular religious

beliefs. Engel v. Vitale, 370 U.S. 421 (1962). Forbidden

action includes sponsorship, financial support, and active

involvement of the sovereign in religious activity. Walz v.

Tax Commission, 397 U.S. 664, 668 (1970).

The United States Supreme Court has held that gov-

ernment action will violate the Establishment Clause if it

fails to satisfy any one part of a three-pronged test. Stone

v. Graham, 449 U.S. 39, 41 (1980). Under the first prong,

the law in question must reflect a clearly secular purpose.

Epperson v. Arkansas, 393 U.S. 97 (1968). Second, the law

must have a primary effect that neither advances nor

inhibits religion. Board of Education v. Allen, 392 U.S. 236,

243 (1968). And third, the law must avoid excessive gov-

ernmental entanglement with religion. Lemon v. Kurtzman,

403 U.S. 602 (1971). EPA approval of the Isleta Pueblo’s

“Primary Contact Ceremonial Use Standard” violates all

three prongs of the test.

EPA approved the Pueblo’s “Primary Contact Cere-

monial Use” Standard for that portion of the Rio Grande

within the boundaries of the Pueblo. The term “Primary

Contact Ceremonial Use” is defined by the Pueblo Stan-

dards as follows:

Primary Contact Ceremonial Use means the use

of a stream, reach, lake, or impoundment for

religious or traditional purposes by members of the

PUEBLO OF ISLETA; such use involves immer-

sion and intentional or incidental ingestion of

water.

Aplt. App. 1254. [emphasis supplied]

The Pueblo standard, on its face, plainly indicates

that it is adopted in furtherance of religious activities.

The Pueblo’s Amicus brief in the Tenth Circuit confirms

the secret religious ceremonial use of the water by the

Pueblo:

The flowing waters of the Rio Grande have

been since ancient times, and are now, central to

the life of the Isleta people. That communion

with these waters would be the major part of the

religion and ceremonies of the Isleta people

hardly requires contemplation. The Isleta people

are reticent about the water and how it is used

because privacy is essential for the efficacy of

the ceremony, but they have made known that

ceremonies can involve the incidental or inten-

tional ingestion of water.

Pueblo Tenth Circuit Amicus brief at 3. See also Pueblo

brief in U.S. District Court, Aplt. App. 400-403.

The Pueblo does not use the river water for the

community drinking water system (Aplt. App. 925), and

there is no evidence in the record of non-religious inten-

tional ingestion of the untreated Rio Grande water. The

Pueblo confirms in its Amicus brief in the U.S. District

Court that the reason for the Primary Contact Ceremonial

Use designation, and its protection of water for inten-

tional ingestion is to promote religious practices and

oo /

ceremonies within the Pueblo. Aplt. App. 400-403. There

is simply no other Purpose to this standard other than the

Protection of religious uses of water.

The reason for the designated use is explicitly sec-

tarian. The Ceremonial Use therefore fails the first prong

of the test.

To pass the second prong, the challenged action must

have a primary effect which neither inhibits nor advances 7

religion. The Pueblo confirms that its Ceremonial Use

Standard was adopted explicitly to advance tribal reli-

gion. Aplt. App. 400-03. EPA approval of the standard,

therefore, also fails the second prong.

The last test is whether the challenged action results

in excessive governmental entanglement with religion.

The CWA (33 U.S.C. § 1313(c)) mandates a review every

three years to determine whether State and Indian tribe

water quality standards adequately protect designated

uses. This will force the Pueblo and EPA to inquire, on an

ongoing basis, whether the standards adequately protect

religious uses of the river water. To know whether the

Standards are adequately protective, EPA must inquire

how the water is being used. Such inquiry would be

Particularly intrusive for the Pueblo religion, the beliefs

and practices of which are not freely disclosed. Aplt.

App. 402, 1018-19, 1232. Any increased protection for

religious use in the standards would both advance reli-

gion and trap EPA in Precisely the type of excessive

entanglement with religion which is proscribed by the

Establishment Clause. Additional entanglement results

from the Tenth Circuit's holding that “EPA has the

authority to require upstream NPDES dischargers such as

Ce ae een Te eee Oe a ed ee

Ah RIE Sake de 5 ty

ORGAO NPS esis Net BRE ab EO LS BE:

Albuquerque to comply with downstream tribal stan-

dards.” App. 18. EPA approval of the Ceremonial Use

standard fails the third prong of the test.

The government may not coerce anyone into support-

ing religion. Lee v. Weisman, 505 U.S. 577 (1992). The EPA,

however, is placing the City of Albuquerque and its citi-

zens in a position where they may well be required to

spend hundreds of millions of dollars for waste water

treatment solely to support Pueblo religion.! The Ceremo-

nial Use standard fails not just one of the three prongs; it

fails all of them.

Additionally, the Tenth Circuit Opinion is self contra-

dictory on this point. It states:

The EPA’s approval of the primary contact cere-

monial use designation serves a clear seculai

purpose: promotion of the goals of the Clean

Water Act.

App. 29.

The Opinion goes on to say that EPA is not advancing

or promoting the Isleta Pueblo’s religion, App. 30.

1} The Tenth Circuit Opinion states: “Under §§ 1311, 1341,

1342 and 1377, the EPA has the authority to require upstream

NPDES dischargers, such as Albuquerque, to comply with

downstream tribal standards.” App. 18. Uncontradicted

evidence in the record establishes a capital cost to Albuquerque

taxpayers of $248 million and annual operating cost of $26

million for the reverse osmosis treatment necessary to attempt

to meet many of the Pueblo Standards, including the religious

use intentional human ingestion standard. Aplt. App. 665, 686,

688, 691, 740, 741.

Then to the contrary the opinion states:

If anything, the agency's approval furthers the free

exercise of religion. [emphasis supplied]

App. 30, note 20. See also Lyng v. Northwest Indian Ceme-

tery Protective Ass'n, 485 U.S. 439 (1988) and Badoni v.

Higgenson, 638 F.2d 172 (10th Cir. 1980), both discussing

the interaction between tribal religions practices and the

First Amendment.

The Opinion’s statement that approval of the “cere-

monial use designation serves a clear secular purpose”

contradicts the statement that “the agency’s approval

furthers the free exercise of religion.” The Tenth Circuit's

ruling on the Establishment Clause issue conflicts with

the Supreme Court Establishment Clause opinions cited

above and with itself. The writ should be granted.

Ill. THE EPA DISPUTE RESOLUTION REGULATION

DOES NOT MEET THE CWA MANDATE.

A. The EPA dispute resolution regulation fails to

meet the statutory mandate that unreasonable

consequences be resolved.

The CWA, 33 U.S.C. § 1377(e), states in pertinent

part:

The administrator shall, in promulgating such

regulations . . . provide a mechanism for the resolu-

tion of any unreasonable consequences that may

arise as a result of differing water quality stan-

dards that may be set by states and Indian tribes

located on common bodies of water. . . . Such

mechanism should provide for the avoidance of such

al al hi

unreasonable consequences . . . [emphasis sup-

plied]

Despite the clear mandate for an effective dispute resolu-

tion mechanism, the Tenth Circuit Opinion sanctions

EPA’s voluntary mediation approach:

The EPA’s decision to use mediation and non-

binding arbitration is consistent with the Clean

Water Act requirement that the EPA encourage

cooperative activities by the states.

App. 27.

The Tenth Circuit Opinion went on to find that:

The EPA’s establishment of a dispute resolution

mechanism that relies on tribal and state cooper-

ation to address unreasonable consequences was

a reasonable interpretation of § 1377(e) that is

entitled to deference.

App. 28.

The toothless voluntary non-binding process estab-

lished by EPA’s regulations does not meet the require-

ment that the EPA shall “provide a mechanism for the

resolution of any unreasonable consequences.” 33 U.S.C.

§ 1377(e) [emphasis supplied] If either the state or the

tribe fails to initiate the dispute resolution mechanism, as

occurred in this case, or if either fails to agree on a

mediated settlement, as often happens in non-binding

mediation, the unreasonable consequence will remain.

This is contrary to the statutory mandate of the Clean

Water Act, 33 U.S.C. § 1377(e) and the Administrative

Procedures Act, 5 U.S.C. § 706(2)(A) and (C), and the

Court should grant the writ.

- saben ,

B. EPA’S dispute resolution mechanism fails to

protect the interests of upstream dischargers as

mandated by the Clean Water Act.

In mandating the mechanism for resolution of unrea-

sonable consequences, 33 U.S.C. § 1377(e) states in perti-

nent part:

Such mechanism shall Provide for explicit consid-

eration of relevant factors, including, but not limited

to, the effects of differing water quality permit

requirements on upstream and downstream dis-

chargers, economic impacts, and present and his-

torical uses and quality of the water subject to

standards. Such mechanism should provide for

the avoidance of such unreasonable conse-

quences. . . . [emphasis supplied]

The Tenth Circuit recognizes that the City of Albu-

querque is an upstream discharger whose National Pollu-

tion Discharge Elimination System (NPDES) permit is

directly subject to the Isleta Standards. App. 6. In Sierra

Club v. EPA, 995 F2d 1478 (9th Cir. 1993), the Ninth

Circuit held that a city has a “protectable” interest in its

NPDES discharge permit, and has the right to intervene

in proceedings which might affect the terms of that per-

mit. Nevertheless, the Tenth Circuit Opinion states:

It is reasonable, therefore, to allow only those

two sovereigns [the state and the tribe] to initi-

ate the dispute resolution Process to resolve

their differences rather than to include affected

permitiees such as Albuquerque.

App. 28. [bracketed material supplied] See also 40 C.E.R.

§ 131.7(C) which Provides only States and Indian Tribes

Standing to instigate the dispute resolution process.

DR i ii iN i

Neither a permittee with a protectable interest in its

permit, nor EPA, the agency responsible for ensuring

compliance with the CWA, may invoke the dispute reso-

lution process. Therefore, the factors which the CWA

explicitly mandates for consideration may well never be

considered and the parties who suffer the unreasonable

consequences may never be heard. An upstream dis-

charger or permittee may participate only at the discre-

tion of the EPA, 40 C.F.R. § 131.7(g)(2), and then only if a

tribe or state has initiated the process.

Neither the State of New Mexico nor the Isleta

Pueblo initiated the dispute resolution process in this

case. The unreasonable Isleta Standards are still in place.

For example, the Isleta Arsenic Standard for the Rio

Grande is 17 parts per trillion, nearly one thousand times

more stringent than the EPA approved New Mexico State

Standard of 20 parts per billion. Aplt. App. 659-60. The

water in the Rio Grande upstream from the City’s dis-

charge contains 24 parts per billion, Aplt. App. 662, and

the well water used for Albuquerque’s drinking water

supply averages 17 parts per billion of arsenic. Aplt. App.

679.

EPA had included nondetectible limit arsenic require-

ments in the City’s permit (Draft Three) as a result of the

Pueblo’s arsenic standard. Aplt. App. 658-60. The Isleta

Standard is still in place and the City has no assurance

that EPA will not impose the zero detectible Arsenic

standard when the present permit expires in 1998. Com-

pliance with the nondetectible discharge limit would

require reverse osmosis treatment (Aplt. App. 659-61) at a

cost to the City of approximately $248 million in capital

improvements (Aplt. App. 686) and $26 million per year

in operating costs. Aplt. App. 688, 741. Even if the City

achieves zero detectible discharge, the Isleta Arsenic

standard will not be met in the Rio Grande water within

the Pueblo because of natural and other factors affecting

the river. Aplt. App. 662. The 17 parts per trillion Arsenic

standard remains unattainable, totally irrational and

poised to place excessive economic burdens on the City.

The unreasonable consequences of the Isleta Standards

have not been resolved.

Parties subject to unreasonable consequences must

have standing to instigate the unreasonable consequences

resolution process required by the CWA. The writ should

be granted.

