ELR Citation: ELR 20422
No(s). 93-82-M (D.N.M. Oct 21, 1993)

The court upholds the U.S. Environmental Protection Agency's (EPA's) treatment of a Native American tribe as a state for purposes of setting water quality standards that apply to part of the Rio Grande River and are more stringent than the state or federal standards. The Pueblo's water quality standards apply to that part of the Rio Grande River flowing through it. The court first holds that EPA did not violate the Administrative Procedure Act (APA) §553 by not providing a notice-and-comment period before approving water quality standards that the Pueblo developed. The Federal Water Pollution Control Act (FWPCA) requires that both EPA and states adopting or revising any water quality standard must provide notice and opportunity for a public hearing. If Congress wanted EPA to provide additional notice when approving state standards, it could have included that language in FWPCA §303(c)(1). Further, in deciding whether to accept or reject a state's or tribe's proposed standard, EPA reviews all comments submitted to a state or a tribe during the comment period, and all of the comments become part of the administrative record. Requiring EPA to hold an additional comment period serves no purpose, and FWPCA's 60-day time frame for EPA to approve state standards precludes holding another notice-and-comment period.

The court holds that EPA properly recognized the Pueblo's authority to develop water quality standards more stringent than federal standards. Section 518 authorizes EPA to treat tribes as states and §510 preserves a state's right to impose standards or limits more stringent than EPA-imposed standards. The court rejects the city's reading of §518 that §510 is not applicable to Native American tribes. The city's construction makes §518 meaningless and conflicts with EPA's stated policy on Native American tribes and with general principles of federal Native American law.

The court holds that EPA's regulations establishing the mechanism §518(e) requires to resolve unreasonable consequences are not arbitrary or capricious under APA §706(2), because EPA developed the mechanism after carefully considering all relevant factors. The court rejects the city's argument that the Pueblo's ceremonial use standard EPA approved should be at least as stringent as Safe Drinking Water Act §300f standards, because none of the comments recorded in the administrative record, including those the city made, cautioned the Pueblo or EPA that the standards were not stringent enough. The ceremonial use standard resembles a fishable/swimmable standard, which assumes ingestion of some water, more than it resembles a §300f standard, which assumes the ingestion of a volume of water daily.

The court holds that EPA's recognition and approval of the Pueblo's ceremonial use standard did not violate the U.S. Constitution's Establishment Clause, because the primary purpose of the designated uses is to support FWPCA's goals. In addition, the Pueblo's designation of a ceremonial use does not invalidate the overall secular goal of reducing and eventually eliminating the discharge of pollutants into the nation's waters. No excessive entanglement exists between the government and religion because EPA's actions are not advancing or promoting the Pueblo's religion. The court also holds that the standards are not unconstitutionally vague, because 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 national pollutant discharge elimination system permit.

The court upholds EPA's approval of water quality standards the Pueblo set, even though the city claims, and EPA has not disputed, that the Pueblo's standards are unobtainable. The administrative record shows that EPA and the Pueblo conferred extensively about the proposed standards' technical aspects. The Pueblo provided, to EPA's satisfaction, the technical basis for the standards and cogent reasons for retaining more stringent standards. Finally, the court holds that EPA's approval of the Pueblo's water quality standards was neither arbitrary, capricious, nor an abuse of discretion under APA §706(2), because the Agency adequately supported its decisionmaking process, followed the necessary procedural steps in accepting the Pueblo's proposed standards, and made its decision after considering all the relevant factors. EPA acted in accordance with the law, and substantial evidence in the administrative record supports its decision.

Counsel for Plaintiff
Bruce C. Garber
Garber & Hallmark
200 N. Marcy, Ste. 203, P.O. Box 850, Santa FE NM 87504
(505) 983-3233

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

Randolph L. Hill
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090