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Albuquerque, City of v. Browner

ELR Citation: 27 ELR 20283
Nos. 93-2315, 97 F.3d 415/43 ERC 1276/(10th Cir., 10/07/1996) aff'd

The court upholds the U.S. Environmental Protection Agency's (EPA's) approval of the Pueblo of Isleta's tribal water quality standards under the Federal Water Pollution Control Act (FWPCA). The court first refuses to dismiss this suit and vacate the district court's judgment against Albuquerque, New Mexico. The case is not moot although the city, New Mexico, the Pueblo, and EPA have entered into a settlement agreement whereby they have each agreed to a new four-year national pollutant discharge elimination system (NPDES) permit for the city's waste treatment facility, because the stipulation and agreement is not a final settlement of all claims brought in the city's suit. A live controversy still exists because the parties still disagree about whether EPA's approval of the Pueblo's standards is lawful under the FWPCA and the U.S. Constitution and whether EPA's regulations are consistent with the Act. The court notes that even if this action were moot, it would not vacate the district court's judgment, because the city's motion appears to be merely an attempt to expunge the district court's adverse decision, giving the city the option to relitigate this action at some later date. The court next upholds EPA's interpretation of FWPCA §518 as allowing Native American tribes to establish water-quality standards that are more stringent than those imposed by the federal government. The court finds that Congress' intent on the issue is ambiguous; however, EPA's interpretation is permissible because it is in accord with powers inherent in tribal sovereignty. The court holds that under FWPCA §§301, 401, 402, and 518. EPA has the authority to require upstream NPDES dischargers, such as Albuquerque, to comply with downstream tribal standards. Under the statutory and regulatory scheme, tribes are not applying or enforcing their water quality standards beyond reservation boundaries, which the city alleges §518 does not permit. Instead, it is EPA that is exercising its own authority in issuing NPDES permits in compliance with downstream standards. The court next holds that EPA did not fail to comply with the procedural requirements of the Administrative Procedure Act (APA) in approving the Pueblo's standards, because the notice-and-comment requirements of the APA are satisfied by the FWPCA's procedural scheme, which EPA has reasonably implemented. The intent of Congress was to require states or tribes to provide for public participation in the adoption of water quality standards, and in this case, the Pueblo provided a full and fair opportunity for public notice, comment, and hearing.

Turning to the basis for the standards, the court holds the city has not shown that EPA failed to consider an important aspect of the Pueblo's standards in approving them. The court also declines to second-guess EPA's technical determination, which is entitled to substantial deference, that the Pueblo's water quality criteria adequately protect its ceremonial designated use standard. The court next holds that EPA's establishment of a dispute-resolution mechanism that relies on tribal and state cooperation to address unreasonable consequences, but does not allow any other parties to initiate the process, is a reasonable interpretation of §518(e) and is entitled to deference. The court further holds that EPA's approval of the Pueblo's ceremonial use designation does not violate the Establishment Clause of the First Amendment of the U.S. Constitution. The purpose and effect of the approval was to further the goals of the FWPCA, not to advance religion, and excessive governmental entanglement with religion will not result when EPA incorporates the Pueblo's water quality standards in issuing future NPDES permits. Finally, the court holds that the Pueblo's standards are not unconstitutionally vague. Although EPA regulations allow water-quality standards to be narrative descriptions, these standards do not require any particular conduct by the city. Instead, the city is on notice that its revised NPDES permit may contain the specific standards that must be satisfied, and an administrative procedure is in place through which it will have notice of the specific enforceable standards that it must meet.

[The district court opinion is published at 25 ELR 20422. Briefs in this decision are digested at ELR BRIEFS & PLEADS, 66431.]

Counsel for Plaintiff
Bruce S. Garber
Garber & Hallmark
200 W. Marcy, Ste. 203, Santa Fe NM 87504
(505) 983-3233

Counsel for Defendant
Elizabeth A. Peterson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before HENRY and McKAY, Circuit Judges, and JENKINS,* Senior District Judge.