CONCLUSION

For the foregoing reasons, a writ or certiorari should

issue to review the judgment of the United States Court

of Appeals for the Tenth Circuit.

Respectfully submitted,

Bruce S. GARBER*

GARBER AND HALLMARK, P.C.

Post Office Box 850

Santa Fe, NM 87504-0850

Telephone: (505) 983-3233

Grecory P. SMITH

Assistant City Attorney

City of Albuquerque

Post Office Box 2248

Albuquerque, NM 87103-2248

Telephone: (505) 768-4500

Rosert M. WuiTE

City Attorney

City of Albuquerque

Post Office Box 2248

Albuquerque, NM 87103-2248

Telephone: (505) 768-4500

Counsel for Petitioner

*Counsel of Record

App. 1

APPENDIX A

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CITY OF ALBUQUERQUE,

Plaintiff-Appellant,

CAROL BROWNER, or her

successor as Administrator, United

States Environmental Protection

Agency,

Defendant-Appellee,

THE WESTERN COALITION OF

ARID STATES; METROPOLITAN

SEWERAGE AGENCIES; NEW

MEXICO MUNICIPAL LEAGUE,

INC.; NEW MEXICO

ENVIRONMENT DEPARTMENT;

STATE OF NEW MEXICO; and

PUEBLO OF ISLETA,

Amici Curiae.

No. 93-2315

a a ee a ee ee, a ee ee, oe ee, ee

App. 2

APPEAL FROM THE UNITED

STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CIV-93-82-M)

(Filed Oct. 7, 1996)

Bruce S. Garber of Garber and Hallmark, P.C., Santa Fe,

New Mexico (Cullen Hallmark of Garber and Hallmark,

P.C., Santa Fe, New Mexico; Robert M. White, City Attor-

ney; and Gregory P. Smith, Assistant City Attorney, City

of Albuquerque, Albuquerque, New Mexico, with him on

the briefs), .U¢ Plaintiff-Appellant.

Elizabeth A. Peterson, Attorney, Department of Justice,

Washington, DC (Lois J. Schiffer, Assistant Attorney Gen-

eral, Department of Justice, Washington, DC; John J.

Kelly, United States Attorney, and John W. Zavitz, Assis-

tant United States Attorney, District of New Mexico,

Albuquerque, New Mexico; Elizabeth M. Ahern and

David C. Shilton, Attorneys, Department of Justice,

Washington, DC; Randolph L. Hill, US. Environmental

Protection Agency, Office of the General Counsel, Wash-

ington, DC, and Pat Rankin, U.S. Environmental Protec-

tion Agency, Office of Regional Counsel, Dallas, Texas, of

Counsel), with her, on the brief for Defendant-Appellee.

Jerome C. Muys of Will & Muys, P.C., Washington, DC,

on the brief, for amicus curiae Western Coalition of Arid

States.)

(Lee C. White, Washington, D, on the brief, for amicus

curiae Metropolitan Sewerage Agencies.)

App. 3

(Steven Barshov of Sive, Paget & Riesel, P.C., New sow

New York; Richard L.C. Virtue and Stephany S. Wilson o

Taichert, Wiggins, Virtue, Wilson & Najjar, Santa Fe, New

Mexico, on the brief, for amicus curiae New Mexico

Municipal League.)

(Tom Udall, Attorney General of New Mexico; Alletta

Belin, Assistant Attorney General; and Tracy M. Hughes,

Special Assistant Attorney General, New Mexico —

ronment Department, Santa Fe, New Mexico, on the brief,

for amicus curiae New Mexico Environment Department

and State of New Mexico.)

(L. Lamar Parrish of Ussery & Parrish, P.A., Albuquerque,

New Mexico, on the briceZ, for amicus curiae Pueblo of

Isleta.)

Before HENRY and McKAY, Circuit Judges, and

JENKINS,” Senior District Judge.

McKAY, Circuit Judge.

The City of Albuquerque [Albuquerque] filed a com-

plaint challenging the U.S. Environmental Anus

Agency’s [EPA] approval of the Pueblo of Isleta’s ee

Pueblo] water. quality standards on numerous grounds.

After denying Albuquerque a temporary restraining

order and a preliminary injunction, the district court

denied its motion for summary judgment while granting

* The Honorable Bruce S. Jenkins, Senior United States

District Judge for the District of Utah, sitting by designation.

App. 4

the Defendant EPA’s motion for summary judgment. City

of Albuquerque v. Browner, 865 F. Supp. 733 (D. N.M. 1993).

Albuquerque now appeals the district court’s judgment.

I. Background

In- 1987, Congress amended the Clean Water Act to

authorize the Defendant EPA to treat Indian tribes as

states under certain circumstances for purposes of the

Clean Water Act.! Through the amendment Congress

merged two of the four critical elements necessary for

tribal sovereignty - water rights and government juris-

diction? - by granting tribes jurisdiction to regulate their

water resources in the same manner as states. Congress's

authorization for the EPA to treat Indian tribes as states

preserves the right of tribes to govern their water

resources within the comprehensive statutory framework

of the C1ean Water Act. This case involves the first

1 Clean Water Act, Pub. L. No. 92-500, 86 Stat. 896 (Oct. 18,

1972), as amended by Act of Feb. 4, 1987, Pub. L. No. 100-4, tit.

V, § 506, 101 Stat. 76 (codified at 33 U.S.C. §§ 1251-1387).

2 The other two critical elements to tribal sovereignty are

land and mineral rights.

3 See Amicus Curiae Br. of the New Mexico Municipal

League in Support of Appellant City of Albuquerque, Ex. B at

CRS-8, CRS-11 (Memo from Library of Congress, Congressional

Research Service, American Law Division, to Senate Select

Committee on Indian Affairs, regarding the Extent of Tribal

Jurisdiction under Section 518 of the Clean Water Act (Feb. 21,

1991)).

App. 5

challenge to water quality standards adopted by an

Indian tribe under the Clean Water Act amendment.4

The Rio Grande River flows south through New Mex-

ico before turning southeast to form the border between

Texas and Mexico. Plaintiff City of Albuquerque operates

a waste treatment facility which dumps into the river

approximately five miles north of the Isleta Pueblo Indian

Reservation. The EPA recognized Isleta Pueblo as a state

for purposes of the Clean Water Act on October 12, 1992.

* The Clean Water Act provides two measures of water

quality. One measure is an “effluent limitations guideline.”

Effluent limitations guidelines are uniform, technology-based

standards promulgated by the EPA, which restrict the

quantities, rates and concentrations of specified substances

discharged from point sources. See 33 U.S.C. §§ 1311, 1314. The

other measure of water quality is a “water quality standard.”

Unlike the technology-based effluent limitations guidelines,

water quality standards are not based on pollution control

technologies, but express the desired condition or use of a

particular waterway. Water quality standards supplement

technology-based effluent limitations guidelines “so that

numerous point sources, despite individual compliance with

effluent limitations, may be further regulated to prevent water

quality from falling below acceptable levels.” EPA v. California

ex rel. State Water Resources Control Bd., 426 U.S. 200, 205 n.12

(1976). In this case, the water quality standards of the Isleta

Pueblo are at issue.

There are three elements of water quality standards under

the Clean Water Act: (1) one or more designated “uses” of each

waterway (e.g., public water supply, recreation, or agriculture)

consistent with the goals of the Act as articulated in 33 U.S.C.

§ 1251; (2) “criteria” expressed in numerical concentration

levels or narrative statements specifying the ataount of various

pollutants that may be present in the water and still protect the

designate uses; and (3) an anti-degradation provision. 33 U.S.C.

§ 1313(c}(2)(A); 40 C.F.R. § 131 (1995).

App. 6

The Isleta Pueblo adopted water quality standards for Rio

Grande water flowing through the tribal reservation,

which were approved by the EPA on December 24, 1992.°

The Isleta Pueblo’s water quality standards are more

stringent than the State of New Mexico’s standards.

The Albuquerque waste treatment facility discharges

into the Rio Grande under a National Pollution Discharge

Elimination System [NPDES] permit issued by the EPA.

The EPA sets permit discharge limits for waste treatment

facilities so they meet state water quality standards.

Albuquerque filed this action as the EPA was in the

process of revising Albuquerque’s NPDES permit to meet

the Isleta Pueblo’s water quality standards.

In its complaint, Albuquerque challenged the EPA's

approval of Isleta Pueblo’s water quality standards on

5 The EPA provides states with substantial guidance in

drafting water quality standards. States must adopt criteria that

protect the designated uses. 40 C.F.R. § 131.11 (1995). The Clean

Water Act requires the EPA to develop criteria for water quality

that reflect the latest scientific knowledge, and to provide those

criteria to the states as guidance. 33 U.S.C. § 1314(a). States can

draw upon the EPA’s recommended water quality criteria or use

other criteria for which they have sound scientific support. See

40 C.F.R. § 131.11 (1995).

Prior to adopting or revising any water quality standard,

the state must provide notice and an opportunity for a public

hearing. 40 C.F.R. § 131.10(e) (1995). The criteria may be based

on EPA guidance, EPA guidance modified to reflect conditions

at the site, or on other scientifically defensible methods. Id.

After adoption, the states must submit the water quality

standards to the EPA for review and approval. 33 U.S.C.

§ 1313(c)(2). The EPA reviews the state’s water quality

standards to ensure that they are consistent with the Act’s

requirements. Id. at § 1313(c)(3).

App. 7

numerous grounds.® The district court denied Albuquer-

que’s request for a temporary restraining order and a

preliminary injunction. Then, the district court denied

Plaintiff’s motion for summary judgment while granting

the Defendant EPA’s motion for summary judgment.

Albuquerque now appeals the district court’s judg-

ment. On April 15, 1994, Albuquerque, the EPA, the State

of New Mexico, and Isleta Pueblo agreed to a new four-

year NPDES permit for Albuquerque pursuant to a stipu-

lation and agreement. The stipulation and agreement

does not mention the claims in this suit, and the EPA’s

regulations and the Isleta Pueblo’s revised water quality

standards are in effect. During the briefing stage of this

appeal, Albuquerque filed a motion requesting an order

vacating the district court’s judgment due to mootness

and remand with instructions to dismiss its complaint

without prejudice.

Albuquerque has raised seven issues on appeal: (1)

whether the district court’s opinion and order should be

vacated because the case is mooted by an agreement

negotiated by the parties; (2) whether the EPA reasonably

interpreted § 1377 of the Clean Water Act as providing

the Isleta Pueblo’s authority to adopt water quality stan-

dards that are more stringent than required by the stat-

ute, and whether the Isleta Pueblo standards can be

applied by the EPA to upstream permit users; (3) whether

the EPA complied with the Administrative Procedure

Act’s notice and comment requirements in approving the

The Isleta Pueblo is amicus curiae in support of the EPA in the

suit.

App. 8

Isleta Pueblo’s standards under the Clean Water Act; (4)

whether the EPA’s approval of the Isleta Pueblo’s stan-

dards was supported by a rational basis; (5) whether the

EPA’s adoption of regulations providing for mediation or

arbitration to resolve disputes over unreasonable conse-

quences of a tribe’s water quality standards is a reason-

able interpretation of § 1377(e) of the Clean Water Act; (6)

whether the EPA’s approval of the Isleta Pueblo’s ceremo-

nial use designation offends the Establishment Clause of

the First Amendment; and (7) whether the Isleta Pueblo’s

standards approved by the EPA are so vague as to

deprive Albuquerque of due process.

Summary judgment is proper if the record shows

“that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c). Albuquerque’s challenge of

the EPA’s. decision is not premised on disputed facts;

rather, it asserts that the EPA was not entitled to judg-

ment as a matter of law. We review the district court’s

summary judgment de novo, using the standards that

were applicable in the district court. Pueblo of Sandia v.

United States, 50 F.3d 856, 859 (10th Cir. 1995); Lewis v.

Babbitt, 998 F.2d 880, 881 (10th Cir. 1993).

