# Petition for Writ of Certiorari — City of Albuquerque v. Browner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0533%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 522 U.S. 965 ## Text (\) 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 S 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? — il 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 iv 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 V 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 vi 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; (C) in excess of statutory jurisdiction, 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 4 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. VC 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; (C) in excess of Statutory jurisdiction, author- 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. 10 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 11 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 12 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. 13 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. 14 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: 15 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 / 16 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: a 17 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. 18 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 19 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 , 20 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 21 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 22 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. 23 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, v. 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 © Albuquerque’s suit names only the EPA as a defendant. 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 ee 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. ee 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 a App. 50 APPENDIX C UNITED STATES COURT OF APPEALS TENTH CIRCUIT CITY OF ALBUQUERQUE, Plaintiff-Appellant, v. CAROL BROWNER, or her successor as Administrator, United States Environmental Protection Agency No. 93-2315 Defendant-Appellee 7 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 a “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 (c) Review; revised standards; publication (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, or (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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0533%3A1. Public record. Not legal advice.