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Akiak Native Community v. Environmental Protection Agency

ELR Citation: 40 ELR 20010
Nos. 08-74872, (9th Cir., 11/04/2010)

The Ninth Circuit held that EPA’s decision to transfer authority over portions of the NPDES program to the state of Alaska was not arbitrary or capricious. Petitioners argued that EPA did not adequately ensure that Alaska state law will provide the same opportunities for judicial review of permitting decisions as required by federal law. The state of Alaska's proposed program, though perhaps not subject to exactly the same opportunity for judicial review that is available for a federally issued permit, still provides for meaningful public participation in the permitting process, and petitioners failed to demonstrate that there will be an inadequate opportunity for public participation if the state assumes the responsibility for the relevant portions of the NPDES program. The petitioners also claimed that the state does not have the necessary enforcement tools to abate permit violations. But because Alaska law allows the state to sue permit violators, there is no reason to conclude that the state lacks adequate enforcement remedies. Petitioners further claimed that the Agency failed to ensure that subsistence resources will be protected as mandated by the Alaskan National Interest Lands Conservation Act (ANILCA). But EPA's transfer of the NPDES program to the state of Alaska does not trigger a subsistence evaluation under ANILCA since EPA does not have primary jurisdiction over public lands in Alaska.