II. Mootness

As a preliminary issue, Albuquerque has filed a

motion to vacate the district court’s opinion and order

and to remand this action to the district court with

instructions to dismiss their complaint without prejudice.

As a basis for this motion, Albuquerque asserts that the

ied

eee ee weed va

App. 9

case is mooted by a negotiated agreement whereby Albu-

querque, the EPA, the State of New Mexico, and the Isleta

Pueblo have each agreed to a new four-year NPDES

permit for the Albuquerque waste facility. Thus, Albu-

querque asserts that under United States v. Munsingwear,

Inc., 340 U.S. 36 (1950), we should vacate the judgment

and dismiss the complaint without prejudice.

We deny Albuquerque’s motion because the case is

not moot. “The burden of demonstrating mootness ‘is a

heavy one.’” Los Angeles County v. Davis, 440 U.S. 625,

631 (1979) (quoting United States v. W.T. Grant Co., 345

U.S. 629, 632-33 (1953)). Under the mootness doctrine, “ ‘a

case is moot when the issues presented are no longer

“live” or the parties lack a legally cognizable interest in

the outcome.’ ” Davis, 440 U.S. at 631 (quoting Powell v.

McCormack, 395 U.S. 486, 496 (1969)). The settlement

agreement, which fails to even mention this case, does

not resolve this suit. Under the settlement, the EPA has

not withdrawn its approval of the Isleta Pueblo standards

or changed its regulations. A “live” controversy still

exists here because the parties still disagree about

whether the EPA’s approval of the Isleta Pueblo stan-

dards is lawful under the Clean Water Act and the U.S.

Constitution and whether the EPA’s regulations are con-

sistent with the Act.

Parties lack a legally cognizable interest in the out-

come of a case if “(1) it can be said with assurance that

‘there is no reasonable expectation . . . ’ that the alleged

violation will recur, . . . and (2) interim relief or events

have completely and irrevocably eradicated the effects of

the alleged violation.” Davis, 440 U.S. at 631 (citations

omitted). The parties in this case have retained a legally

App. 10

cognizable interest because the Isleta Pueblo water qual-

ity standards and the EPA’s regulations challenged in

Albuquerque’s suit are still in force. The stipulation and

agreement settled issues concerning only the EPA’s issu-

ance of Albuquerque’s NPDES permit. In this case, Albu-

querque is challenging the EPA’s regulations and the

Agency’s approval of water quality standards under the

Clean Water Act, not the issuance of an NPDES permit.”

Under the circumstances, there is no reasonable expecta-

tion that the alleged violation will not recur, and the

settlement agreement has not completely and irrevocably

eradicated the effects of the alleged violation. See FDIC v.

Jennings, 816 F.2d 1488, 1491 (10th Cir. 1987) (settlement

that does not resolve all issues does not moot action).

Thus, this action is not mooted because the stipulation

and agreement is not a final settlement of all claims

brought in the City’s suit.

Even if this action were moot, we would not grant

vacatur because Plaintiff’s motion appears to be merely

an attempt to expunge the district court’s adverse deci-

sion, giving the City the option to relitigate this action at

some iater date. The Supreme Court recently explained

that mootness by reason of settlement does not justify

vacatur of a federal civil judgment under review absent

7 The approval of water quality standards and the issuance

of an NPDES permit are two different administrative actions.

The issuance of an NPDES permit under the Clean Water Act is

subject to direct review by the court of appeals. 33 U.S.C.

§ 1369(b)(1)(F). The approval of water quality standards is

initially reviewed by the district courts under the

Administrative Procedure Act. See, e.g., Bethlehem Steel Corp. v.

EPA, 538 F.2d 513, 518 (2d Cir. 1976).

App. 11

exceptional, equitable circumstances. U.S. Bancorp Mort-

gage Co. v. Bonner Mall Partnership, 115 S. Ct. 386, 392, 393

(1994). In some cases where a case becomes moot on

appeal through happenstance, it is proper for the appel-

late court to vacate the judgment of the district court.

Munsingwear, 340 U.S. at 39. Happenstance does not

include cases resolved by actions attributable to the par-

ties, such as a negotiated settlement. U.S. Bancorp Mort-

gage, 115 S. Ct. at 391-92; Oklahoma Radio Assocs. v. FDIC, 3

F.3d 1436, 1439 (10th Cir. 1993). The mootness alleged by

Albuquerque is not happenstance; rather, it results from

the Plaintiff’s voluntary settlement of issues related to the

EPA’s issuance of the NPDES permit.

Also, we will not apply the Munsingwear rule where

“the losing party, fearful of having its loss confirmed by

the appellate court, abandons the appeal and then moves

to have the trial court’s judgment vacated as moot, thus

‘retiring to lick its wounds, fully intending to come out

fighting again.’ ” Harris v. Board of Governors of the Federal

Reserve Sys., 938 F.2d 720, 724 (7th Cir. 1991) (quoting

Commodity Futures Trading Comm'n v. Board of Trade, 701

F.2d 653, 656 (7th Cir. 1983)). Albuquerque was not

required to pursue this appeal. If Plaintiff desired to end

this case in good faith, it could have filed at any time a

motion for voluntary dismissal. Plaintiff’s motivations in

filing the motion are highly suspect; dismissing this suit

as moot and vacating the judgment could result in unfair-

ness to the Defendant by exposing the Agency to the

possibility of renewed actions by the Plaintiff.

We deny Plaintiff’s motion to dismiss this suit and to

vacate the district court’s judgment because we do not

App. 12

find the case moot; and even if the case were moot,

vacatur could result in an unfair result for the Defendant.

III. Tribal Sovereignty Under the Clean Water Act

Albuquerque acknowledges that the 1987 amend-

ment to the Clean Water Act authorizes the EPA to treat

tribes as states. Act of Feb. 4, 1987, Pub. L. No. 100-4, tit.

V, § 506, 101 Stat. 76 (codified as amended at 33 U.S.C.

§ 1377). Albuquerque contends, however, that 33 U.S.C.

§ 1377 does not allow tribes to establish water quality

standards more stringent than federal standards and does

not permit tribal standards to be enforced beyond tribal

reservation boundaries.

In Chevron, USA, Inc. v. Natural Resources Defense

Council, 467 U.S. 837, 842-43 (1984), the Supreme Court

established a two-step approach to judicial review of

agency interpretations of acts of Congress. First, the

reviewing court must determine whether there is a clear

and unambiguous congressional intent concerning the

precise question at issue. If congressional intent is clear

and unambiguous, then that intent is the law and must be

given effect. A reviewing court proceeds to the second

step “if the statute is silent or ambiguous with respect to

the specific issue.” Id. at 843. Then, “the question for the

court is whether the agency’s answer is based on a per-

missible construction of the statute.” Id. The EPA, how-

ever, is entitled to considerable deference in its

interpretation of the Clean Water Act because it is

charged with administering the Act. See Chevron, 467 U.S.

at 844; see also Arkansas v. Oklahoma, 503 U.S. 91, 112

(1992) (criticizing this Court for failing to afford the EPA’s

App. 13

interpretation of the Clean Water Act “an appropriate

level of deference”).

In regard to the first question at issue, we reach the

second step of Chevron because congressional intent is

unclear and ambiguous. Under Albuquerque’s interpreta-

tion of § 1377, tribes could devise water quality standards

which are neither more nor less stringent than federal

standards. Albuquerque’s statutory construction is based

on a negative implication inferred from Congress’s failure

to incorporate all provisions of the Clean Water Act in

§ 1377(e). We find that Congress’s intent is unclear and

ambiguous in regard to § 1377(e) but that the EPA’s

construction of the 1987 amendment to the Clean Water

Act is reasonable and permissible.

Congress’s objective in the Clean Water Act is to

“restore and maintain the chemical, physical, and biolog-

ical integrity of the Nation’s waters” through the elimina-

tion of pollutant discharge into those waters. 33 U.S.C.

§ 1251(a). Through the Act, Congress designed a compre-

hensive regulatory scheme that recognized and preserved

a primary role for the states in eliminating pollution from

our waterways. 33 U.S.C. § 1251(b). The power of states

under the Act is underlined by their ability to force the

development of technology by setting stringent water

quality standards that the EPA can enforce against

upstream polluters. See 33 U.S.C. §§ 1311(k), 1341, 1342,

1370; Arkansas, 503 U.S. at 106 (holding that the EPA’s

requirement that NPDES dischargers must comply with

downstream States’ water quality standards was a rea-

sonable exercise of the agency’s statutory discretion pur-

suant to §§ 1341, 1342). In the Clean Water Act, Congress

provided the EPA “substantial statutory discretion.”

-_ , naan

App. 14

Arkansas, 503 U.S. at 107. Pursuant to the 1987 amend-

ment of the Clean Water Act, the EPA can treat Indian

tribes as states under the Act, provided that the tribes

meet certain criteria listed in 33 U.S.C. § 1377(e) and 40

C.F.R. § 131.8(a).§ The 1987 amendment further provides:

(a) Policy

Nothing in this section shall be construed to

affect the application of section 1251(g) of this

title, and all of the provisions of this section

shall be carried out in accordance with the pro-

visions of such section 1251(g) of this title.

8 To qualify as a state under the Act, an Indian tribe must

submit an application to the EPA which includes: a statement

that the tribe is recognized by the Secretary of the Interior; a

descriptive statement demonstrating that the tribal governing

body is currently carrying out substantial government functions

over a defined area; a description of the tribe’s authority to

regulate water quality over certain waters; a description of the

tribe’s capability to administer an effective water quality

standards program; and any additional documentation which

the Administrator deems necessary to support a tribal

application. 40 C.F.R. § 131.8 (1995).

Upon receipt of the application, the Regional Administrator

will notify appropriate government entities of the tribe’s

application and the basis of the tribe’s authority to regulate

water quality. The Administrator provides a thirty-day period

to receive comments on the tribe’s assertion of authority. If

comments challenge the tribe’s authority, the Regional

Administrator, after consulting with the Secretary of the

Interior, shall determine whether the tribe meets the

requirements of 40 C.F.R. § 131.8(a)(3) (1995). Once recognized

as a state for purposes of the Act, a tribe may submit proposed

water quality standards to EPA.

App. 15

Indian tribes shall be treated as States for pur-

poses of such section 1251(g) of this title.

(e) Treatment as States

The Administrator is authorized to treat an

Indian tribe as a State for purposes of subchap-

ter II of this chapter and sections 1254, 1256,

1313, 1315, 1318, 1319, 1324, 1329, 1341, 1342,

and 1344 of this title to the degree necessary to

carry out the objectives of this section,. .. .

33 U.S.C. § 1377(a), (e).9

In its letter approving the Isleta Pueblo’s standards,

the EPA cites 33 U.S.C. § 1370 as the basis for Isleta

Pueblo’s authority to set water quality standards that are

more stringent than those recommended by the EPA

under the Clean Water Act.?° Albuquerque argues that

tribes cannot adopt discharge limits more stringent than

those of the EPA because § 1377 does not make reference

to § 1370. Section 1370 prohibits states from imposing

standards which are less stringent than those imposed by

the federal government, while acknowledging states’

inherent right to impose standards or limits that are more

9 Section 1251(g) generally preserves the authority of states

to regulate water within their jurisdiction. Together, §§ 1377 and

1251(g) preserve the authority of Indian tribes — acting as states

— to regulate water within their jurisdiction.

10 Appellant’s App. at 966 (Letter from the EPA to the

Pueblo of Isleta (Dec. 24, 1992)).

App. 16

stringent than those imposed by the federal govern-

ment.'? 33 U.S.C. § 1370. Congress’s intent in excluding

§ 1370 from § 1377(e) is unclear and ambiguous. We

decline to read § 1377 as incorporating § 1370 because it

was not explicitly included in § 1377(e), as other sections

are.

The EPA, however, also construes § 1370 as a savings

clause that merely recognizes powers already held by the

states. 56 Fed.Reg. 64,886 (1991). Thus, Congress’s failure

to incorporate § 1370 into § 1377 does not prevent Indian

tribes from exercising their inherent sovereign power to

impose standards or limits that are more stringent than

11 Section 1370 provides:

Except as expressly provided in this chapter,

nothing in this chapter shall (1) preclude or deny the

right of any State or political subdivision thereof or

interstate agency to adopt or enforce (A) any standard

or limitation respecting discharges of pollutants, or

(B) any requirement respecting control or abatement

of pollution; except that if an effluent limitation, or

other limitation, effluent standard, prohibition,

pretreatment standard, or standard of performance is

in effect under this chapter, such State or political

subdivision or interstate agency may not adopt or

enforce any effluent limitation, or other limitation,

effluent standard, prohibition, pretreatment

standard, or standard of performance which is less

stringent than the effluent limitation, or other

limitation, effluent standard, prohibition,

pretreatment standard, or standard of performance

under this chapter; or (2) be construed as impairing or

in any manner affecting any right or jurisdiction of

the States with respect to the waters (including

boundary waters) of such States.

33 U.S.C. § 1370.

App. 17

those imposed by the federal government. Indian tribes

have residual sovereign powers that already guarantee

the powers enumerated in § 1370, absent an express

statutory elimination of those powers.!2 In Arkansas, the

Court explained that § 1370 “only concerns state authority

and does not constrain the EPA’s authority,” 503 U.S. at

107 (emphasis in original); likewise, we do not view

§ 1370 as implicitly constraining tribes’ sovereign author-

ity. We conclude that the EPA’s construction of the 1987

amendment to the Clean Water Act - that tribes may

establish water quality standards that are more stringent

than those imposed by the federal government - is per-

missible because it is in accord with powers inherent in

Indian tribal sovereignty.

In the second question at issue, Albuquerque argues

that § 1377 does not expressly permit Indian tribes to

enforce effluent limitations or standards under § 1311 to

upstream point source dischargers outside of tribal

boundaries. Albuquerque misconstrues the Clean Water

Act by selectively reading isolated sections; the Clean

Water Act is a comprehensive regulatory scheme, and it

must be read as such. The express incorporation in

§ 1377(e) of §§ 1341 and 1342 gives the EPA the authority

to issue NPDES permits in compliance with a tribe’s

12 See, e.g., United States v. Wheeler, 435 U.S. 313, 323 (1978).

For example, Indian tribes could use their water rights, which

are an element of tribal sovereignty, to assert an action against

upstream polluters or to recover damages for groundwater

contamination. See Comment, Indian Reserved Water Rights

Doctrine and the Groundwater Question, 19 Am. Indian L. Rev. 403,

441 n.297 (1994).

_ /

App. 18

water quality standards.!3 Section 1341 authorizes states

to establish NPDES programs with the EPA, and § 1342

authorizes the EPA to issue NPDES permits in compli-

ance with downstream state’s water quality standards.

See Arkansas, 503 U.S. at 102, 107 (construing §§ 1341 and

1342 as giving the EPA authority to require an upstream

NPDES discharger to comply with downstream state

water quality standards). Under the statutory and regula-

tory scheme, tribes are not applying or enforcing their

water quality standards beyond reservation boundaries.'4

Instead, it is the EPA which is exercising its own author-

ity in issuing NPDES permits in compliance with down-

stream state and tribal water quality standards. In regard

to this question, therefore, the 1987 amendment to the

Clean Water Act clearly and unambiguously provides

tribes the authority to establish NPDES programs in con-

junction with the EPA. Under §§ 1311, 1341, 1342 and

1377, the EPA has the authority to require upstream

NPDES dischargers, such as Albuquerque, to comply

with downstream tribal standards.

13 While § 1377 incorporates § 1342, § 1342 incorporates

§ 1311 and thereby provides the EPA the authority to issue

NPDES permits to upstream point source dischargers which are

in compliance with downstream state’s and tribe’s water quality

standards.

4 Although, Indian tribes could have inherent jurisdiction

over non-Indian conduct or non-Indian resources if there is

“some direct effect on the political integrity, the economic

security, or the health or welfare of the tribe.” Montana v. United

States, 450 U.S. 544, 566 (1981) (citations omitted).

App. 19

IV. APA’s Notice and Comment Requirements Under

the Clean Water Act’s Regulatory Scheme

Albuquerque next claims that the EPA failed to com-

ply with the procedural requirements of the Administra-

tive Procedure Act [APA] in approving the Isleta Pueblo’s

water quality standards. 5 U.S.C. §§ 551-559, 701-706.

Under the APA, we review agency action de novo to

determine whether it was “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). This standard of review is a narrow

one, and we are not empowered to substitute our judg-

ment for that of the EPA. Citizens to Preserve Overton Park,

Inc. v. Volpe, 401 U.S. 402, 416 (1971).

Albuquerque asserts that the EPA was engaged in

informal rulemaking when it approved the Isleta Pueblo’s

standards, and, therefore, it claims that the EPA violated

§ 553 of the APA by failing to include a statement of basis

and purpose for its action approving the Pueblo stan-

dards and by failing to provide for public notice and

comment. See 5 U.S.C. § 553. Albuquerque urges us to set

aside the EPA’s approval of the Isleta Pueblo standards

because of the EPA’s failure to comply with procedures

mandated by law. See 5 U.S.C. § 706(2)(D).

The intent of Congress expressed in the Clean Water

Act, however, was to require states or tribes to provide

for public participation in the adoption of water quality

standards. Section 1313(c)(1) provides:

The Governor of a State or the State water pollu-

tion control agency of such State shall from time

to time (but at least once each three year

al ,

App. 20

period . . . ) hold public hearings for the pur-

pose of reviewing applicable water quality stan-

dards and, as appropriate, modifying and

adopting standards. Results of such review shall

be made available to the Administrator.

33 U.S.C. § 1313(c)(1). Under the water quality standards

provisions of the Clean Water Act, it is the states and

tribes which conduct rulemaking proceedings.15 This is in

accord with Congress’s intent to preserve a primary role

for the states and tribes in eliminating water pollution.

The results of state and tribal rulemaking proceedings are

then presented to the EPA for approval. The Fourth Cir-

cuit has explained the EPA’s 'imited role in reviewing

water quality standards proposed by states, stating:

EPA sits in a reviewing capacity of the state-

implemented standards, with approval and

rejection powers only... .

[S]tates have the primary role, under § 303 of the

CWA (33 U.S.C. § 1313), in establishing water

quality standards. EPA’s sole function, in this

respect, is to review those standards for

approval.

Natural Resources Defense Council v. EPA, 16 F.3d 1395,

1399, 1401 (4th Cir. 1993) (emphasis in Original) (citation

omitted). Congress clearly intended the EPA to have a

15 In contrast, Congress requires the EPA to conduct notice

and comment rulemaking Procedures when it promulgates

federal water quality standards. 33 U.S.C. § 1313(c)(4). Section

1313 makes a clear distinction between the procedures required

for approval of state standards and rulemaking to promulgate

federal standards.

App. 21

limited, non-rulemaking role in the establishment of

water quality standards by states and tribes, and, conse-

quently, no statement of basis or purpose for its actions

was necessary.

Additionally, Congress provided the EPA sixty days

for approval and ninety days for disapproval of water

quality standards proposed by states and tribes. 33 U.S.C.

§ 1313(c)(3). Congress could not reasonably expect the

EPA to conduct APA notice and comment rulemaking

proceedings within sixty or ninety days. Thus, the time

restriction for the EPA’s review of state and tribal water

quality standards supports. our conclusion that Congress

intended the EPA to have a very limited role and did not

intend EPA to engage in informal rulemaking.

More important, however, public participation in the

establishment of water quality standards occurs when

states and tribes review or revise water quality standards.

See 33 U.S.C. § 1313(c)(1) (requiring states to hold public

hearings when reviewing or revising water quality stan-

dards). All comments submitted to a state or tribe during

the comment period become part of the administrative

record and are reviewed by the EPA in determining

whether to approve the state’s or tribe’s proposed stan-

dards. Consequently, the purpose of public notice and

comment under the APA is satisfied under the Clean

Water Act without requiring the EPA to receive additional

comments. The State of New Mexico has commented on

the effectiveness of Congress’s approach in the Clean

Water Act and the potentially negative impact of Albu-

querque’s proposed approach:

App. 22

The Clean Water Act’s approach, therefore,

is to place the primary responsibility on states to

adopt and implement their own water quality

standards provided only that they cannot be less

stringent than the Act requires. Nothing in the

Act evidences any intent that EPA involve itself

in the details or substance of the process, except

only to make sure that the states have complied

with the Act. Nor does the Act indicate any

intent that EPA duplicate the hearing, notice,

and comment process conducted by the State. To

the contrary, the short time periods given to

EPA imply the opposite, since full notice and

comment procedures generally take many

months. Indeed, the State of New Mexico’s most

recent triennial review, with its notice, com-

ment, and hearing process, took more than a

year to be completed.

Not only would the expansive EPA review

of the tribal water quality standards sought by

the City duplicate the lengthy process already

undertaken by the tribe itself in adopting the

standards, it is doubly unnecessary because of

the notice, comment, and hearing process

entailed in issuance of NPDES permits. As it

was, there was full opportunity for notice, com-

ment and hearing both for adoption of the Isleta

standards (conducted by the Pueblo) and for

issuance of the City’s NPDES permit (conducted

by EPA). To require yet another detailed notice,

comment and hearing process by EPA would be

to inject more bureaucracy, delay and expense

into an already lengthy process that allows

ample opportunity for public input.

Brief of Amici Curiae New Mexico Environment Depart-

ment and State of New Mexico ex rel. Tom Udall, at 10-11.

App. 23

We conclude that the notice and comment requirements

of the APA are satisfied by the Clean Water Act's pro-

cedural scheme and that the EPA has reasonably imple-

mented the Act’s procedural requirements.

In this case, the Isleta Pueblo gave public notice and

provided for a comment period in establishing its pro-

posed water quality standards. On June 8-11, 1991, the

Isleta Pueblo published a notice of a public hearing on its

proposed standards in the Albuquerque Journal, as

required by 33 U.S.C. § 1313(c)(1). The Isleta Pueblo also

mailed notice of the hearing to potentially interested

parties, including the City of Albuquerque. The Isleta

Pueblo held a public hearing on August 7, 1991. Later, an

additional opportunity for notice, comment, and hearing

was provided by the EPA in issuing Albuquerque’s

NPDES permit. Thus, a full and fair opportunity for

public notice, comment, and hearing was provided in this

case in accordance with the APA and the Clean Water

Act.

V. The Rational Basis of the EPA’s Approval of Isleta

Pueblo’s Standards

Albuquerque also claims that the EPA’s approval of

the Isieta Pueblo standards was unsupported by a ratio-

nal basis on the record and was therefore arbitrary and

capricious. Albuquerque argues that the EPA was

required to reject the Isleta Pueblo’s water quality stan-

dards unless the EPA had established its own record

App. 24

based on a sound scientific rationale for each particular

provision.16

The EPA, however, reviews proposed water quality

standards only to determine whether they are stringent

enough to comply with the EPA’s recommended stan-

dards and criteria. If the proposed standards are more

stringent than necessary to comply with the Clean Water

Act’s requirements, the EPA may approve the standards

without reviewing the scientific support for the stan-

dards. Whether the more stringent standard is attainable

is a matter for the EPA to consider in its discretion;

sections 1341 and 1342 of the Clean Water Act permit the

EPA and states to force technological advancement to

attain higher water quality. See United States Steel Corp. v.

Train, 556 F.2d 822, 838 (7th Cir. 1977); Homestake Mining

Co. v. EPA, 477 F. Supp. 1279, 1283 (D. $.D. 1979). The

EPA’s letter approving the Isleta Pueblo standards

explains that it is approving the standards, despite their

departure from the EPA’s guidelines, based on the Tribe’s

authority to adopt standards more stringent than the

minimum requirements of the Clean Water Act.17

‘© Albuquerque has repeatedly complained that the Isleta

Pueblo standards are unattainable, totally irrational, and would

place excessive economic burdens on the City. These complaints

are belied by the NPDES permit settlement which applies the

Isleta Pueblo standards to Albuquerque. Presumably,

Albuquerque would not have agreed to the NPDES permit

settlement if the water quality standards placed impossible

demands on it.

17 Appellant’s App. at 966 (Letter from the EPA to the

Pueblo of Isleta (Dec. 24, 1992)). See our discussion of the Tribe’s

authority to adopt standards mure stringent than the minimum

required by the Clean Water Act, infra Part III.

App. 25

The EPA considered Isleta Pueblo’s rationale for each

of the standards challenged by Albuquerque, and the

tribe’s record contains detailed responses to all of the

criticisms expressed by the EPA and Albuquerque. The

record contains a detailed explanation of the Isleta

Pueblo’s scientific, technical, and policy reasons for

choosing to establish more stringent standards. For exam-

ple, the Isleta Pueblo stated that stringent standards are

justified because of prevailing drought conditions and the

need to protect sensitive subpopulations. The EPA con-

cluded that the standards were consistent with the Clean

Water Act’s requirements and should therefore be

approved. The arbitrary and capricious review standard

is very deferential; “an agency ruling is ‘arbitrary and

capricious if the agency nas . . . entirely failed to consider

an important aspect of the problem.’ ” Arkansas, 503 U.S.

at 113 (citation omitted). Albuquerque has not shown that

the EPA failed to consider an important aspect of the

Isleta Pueblo’s water quality standards.

Additionally, the essence of Albuquerque’s complaint

is with the policy choice of Congress and the EPA to

afford states and tribes the ability to force the develop-

ment of technology through more stringent water quality

standards. “It is not our role . . . to decide which policy

choice is the better one, for it is clear that Congress has

entrusted such decisions to the Environmental Protection

Agency.” Arkansas, 503 U.S. at 114.

In its next claim, Albuquerque argues that the Isleta

Pueblo criteria approved by the EPA are not stringent

enough to protect the Tribe’s designated use standard

described as primary contact ceremonial use. The Tribe

describes primary contact ceremonial use as involving the

F /

App. 26

“immersion and intentional or incidental ingestion of

water.” Albuquerque argues that this requires the river

water quality to meet the standards of the Safe Drinking

Water Act, 42 U.S.C. § 300f, and the Isleta Pueblo’s water

quality criteria approved by the EPA fail to protect water

used under the ceremonial use standard.

As the district court stated:

This argument seems far-fetched. The pri-

mary contact ceremonial use appears to resem-

ble a fishable/swimmable standard, which

assumes the ingestion of some water, more than

it resembles a safe drinking water standard,

which assumes the ingestion of a volume of

water daily.

Albuquerque, 865 F. Supp. at 740. The federal drinking

water standards apply only to a “public water system,”

which is defined as a system supplying piped water for

human consumption serving at least twenty-five persons

or having at least fifteen service connections. 42 U.S.C.

§ 300f(4). The Isleta Pueblo’s ceremonial use standard

does not convert the Rio Grande River into a public water

system. The EPA considered and approved this aspect of

the Isleta Pueblo water quality standards. We decline to

second-guess the EPA’s technical determination, which is

entitled to substantial deference, that the Isleta Pueblo’s

water quality criteria adequately protect its ceremonial

designated use standard.

App. 27

VI. The EPA’s Dispute Resolution Process

The 1987 amendment directs the EPA Administrator

to establish “a mechanism for the resolution of any unrea-

sonable consequences that may arise as a result of differ-

ing water quality standards that may be set by states and

Indian tribes located on common bodies of water.” 33

U.S.C. § 1377(e). In response to this directive, the EPA

adopted regulations providing for mediation or arbitra-

tion to resolve disputes over unreasonable consequences

of tribal water quality standards. See 40 C.F.R. 131.7. In

developing the regulations, the EPA considered whether,

in addition to the state and the tribe, affected parties

should be involved in the resolution process, and deter-

mined that such parties could be invited to participate.

The EPA regulations, however, permit only states and

tribes to initiate the resolution process because they are

the entities authorized to revise or modify the water

quality standards in dispute.

Albuquerque argues that the EPA’s dispute resolu-

tion mechanism fails to meet the statutory requirement

because it deprives interested third parties from initiating

the process and because its reliance on mediation and

non-binding arbitration is inadequate to resolve such dis-

putes. Section 1377(e) does not specify how or by whom

the dispute resolution mechanism shall be initiated.

Rather, § 1377(e) is worded to give the EPA Administrator

broad discretion in establishing the dispute resolution

process. The EPA’s decision to use mediation and non-

binding arbitration is consistent with the Clean Water

Act’s requirement that the EPA encourage cooperative

activities by the states. 33 U.S.C. § 1253(a). The need for a

dispute resolution mechanism to resolve unreasonable

App. 28

consequences stems from the possibility that two sover-

eigns — a state and a tribe - may impose different water

quality standards on a common body of water. It is rea-

sonable, therefore, to allow only those two sovereigns to

initiate the dispute resolution process to resolve their

differences rather than to include affected permittees

such as Albuquerque. As successfully occurred through

the negotiated settlement in this case, the dispute resolu-

tion mechanism allows the state and tribe to invite third

parties to participate. Courts reviewing an agency action

should afford “the EPA’s interpretation of the governing

law an appropriate level of deference.” Arkansas, 503 U.S.

at 112 (citing Chevron, 467 U.S. at 842-44). The EPA’s

establishment of a dispute resolution mechanism that

relies on tribal and state cooperation to address unrea-

sonable consequences was a reasonable interpretation of

§ 1377(e) and is entitled to deference.

VII. The Tribe’s Ceremonial Usage and the Establish-

ment Clause

Albuquerque next claims that the EPA’s approval of

the Pueblo’s ceremonial use designation offends the

Establishment Clause of the First Amendment. The First

Amendment provides in relevant part: “Congress shall

make no law respecting an establishment of religion. .. . ”

U.S. Const. amend. I. Government action does not violate

the Establishment Clause if “[t]he challenged govern-

mental action has a secular purpose, does not have the

principal or primary effect of advancing or inhibiting

religion, and does not foster an excessive entanglement

with religion.” Lamb’s Chapel v. Center Moriches Union Free

App. 29

School District, 508 U.S. 384, 394 (1993) (citing Lemon v.

Kurtzman, 403 U.S. 602, 612-13 (1971)).18

The EPA approved Isleta Pueblo’s promulgation of

“Primary Contact Ceremonial Use” as a designated use of

the Rio Grande River within the boundaries of the Indian

reservation. The tribe defines “Primary Contact Ceremo-

nial Use” as “the use of a stream, reach, lake, or

impoundment for religious or traditional purposes by

members of the PUEBLO OF ISLETA; such use involves

immersion and intentional or incidental ingestion of

water.”19 Appellant’s App. at 1254. Albuquerque argues

that the EPA’s approval of this standard violates all three

aspects of the Establishment Clause under Lemon.

First, Albuquerque argues that the reason for the

designated use is explicitly sectarian. The secular pur-

pose requirement does not mean that a law’s purpose

must be unrelated to religion because that would require

” ‘that the government show a callous indifference to

religious groups,’ . . . and the Establishment Clause has

never been so interpreted.” Corporation of Presiding Bishop

of Church of Jesus Christ of Latter-day Saints v. Amos, 483

U.S. 327, 335 (1987) (citation omitted). The EPA’s approval

of the primary contact ceremonial use designation serves

a clear secular purpose: promotion of the goals of the

Clean Water Act. The EPA’s purpose in approving the

18 In Lamb's Chapel the Court notes that the continued

validity of Lemon has come into question, but it “has not been

overruled.” 508 U.S. at 395 n.7.

19 It is noteworthy that the ceremonial use encompasses

water used for either religious or traditional purposes.

App. 36

designated use is unrelated to the Isleta Pueblo’s reli-

gious reason for establishing it. The Isleta Pueblo’s desig-

nation of a ceremonial use does not invalidate the EPA’s

overall secular goal.

Second, Albuquerque claims that the EPA’s action has

a primary effect of advancing religion. We disagree. The

EPA is not advancing religion through its own actions,

and it is not promoting the Isleta Pueblo’s religion. The

primary effect of the EPA’s action is to advance the goals

of the Clean Water Act.

Third, Albuquerque asserts the designated use

results in excessive governmental entanglement with reli-

gion because the Pueblo and the EPA must inquire on an

ongoing basis whether the standards adequately protect

religious uses of the river water. This argument is merit-

less. “There is no genuine nexus between” the EPA’s

approval of the ceremonial use standard “and establish-

ment of religion,” Walz v. Tax Commission of City of New

York, 397 U.S. 664, 675 (1970), and the EPA’s approval of

the standard provides only an incidental benefit to reli-

gion. See Lamb's Chapel, 508 U.S. at 395.20 The EPA's

approval of the ceremonial use standard does not require

20 If anything, the agency’s approval furthers the free

exercise of religion, consistent with the policy expressed in the

American Indian Religious Freedom Act. See 42 U.S.C. § 1996

(Supp. 1994) (“[I]t shall be the policy of the United States to

protect and preserve for American Indians their inherent right

of freedom to believe, express, and exercise the traditional

religions of the American Indian, .. . including but not limited

to... the freedom to worship through ceremonials and

traditional rites.”).

App. 31

any governmental involvement in the Isleta Pueblo’s reli-

gious practices. Excessive governmental entanglement

will not result when the EPA incorporates the Isleta

Pueblo’s water quality standards in issuing future NPDES

permits.

The district court correctly rejected Albuquerque’s

Establishment Clause claim.

VIII. Isleta Pueblo’s Standards and Vagueness

Albuquerque asserts that the Isleta Pueblo’s stan-

dards were so vague as to deprive Albuquerque of due

process. We will not declare a regulation unconstitu-

tionally vague if it puts the regulated party on notice as

to what conduct is required. See Komjathy v. National

Transp. Safety Bd., 832 F.2d 1294, 1297 (D.C. Cir. 1987), cert.

denied, 486 U.S. 1057 (1988); Brock v. L.R. Willson & Sons,

Inc., 773 F.2d 1377, 1387 (D.C. Cir. 1985). There is a strong

presumption that regulations are not unconstitutionally

vague if the regulated party has the means of obtaining

clarification either by making inquiry or through an

administrative process. Hoffman Estates v. Flipside, Hoff-

man Estates, 455 U.S. 489, 498 (1982).

Albuquerque complains that the Isleta Pueblo stan-

dards use unconstitutionally vague narrative terms, such

as “ ‘objectionable . . . floating materials,’ ‘[c]ontaminants

[which] . . . impart unpalatable flavor to fish,’ ‘nutrients

[which] produce objectionable algal densities,’ ‘waters

[which are]... virtually free of pathogens,’ and ‘turbidity

[which] causes an unaesthetic and substantial visible con-

trast.’ ” Appellant’s Br. at 48-49 (alterations, emphasis,

- /

App. 32

and omissions in original). Albuquerque appears to mis-

understand the process established by the EPA under the

Clean Water Act. The EPA regulations allow water quality

standards, such as the Isleta Pueblo standards, to be

narrative descriptions. 40 C.FR. § 131.11 (1995). These

standards, however, do not require any particular con-

duct by Albuquerque; instead, Albuquerque is on notice

that its revised NPDES permit may contain tie specific

standards which must be satisfied. Plaintiff’s claim of

vagueness is without merit because an administrative

procedure is in place through which it will have notice of

the specific enforceable standards that it must meet.

IX. Conclusion

For the foregoing reasons, we AFFIRM the district

court’s denial of Plaintiff’s motion for summary judg-

ment and its granting of Defendant’s motion for sum

mary judgment.

AFFIRMED.

App. 33

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

CITY OF ALBUQUERQUE,

Plaintiff,

)

Vv. )

CAROL M. BROWNER,

)

No. 93-82-M Civil

Administrator, United States

Environmental Protection Agency,

Defendant.

MEMORANDUM OPINION

AND

ORDER

(Filed Oct. 21, 1993)

This matter comes on for consideration on cross

motions for summary judgment filed June 11, 1993. Hav-

ing reviewed the motions, responses and replies, and

being otherwise fully apprised in the premises, I find that

defendants’ motion is well taken and will be granted and

that plaintiff's motion is not well taken and will be

denied.

The City filed suit under the Administrative Pro-

cedures Act, 5 U.S.C. § 500 and under the Declaratory

Judgment Act, 28 U.S.C. §§ 2201, 2202. This Court is

authorized to review the actions of federal agencies

under the Administrative Procedures Act, 5 U.S.C. § 500.

iii

App. 34

BACKGROUND

This case concerns the quality of Rio Grande water

south of Albuquerque where the river flows through

Isleta Pueblo. The river runs north to south through New

Mexico before turning east and south to form the border

between Texas and Mexico. Albuquerque’s waste treat-

ment facility outfall is approximately five files north of

the Isleta Pueblo boundary.

The waste treatment facility discharges to the Rio

Grande under a National Pollution Discharge Elimination

System (hereinafter “NPDES”) permit issued by the U.S.

Environmental Protection Agency (hereinafter “EPA”).

EPA sets permit discharge limits for the facility to meet

New Mexico’s water quality standards. EPA revised the

City’s NPDES permit a year ago to reflect the State’s new,

more stringent standards. On October 12, 1992, while that

revision was in progress, EPA recognized Isleta Pueblo as

a state for purposes of the Clean Water Act, § 518(e), 33

U.S.C. § 1377(e). EPA delayed issuing the City’s revised

permit until the Pueblo’s proposed water quality stan-

dards were approved. EPA approved the Pueblo’s stan-

dards on December 24, 1992, and is preparing a NPDES

permit for the City wastewater treatment facility that will

meet the Pueblo’s standards as well as the State’s. The

Pueblo’s standards are more stringent than the State’s.

The City of Albuquerque challenges the agency’s

approval of Isleta Pueblo’s water quality standards.

The City filed a complaint on January 25, 1993, and

on February 2, 1993, moved this court for a temporary

restraining order and then for a preliminary injunction.

After a hearing on February 17, 1993, I denied both

App. 35

requests. The City amended its complaint on March 16,

1993, and renewed its motion for a preliminary injunction

on July 23, 1993, after receiving EPA’s Draft NPDES per-

mit. The patties filed cross motions for summary judg-

ment on June 11, 1993, and submitted responses and

replies to one another’s motions.

The City challenges the agency’s approval of the

Pueblo’s water quality standards on several grounds.

Specifically, the City alleges that EPA failed to follow the

required procedures in approving the standards, misin-

terpreted two provisions of the Act in approving the

standards, and approved standards that are unconstitu-

tional. Further, the City asserts that EPA violated the Act

by failing to provide a mechanism to resolve unreason-

able consequences which arise when a State and a Tribe

impose different standards on a commen body of water,

and by failing to ensure that the Pueblo standards are

stringent enough to protect the designated uses. Finally

the City asserts that the Pueblo’s water criteria are with-

out any rational scientific basis and should not have been

approved.

DISCUSSION

The parties dispute the appropriate scope of the

court’s review and the materials which properly form the

record for review.

A. Scope of Review

The City asks this court to review the agency’s deci-

sion under the Administrative Procedures Act, 5 U.S.C.

App. 36

§ 551 (hereinafter “APA”). The City also asserts jurisdic-

tion under the Declaratory Judgment Act 28 U.S.C.

§§ 2201, 2202, and argues that the court's authority under

the Declaratory Judgment Act expands the record avail-

able for judicial review beyond the administrative record

compiled by the agency. The City cites no authority for

this argument, EPA’s position is that the court may prop-

erly review only the administrative record the agency

reviewed in making the challenged decision. Florida

Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985).

The reviewing court does not review the fact de novo or

reach an independent conclusion. Id. at 744. The Declara-

tory Judgment Act is not an independent grant of juris-

diction and does not enlarge the parties’ substantive

rights. Action brought under the Declaratory Judgment

Act does not alter the scope of review. Davis v. United

States Dept. of Housing, 627 F.2d 942 (9th Cir. 1980).

The agency is correct but the argument is of no

matter in this case. The information relied on by the City

is incorporated into the administrative record in the form

of comments to the Pueblo or to EPA, or was presented at

the February 17 hearing. I consider the administrative

record in reviewing the agency's decision to approve

Isleta’s standards, but I cannot fail to take notice of the

information presented in the hearing, much of which the

agency did not dispute.

I review the EPA’s decision to approve Isleta’s water

quality standards to determine whether it was “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law; . . . without observance of pro-

cedure required by law; . . . [or] unsupported by substan-

tial evidence. .. . ” Administrative Procedures Act, 5

App. 37

U.S.C. § 706(2). The arbitrary and capricious standard

demands considerable deference to agency decisions and

presumes the validity of the agency’s action. Colorado

Health Care Ass’n v. Colorado Dept. of Social Services,

842 F.2d 1158, 1164 (10th Cir. 1988). The substantial evi-

dence inquiry is whether the agency based its decision on

relevant evidence a reasonable mind might accept as

appropriate to support such a decision. Foust v. Lujan,

942 F.2d 712, 714 (10th Cir. 1991).

The standard of review is very narrow. The reviewing

court must affirm a reasoned decision which is supported

by substantial evidence in the record. Shell Oil v. Costle,

595 F.2d 224 (Sth Cir. 1979). Judicial review is especially

deferential where the agency interprets its own regula-

tions. Roberts v. Methow Valley Citizen’s Council, 490

U.S. 332, 358-59 (1989). The agency has broad discretion

when faced with conflicting technical opinions. Holy

Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1524

(10th Cir. 1992). The reviewing court must affirm a rea-

soned decision which rests on a review of all relevant

information, even if the reviewing court would not have

reached the same conclusion. Citizens to Preserve Over-

ton Park Inc. v. Volpe, 401 U.S. 402, 416 (1971). The City

here misconstrues the endpoint of judicial review. Were I

to find the agency acted arbitrarily or outside the scope of

its authority, I may order it to reconsider its decision in

light of additional relevant information, but I may not

impose a new decision on the agency. Florida Power &

Light Co. at 744.

ee eee

—

a ,

App. 38

B. Statutory Requirements

The Clean Water Act (hereinafter “Act”) is a compre-

hensive statute designed to “restore and maintain the

chemical, physical, and biological integrity of the

Nation’s waters” through the reduction and eventual

elimination of pollutant discharge into those waters.

Clean Water Act § 101(a), 33 U.S.C. 1251(a). The Act

anticipates a partnership between the federal government

and the States in cleaning up the nation’s waterways.

Clean Water Act § 101(b), 33 U.S.C. § 1251(b). States are

free to set water quality standards so as to force the

development of technology. United States Steel Corp. v.

Train, 556 F.2d 822, 838 (7th Cir. 1977).

In 1987, Congress revised the Act, authorizing the

EPA Administrator to treat Indian Tribes as States for the

purposes of the Clean Water Act so long as the Tribes

meet certain enumerated criteria. Clean Water Act § 518,

33 U.S.C. § 1377. A Tribe which meets the criteria listed in

§ 518(e), 33 U.S.C. § 1377(e) and 40 C.ER. § 131.8(a), may

submit an application to the EPA that includes: a state-

ment that thesSecretary of the Interior recognizes the

Tribe; a statement documenting that the current Tribal

governing body carries out substantial government func-

tions; and description of the Tribe’s authority to regulate

water quality; a description of the Tribe’s ability to

administer a water quality standards program; and any

additional information the Administrator may require. 40

C.ER. § 131.8 (1992).

Upon receipt of the application, the Regional Admin-

istrator will notify appropriate government entities of the

Tribe’s application and the basis of the Tribe’s authority

App. 39

to regulate water quality. The Administrator provides a

thirty-day period to receive comments on the Tribe’s

assertion of authority. If comments challenge the Tribe’s

authority, the Regional Administrator, after consulting

with the Secretary of the Interior, shall determine

whether the Tribe meets the requirements of 40 C.ER.

§ 131.8(a)(3) (1992).

Once recognized as a State for purposes of the Act, a

Tribe may submit proposed water quality standards ts

EPA. The Act provides for two measures of water quality.

One measure is an “effluent limitations guideline.” Efflu-

ent limitation guidelines are uniform, technology-based

standards, promulgated by EPA, which restrict the quan-

tities, rates and concentrations of specified substances

discharged from point sources. See Clean Water Act

§§ 301 and 304, 33 U.S.C. §§ 1311, 1314. The other mea-

sure of water quality is a “water quality standard.”

Unlike the technology-based effluent limitations guide-

lines, water quality standards are not based on pollution

control technologies, but express the desired condition or

use of a particular waterway. Water quality standards

supplement technology-based effluent limitations guide-

lines “so that numerous point sources, despite individual

compliance with effluent limitations, may be further reg-

ulated to prevent water quality from falling below accept-

able levels.” Environmental Protection Agency v.

California ex re. State Water Resources Control Bd., 426

U.S. 200, 205 n.12 (1976).

Water quality standards consist of three elements: (1)

one or more designated “uses” of each waterway (e.g.,

public water supply, recreation, or agriculture) consistent

with the goals of the Act as articulated in § 101; (2)

App. 40

“criteria” expressed in numerical concentration levels or

narrative statements specifying the amount of various

pollutants that may be present in the water and still

protect the designate uses; and (3) an anti-degradation

provision. Clean Water Act 303 (c)(2)(A), 33 U.S.C.

§ 1313(c)(2)(A); 40 C.ER. Part 131 (1992).

EPA provides States with substantial guidance in

drafting water quality standards. Section 304(a) of the Act

requires EPA to develop criteria for water quality that

reflect the latest scientific knowledge, and to provide

those criteria to the States as guidance. Clean Water Act

§ 304(a), 33 U.S.C. § 1314(a). The States are free to draw

upon EPA’s recommended water quality criteria, but are

equally free to use other criteria for which they have

sound scientific support. See 48 Fed. Reg. 51,400, 51,411

(1983).

Prior to adopting or revising any water quality stan-

dard, the state must provide notice and an opportunity

for a public hearing. 40 C.ER. § 131.10 (1992). States must

adopt criteria that protect the designated uses. 40 C.ER.

§ 131.11 (1992). The criteria may be based on EPA guid-

ance, EPA guidance modified to reflect conditions at the

site, or on other scientifically defensible methods. Id.

After adoption, the States must submit the water

quality standards to EPA for review and approval. Clean

Water Act § 303(c)(2), 33 U.S.C. § 1313(c)(2); 40 C.ER.

§ 131.20(c) (1992). EPA reviews the Sate’s [sic] water

quality standards to ensure they are consistent with the

Act’s requirements. Clean Water Act § 303(c)(3), 33

U.S.C. § 1313(c)(3). If EPA concludes that the standards

are inconsistent with the Act, the agency must notify the

App. 41

State of that fact within ninety days and specify the

changes necessary to bring the proposed standards into

compliance. Clean Water Act § 303(c)(3), 33 U.S.C.

§ 1313(c)(3). If the State fails to adopt the specified

changes within ninety days, the agency will promptly

propose a federal water quality standard, and will issue a

final federal standard within 30 days of proposal. Clean

Water Act § 303(c)(4)(A), 33 U.S.C. § 1313(c)(4)(A).

C. Procedural Challenges

The City asserts that the agency failed to meet pro-

cedural requirements imposed on all agency rulemaking

by the Administrative Procedures Act, 5 U.S.C. § 553.

Specifically, the City argues that approval of Isleta’s stan-

dards was rulemaking, and the agency had to give the

public notice and provide for a comment period prior to

approving the standards. Buckeye Power, Inc. v. EPA, 481

F.2d 162, 170 (6th Cir. 1973) (approval of state standards

under the Clean Air Act is rulemaking subject to pro-

cedural requirements of the Administrative Procedures

Act, 5 U.S.C. § 553).

States must hold public hearings when reviewing or

revising water quality standards. Clean Water Act

§ 303(c); 33 U.S.C. § 1313(c). On June 11-11, 1991, the

Pueblo published notice of a public hearing on its pro-

posed standards in the Albuquerque Journal, as required

by § 303(c)(1) of the Act, 33 U.S.C. § 1313(c)(1). The

Pueblo also mailed notice of the hearing to potentially

interested parties, including the City. The Pueblo held a

public hearing on August 7, 1991. When the agency issues

a federal water quality standard, it must provide public

App. 42

notice and comment. Clean Water Act § 303(b), 33 U.S.C.

§ 1313(b). However, EPA asserts that it need not provide

notice and comment prior to approving state water qual-

ity standards for several reasons. First, the plain language

of the Act requires the agency to provide notice when it

promulgates a standard and requires states to provide

notice when they promulgate or revise standards. If Con-

gress wanted the agency to provide additional notice

upon approving state standards, it could have included

that language in § 303(c)(1). Second, all comments sub-

mitted to a State or Tribe during the comment period

become part of the administrative record and are

reviewed by the Administrator in deciding whether to

accept or reject the State’s proposed standards. Id. There-

fore, the purpose of notice and comment is satisfied

under the Act without an additional comment period. No

purpose is severed by requiring the Administrator to

receive comments. Finally, the statute allows the Admin-

istrator sixty days to approve State standards, and the

time frame precludes another notice and comment

period. I am persuaded that the purposes of the APA are

met under the Act’s procedural scheme, that the agency

has reasonably implemented the Act’s procedural

requirements and has committed no procedural error.

D. Sections 510 and 518

The City next argues that EPA improperly imple-

mented § 518, autherizing EPA to treat Tribes as States,

when it incorrectly determined that § 510 of the Act

applies to Tribes as well as to states. Sections 510 forbids

any state from imposing any “effluent limitation, or other

limitation, effluent standard, prohibition, pretreatment

App. 43

standard, or standard of performance” which is less strin-

gent than federal standards. Clean Water Act § 510, 33

U.S.C. § 1370. The section preserves the state’s right to

impose standards or limits that are more stringent than

those imposed by the federal government. Id. Section 518

does not reference § 510, but it does incorporate § 303,

authorizing States to develop water quality standards.

Under the City’s reading of § 518, Tribes would be autho-

rized to develop water quality standards neither more

nor less stringent than federal standards. This Construc-

tion makes § 518 meaningless and conflicts with EPA’s

stated policy with respect to Indian Tribes and with gen-

eral principles of federal Indian law. See State of Wash-

ington Department of Ecology v. Environmental

Protection Agency, 752 F.2d 1465, 1471 (9th Cir. 1985).

EPA has consistently interpreted § 518 to include § 510,

and has interpreted § 510 as a savings clause, recognizing

an authority already held by the states rather than confer-

ring some new authority. 56 Fed. Reg. 64,886 (1991).

EPA’s position is further supported by the reference

to § 1341 in § 518. Section 1341 appears to require EPA to

issue permits that comply with a downstream state’s

water quality standards. Clean Water Act § 401, 33 U.S.C.

§ 1341; Arkansas v. Oklahoma, __ U.S. __, 112 S.Ct.

1046, 1055 n.9 (1992). The Supreme Court found that,

even if the Act does not require the upstream discharger

to comply with downstream state standards, the statute

does not limit EPA’s authority to require such compli-

ance. Arkansas v. Oklahoma, 112 S.Ct. at 1056. I believe

the same argument must apply to an upstream discharger

and a downstream Tribe. I find no support for the City’s

App. 44

position on this issue and hold that EPA properly recog-

nized the Pueblo’s authority to develop water quality

standards more stringent than those of the federal gov-

ernment.

E. Mechanism to Resolve Unreasonable Consequences

The Act directs the Administrator to establish a

mechanism for resolving any unreasonable consequences

arising when a State and a Tribe impose different water

quality standards-on a common body of water. Clean

Water Act § 518(e), 33 U.S.C. § 1377(e). The City com-

plains that EPA’s regulations only allow a State or a Tribe

to initiate the resolution process, and therefore the mech-

anism fails to meet statutory requirements. In developing

the regulations the EPA considered whether, in addition

to the State and the Tribe, affected parties should be

involved in the resolution process and determined that

such parties could be invited to participate. However, the

EPA allows only States and Tribes to initiate the resolu-

tion process because they are the entities authorized to

revise or modify the water quality standards in question.

I find that EPA’s regulations meet the statutory mandate,

were developed after careful consideration of relevant

factors and are not arbitrary or capricious.

F. Failure to Protect Designated Uses

The City next changes gears to argue that the EPA

improperly accepted Pueblo standards that are not strin-

gent enough to protect the designated uses, specifically

App. 45

primary contact ceremonial use and primary contact rec-

reational use. Pueblo members are reluctant to describe

what ceremonial use of the river entails, but the parties

agree that this use includes some ingestion of water. The

City assumes that this use therefore requires the river to

meet Safe Drinking Water Act, 42 U.S.C. § 300f, stan-

dards. The proposed water quality standards do not

ensure drinking water quality in the river and, therefore,

the City argues that EPA improperly approved the stan-

dards.

This argument seems far-fetched. The primary con-

tact ceremonial use appears to resemble a fishable/swim-

mable standard, which assumes the ingestion of some

water, more than it resembles a safe drinking water stan-

dard, which assumes the ingestion of a volume of water

daily. None of the comments recorded in the administra-

tive record, including those made by the City, cautioned

the Pueblo or the EPA that the standards are not stringent

enough and I reject the argument.

G. Standards are Unconstitutional

The City first suggests that the EPA, in recognizing a

ceremonial use standard, has violated the Constitution’s

Establishment Clause by imposing a mandate which aids

tribal religion at City expense. Both the City and EPA

correctly cite Lemon v. Kurtzman, 403 U.S. 602 (1971) as

the proper analytical framework for this question. EPA

asserts that the primary purpose of the designated uses is

to support the goals of the Clean Water Act. The Pueblo’s

designation of a ceremonial use does not invalidate the

overall secular goal. The EPA here does not advance

beaten me

App. 46

religion through its own actions, and is not promoting the

Pueblo’s religion. There is certainly no excessive entan-

glement here between the government and religion and I

reject the City’s Establishment Clause argument.

The City also argues that the standards are uncon-

stitutionally vague. The City’s vagueness argument is

insupportable. A regulation will not be deemed imper-

missibly vague as long as it puts the regulated party on

notice as to what conduct is required. Brock v. L.R. Will-

son & Sons, Inc., 773 F.2d 1377 (D.C. Cir. 1985). Water

quality standards, both desired uses and criteria, may be

merely narrative descriptions. 40 C.ER. §§ 131.1 and

131.2 (1992). The standards alone do not require any

particular conduct by the City. Rather, the City will have

notice of specific enforceable standards it must meet

when EPA issues the City’s revised NPDES permit.

H. Rational Basis, Unattainable

The City cites technical information outside the

administrative record to support its argument that the

Pueblo standards are unattainable. Much of this informa-

tion was presented in court. It is clear that the City raises

realistic technical concerns. However, EPA reviews pro-

posed water quality standards only to determine if they

are stringent enough to protect the proposed water qual-

ity standards. 40 C.F.R. §§ 131.5; 131.11(a) (1992). The

EPA does not believe it is authorized to reject proposed

standards because they are more stringent than back-

ground levels. 56 Fed.Reg. 64,886 (1991). EPA lacks the

authority to reject stringent standards on the grounds of

harsh economic or social effects. Homestake Mining Co.

= |

App. 47

v. Environmental Protection Agency, 477 ESupp. 1279,

1283 (D.S.D. 1979).

In reviewing the administrative record I find that the

agency and the Pueblo conferred extensively about tech-

nical aspects of the proposed standards and the Pueblo

was able to document, to the agency’s satisfaction, the

technical basis for the standards. For example, the City

argues that the Pueblo should include provisions in the

standards for low flow periods, during which standards

should be less stringent. The City asserts that the lack of

such provision makes the standards unattainable and too

expensive, and that they are therefore arbitrary and

capricious. When EPA suggested the Pueblo consider a

relaxation of the standards during low flow periods, the

Pueblo replied that members generally use the river more

intensively for ceremonial purposes during low flows,

and it would be particularly inappropriate to relax stan-

dards at those times. There are a number of examples in

the administrative record where the Pueblo provides EPA

with cogent reasons for retaining more stringent stan-

dards. The arbitrary and capricious review standard is

very deferential so long as the reviewing court can dis-

cern the agency’s journey from the factual record to the

decision. American Littoral Society v. Herndon, 720

F.Supp. 942, 950 (S.D.Fla. 1988). The agency has ade-

quately supported its decision-making process and I must

uphold EPA’s action to approve the Pueblo’s water qual-

ity standards.

Although under the standard of review imposed by

the APA I must uphold the agency decision in this case, I

note that the city raises some very troubling issues here. I

also note EPA’s apparently inconsistent position with

App. 48

respect to NPDES permits affecting water quality stan-

dards of downstream states. The EPA has argued that the

proper criterion to measure the effectiveness of a dis-

charge limit in meeting a downstream standard is

whether the discharge will measurably effect the water

quality in the downstream river. Arkansas v. Oklahoma,

112 S.C. at 1052. The legal issues in that case are distin-

guished because the focus in Arkansas was on the down-

stream state’s anti-degradation policy rather than the

designated uses and criteria challenged here. Oklahoma

challenged EPA’s reluctance to impose stricter discharge

limits in the NPDES discharge permit issued to an

upstream facility. The Supreme Court recognized the

agency’s authority to require compliance with the down-

stream state standards, and affirmed EPA’s determination

that the proposed permit would not measurably effect

Oklahoma’s water quality. EPA’s conclusion that down-

stream water quality would be unaffected by the dis-

charge was based on evidence in the record. In this case,

EPA is prepared to include limits in the City’s NPDES

permit to ensure that discharged water at the facility

outfall meets the water quality standards of the down-

stream state without first concluding that the quality of

the river water five miles further downstream will be

measurably improved. For example, the Pueblo’s arsenic

standard for the Rio Grande is three orders of magnitude

(1000 times) more stringent that the federal Safe Drinking

Water Standard, and is below the concentration that can

be accurately measured by current laboratory equipment.

EPA will impose this stringent limit on the City despite

the fact that arsenic occurs naturally in Albuquerque’s

App. 49

ground water at relatively high levels and is not dis-

charged to the water by industrial polluters. If pure water

is discharged at the City’s outfall, it is possible that the

arsenic levels in water flowing through the Pueblo will

remain relatively high. I raise this issue of the agency’s

apparent inconsistency because it is one I find troubling.

However, it relates to the issuance of a NPDES permit,

and it is not a question that this court has jurisdiction to

address.

CONCLUSION

I find that EPA followed the necessary procedural

steps in accepting Isleta Pueblo’s proposed water quality

standards. I also find that the agency decision was made

after consideration of all the relevant factors and was

neither arbitrary, capricious nor an abuse of discretion.

The agency acted in accordance with the law and its

decision is supported by substantial evidence in the

administrative record. The City’s motion for summary

judgment is denied. The EPA’s motion for summary judg-

ment is granted.

IT IS SO ORDERED.

/s/ Edwin L. Mechem

SENIOR UNITED STATES

DISTRICT JUDGE

App. 50

APPENDIX C

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CITY OF ALBUQUERQUE,

Plaintiff-Appellant,

CAROL BROWNER, or her

successor as Administrator,

United States Environmental

Protection Agency

No. 93-2315

Defendant-Appellee

THE WESTERN COALITION OF

ARID STATES; METROPOLITAN

SEWERAGE AGENCIES; NEW

MEXICO MUNICIPAL LEAGUE,

INC.; NEW MEXICO

ENVIRONMENT DEPARTMENT;

STATE OF NEW MEXICO,

Amici Curiae.

tlt i ee i i a a oe

ORDER

Entered January 7, 1997

Before HENRY and McKAY, Circuit Judges, and

JENKINS*, Senior District Judge.

App. 51

“Honorable Bruce S. Jenkins, Senior District Judge,

United States District Court for the District of Utah, sit-

ting by designation.

This matter comes on for consideration of appellant's

petition for rehearing and suggestion for rehearing en

banc.

Upon consideration whereof, the petition for rehear-

ing is denied by the panel that rendered the decision.

In accordance with Rule 35(b), Federal Rules of

Appellate Procedure, the suggestion for rehearing en

banc was transmitted to all of the judges of the court who

are in regular active service. No member of the panel and

no judge in regular active service on the court having

requested that the court be polled on rehearing in banc,

Rule 35, Federal Rules of Appellate Procedure, the sug-

gestion for rehearing en banc is denied.

Entered for the Court

PATRICK FISHER, Clerk

By: /s/ Audrey F. Weigel

Deputy Clerk

App. 52

APPENDIX D

33 U.S.C. § 1313

(1) The Governor of a State or the State water pollu-

tion control agency of such State shall from time to time

(but at least once each three year period beginning with

October 18, 1972) hold public hearings for the purpose of

reviewing applicable water quality standards and, as

appropriate, modifying and adopting standards. Results

of such review shall be made available to the Administra-

tor.

(2) Whenever the State revises or adopts a new

standard, such revised or new standard shall be submit-

ted to the Administrator. Such revised or new water

quality standard shall consist of the designated uses of

the navigable waters involved and the water quality crite-

ria for such waters based upon such uses. Such standards

shall be such as to protect the public health or welfare,

enhance the quality of water and serve the purposes of

this chapter. Such standards shall be established taking

into consideration their use and value for public water

supplies, propagation of fish and wildlife, recreational

purposes, and agricultural, industrial, and other pur-

poses, and also taking into consideration their use and

value for navigation.

(3) If the Administrator, within sixty days after the

date of submission of the revised or new standard, deter-

mines that such standard meets the requirements of this

chapter, such standard shall thereafter be the water qual-

ity standard for the applicable waters of that State. If the

Administrator determines that any such revised or new

App. 53

standard is not consistent with the applicable require-

ments of this chapter, he shall not later than the ninetieth

day after the date of submission of such standard notify

the State and specify the changes to meet such require-

ments. If such changes are not adopted by the State

within ninety days after the date of notification, the

Administrator shall promulgate such standard pursuant

to paragraph (4) of this subsection.

(4) The Administrator shall promptly prepare and

publish proposed regulations setting forth a revised or

new water quality standard for the navigable waters

involved -

(A) if a revised or new water quality stan-

dard submitted by such State under paragraph

(3) of this subsection for such waters is deter-

mined by the Administrator not to be consistent

with the applicable requirements of this chapter,

(B) in any case where the Administrator

determines that a revised or new standard is

necessary to meet the requirements of this chap-

ter.

The Administrator shall promulgate any revised or new

standard under this paragraph not later than ninety days

after he publishes such proposed standards, unless prior

to such promulgation, such State has adopted a revised or

new water quality standard which the Administrator

determines to be in accordance with this chapter.

App. 54

APPENDIX E

40 C.FR. § 131.7 Dispute resolution mechanism.

(a) Where disputes between States and Indian

Tribes arise as a result of differing water quality stan-

dards on common bodies of water, the lead EPA Regional

Administrator, as determined based upon OMB circular

A-105, snall be responsible for acting in accordance with

the provisions of this section.

(b) The Regional Administrator shall attempt to

resolve such disputes where:

(1) The difference in water quality standards results

in unreasonable consequences;

(2) The dispute is between a State (as defined in

§ 131.3(j) but exclusive of all Indian Tribes) and a Tribe

which EPA has determined qualifies to be treated as a

State for purposes of water quality standards;

(3) A reasonable effort to resolve the dispute with-

out EPA involvement has been made;

(4) The requested relief is consistent with the provi-

sions of the Clean Water Act and other relevant law;

(5) The differing State and Tribal water quality stan-

dards have been adopted pursuant to State and Tribal law

and approved by EPA; and

(6) A valid written request has been submitted by

either the Tribe or the State.

resolve any dispute which satisfies the criteria of para-

graph (b) of this section. Written requests for EPA

DN ty!

Paonia!

‘

App. 55

involvement should be submitted to the lead Regional

Administrator and must include:

(1) A concise statement of the unreasonable conse-

quences that are alleged to have arisen because of differ-

ing water quality standards;

(2) A concise description of the actions which have

been taken to resolve the dispute without EPA involve-

ment;

(3) A concise indication of the water quality stan-

dards provision which has resulted in the alleged unrea-

sonable consequences;

(4) Factual data to support the alleged unreasonable

consequences; and

(5) A statement of the relief sought from the alleged

unreasonable consequences.

(d) Where, in the Regional Administrator's judg-

ment, EPA involvement is appropriate based on the fac-

tors of paragraph (b) of this section, the Regional

Administrator shall, within 30 days, notify the parties in

writing that he/she is initiating an EPA dispute resolu-

tion action and solicit their written response. The

Regional Administrator shall also make reasonable efforts

to ensure that other interested individuals or groups have

notice of this action. Such efforts shall include but not be

limited to the following:

(1) Written notice to responsible Tribal and State

Agencies, and other affected Federal agencies,

(2) Notice to the specific individual or entity that is

alleging that an unreasonable consequence is resulting

ee a ee ae

App. 56

from differing standards having been adopted on a com-

mon body of water,

(3) Public notice in local newspapers, radio, and

television, as appropriate,

(4) Publication in trade journal newsletters, and

(5) Other means as appropriate.

(e) If in accordance with applicable State and Tribal

law an Indian Tribe and State have entered into an agree-

ment that resolves the dispute or establishes a mechanism

for resolving a dispute. EPA shali defer to this agreement

where it is consistent with the Clean Water Act and where

it has been approved by EPA.

(f) EPA dispute resolution actions shall be consis-

tent with one or a combination of the following options:

(1) Mediation. The Regional Administrator may

appoint a mediator to mediate the dispute. Mediators

shall be EPA employees, employees from other Federal

agencies, or other individuals with appropriate qualifica-

tions.

(i) Where the State and Tribe agree to participate in

the dispute resolution process, mediation with the intent

to establish Tribal-State agreements, consistent with

Clean Water Act section 518(d), shall normally be pur-

sued as a first effort.

(ii) Mediators shall act as neutral facilitators whose

function is to encourage communication and negotiation

between all parties to the dispute.

App. 57

(iii) Mediators may establish advisory panels to

consist in part of representatives from the affected par-

ties, to study the problem and recommend an appropriate

solution.

(iv) | The procedure and schedule for mediation of

individual disputes shall be determined by the mediator

in consultation with the parties.

(v) If formal public hearings are held in connection

with the actions taken under this paragraph, Agency

requirements at 40 CFR 25.5 shall be followed.

(2) Arbitration. Where the parties to the dispute

agree to participate in the dispute resolution process, the

Regional Administrator may appoint an arbitrator or

arbitration panel to arbitrate the dispute. Arbitrators and

panel members shall be EPA employees, employees from

other Federal agencies, or other individuals with appro-

priate qualifications. The Regional administrator shall

select as arbitrators and arbitration panel members indi-

viduals who are agreeable to all parties, are knowledge-

able concerning the requirements of the water quality

standards program, have a basic understanding of the

political and economic interests of Tribes and States

involved, and are expected to fulfill the duties fairly and

impartially.

(i) The arbitrator or arbitration panel shall conduct

one or more private or public meetings with the parties

and actively solicit information pertaining to the effects

of differing water quality permit requirements on

upstream and downstream dischargers, comparative risks

to public health and the environment, economic impacts,

present- and historical water uses, the quality of the

App. 58

waters subject to such standards, and other factors rele-

vant to the dispute, such as whether proposed water

quality criteria are more stringent than necessary to sup-

port designated uses, more stringent than natural back-

ground water quality or whether designated uses are

reasonable given natural background water quality.

(ii) Following consideration of relevant factors as

defined in paragraph (f)(2)(i) of this section, the arbitra-

tor or arbitration panel shall have the authority and

responsibility to provide all parties and the Regional

Administrator with a written recommendation for resolu-

tion of the dispute. Arbitration panel recommendations

shall, in general, be reached by majority vote. However,

where the parties agree to binding arbitration, or where

required by the Regional Administrator, recommenda-

tions of such arbitration panels may be unanimous deci-

sions. Where binding or non-binding arbitration panels

cannot reach a unanimous recommendation after a rea-

sonable period of time, the Regional Administrator may

direct the panel to issue a non-binding decision by major-

ity vote.

(iii) The arbitrator or arbitration panel members

may consult with EPA’s Office of General Counsel on

legal issues, but otherwise shall have no ex parte commu-

nications pertaining to the dispute. Federal employees

who are arbitrators or arbitration panel members shall be

neutral and shall not be predisposed for or against the

position of any disputing party based on any Federal

Trust responsibilities which their employers may have

with respect to the Tribe. In addition, arbitrators or arbi-

tration panel members who are Federal employees shall

App. 59

act independently from the normal hierarchy within their

agency.

(iv) The parties are not obligated to abide by the

arbitrator’s or arbitration panel’s recommendation unless

they voluntarily entered into a binding agreement to do

SO.

(v) Ifa party to the dispute believes that the arbitra-

tor or arbitration panel has recommended an action con-

trary to or inconsistent with the Clean Water Act, the

party may appeal the arbitrator’s recommendation to the

Regional Administrator. The request for appeal must be

in writing and must include a description of the statutory

basis for altering the arbitrator’s recommendation.

(vi) The procedure and schedule for arbitration of

individual disputes shall be determined by the arbitrator

or arbitration panel in consultation with parties.

(vii) If formal public hearings are held in connec-

tion with the actions taken under this paragraph, Agency

requirements at 40 CFR 25.5 shall be followed.

(3) Dispute Resolution Default Procedure. Where one

or more parties (as defined in paragraph (g) of this sec-

tion) refuse to participate in either the mediation or arbi-

tration dispute resolution processes, the Regional

Administrator may appoint a single official or panel to

review available information pertaining to the dispute

and to issue a written recommendation for resolving the

dispute. Review officials shall be EPA employees,

employees from other Federal agencies, or other individ-

uals with appropriate qualifications. Review panels shall

include appropriate members to be selected by the

° ‘

App. 60

Regional Administrator in consultation with the partici-

pating parties. Recommendations of such review officials

or panels shall, to the extent possible given the lack of

participation by one or more parties, be reached in a

manner identical to that for arbitration of disputes speci-

fied in paragraphs (f)(2)(i) through (f)(2)(vii) of this sec-

tion.

(g) Definitions. For the purposes of this section:

(1) Dispute Resolution Mechanism means the EPA

mechanism established pursuant to the requirements of

Clean Water Act section 518(e) for resolving unreasonable

consequences that arise as a result of differing water

quality standards that may be set by States and Indian

Tribes located on common bodies of water.

(2) Parties to a State-Tribal dispute include the State

and the Tribe and may, at the discretion of the Regional

Administrator, include an NPDES permittee, citizen, citi-

zen group, Or other affected entity.

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.