No. 96-1587

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

 CITY OF  ALBUQUERQUE, PETITIONER

v.

CAROL M. BROWNER, ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH  CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION
WALTER DELLINGER
Acting Solicitor General

LOIS J. SCHIFFER
Assistant Attorney General

JAMES C. KILBOURNE
DAVID C. SHILTON
ELIZABETH A. PETERSON
Attorneys

Department of Justice 
Washington, D.C. 20530-0001
(202) 514-2217


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 QUESTIONS PRESENTED

1. Whether the Environmental Protection Agency
(EPA) has reasonably construed the Clean Water Act
to permit Indian Tribes that are treated in the same
manner as States under the Act to adopt water qual-
ity standards that are more stringent than federal
water quality standards, without requiring a showing
of the scientific basis supporting the more stringent
tribal standards.
2. Whether EPA's approval of the Islets Pueblo's
water quality standards for ceremonial use violated
the Establishment Clause of the First Amendment.
3. Whether EPA regulations providing that States
and Tribes, but not holders of discharge permits, may
seek EPA assistance in resolving disputes arising
from their differing water quality requirements rest
on a reasonable interpretation of the Clean Water
Act.

(I)

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TABLE OF CONTENTS

                   Page

Opinions below  . . . .   1
Jurisdiction  . . . .   1
Statement  . . . .   2
Argument  . . . .  11
Conclusion  . . . .  19

TABLE OF AUTHORITIES

Cases:

Arkansas v. Oklahoma, 503 U. S. 91(1992)  . . . . 2, 3, 4, 15
California v. Cabazon Band of Mission Indians,
430 Us. 202 (1987)  . . . .  5
Chew-on U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984)  . . . .  7
Corporation of Presiding Bishop v. Amos,
483 U.S. 327 (1987)  . . . .  16
EPA v. California ex rel. State Water Resources
Control Bd., 426 U.S. 200 (1976) . . . . 3, 4
Lemon v. Kurtzman, 403 U.S. 602 (1971)  . . . . 15, 16
National Wildlife Fed'n v. Gorsuch, 693 F.2d
156 (D,C. Cir. 1982)  . . . .  15
Ramah Navajo School Bd., Inc. v. Bureau of
Revenue, 458 U.S. 832 (1982)  . . . .  14
Thomas Jefferson Univ. v. Shalala, 512 U.S.
504 (1994) . . . . 12
United States v. Mazurie, 419 U.S. 544 (1975)  . . . .  14
United States Steel Corp. v. Train, 556 F.2d
822 (7th Cir. 1977)  . . . .  3
Constitution, statutes and regulations:

U.S. Const. Amend. I (Establishment Clause)  . . . . 10, 15
Clean Water Act, 33 U.S.C. 1251 et seq . . . .  2
33 U.S.C. 1251(a)  . . . .  2
33 U.S.C. 1251(a)(2)  . . . . 3, 12
33 U.S.C. 1251(b)  . . . . 2, 11

(III)

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Iv

Statutes and regulations Continued:       Page

33 U.S.C. 1253(a)  . . . .  17
33 U.s.c. 1311  . . . .  2
33 USC. 1313  . . . .  2
33 U.s.c. 1313(C)  . . . . 3, 12
33 US.C, 1313(c) (12)(A)  . . . .  3
33 U.S.C  1313(C)(3)  . . . .  3
33 U.s.c. 1313(C)(4)(A)  . . . .  3
33 U.S.C. 1342  . . . . 2,4
33 U.S.C. 1342(a)(l)  . . . .  4
33 U.S.C. 1370 . . . . 2, 3, 7, 8, 11, 13
33 U. S.C. 1377(e) . . . . 2, 5, 7, 8, 9, 10, 13, 14, 15

40 C.F.R.:

Section 122.4(d)  . . . . 4
Section 131.4(a)  . . . . 3
Section 131.5(a)(4)  . . . .4, 12 
Section 131.6(f)  . . . . 12
Section 131.7(a)  . . . . 5-6
Section 131.7(c) . . . . 5-6 
Section 131.7(d)  . . . . 6, 19
Section 131.7(f)  . . . . 6
Section 131.7(g)  . . . . 6
Section 131.7(g)(2)  . . . . 19
Section 131.1O(N  . . . . 12
Section 131.11  . . . .12
  
Miscellaneous:

118 Cbng. Rec, 33,693 (1972)  . . . .15 
133 Cong. Rec. (1987):
p. 1000  . . . . 18
p. 1282  . . . . 18
p. 1533  . . . . 5
48 Fed. Reg. (1983):
p. 51,401  . . . .4 
p. 51,409  . . . . 4, 13
56 Fed. Reg. (1991):
p. 64,876  . . . . 5
p. 64,886  . . . . 16


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In the Supreme Court of the United States

      OCTOBER TERM, 1996

No. 96-1587

CITY OF ALBUQUERQUE, PETITIONER

v.

CAROL M. BROWNER, ADMINISTRATOR, UNITED STATES
   ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
   FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

      OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-32)
is reported at 97 F.3d 415. The opinion of the district
court (Pet. App. 33-49) is reported at 865 F. Supp. 733.

       JURISDICTION

The judgment of the court of appeals was entered on
October 7, 1996. A petition for rehearing was denied
on January 7, 1997. Pet. App. 50-51. The petition for
a writ of certiorari was filed on April 7, 1997. The
jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

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2

       STATEMENT

1. The Clean Water Act (CWA or Act),33U.S.
1251 et seq., is a comprehensive statute designed "to
restore and maintain the chemical, physical, and
biological integrity of the Nation's waters" through
the reduction and eventual elimination of the dis-
charge of pollutants into those waters. 33 U.S.C.
1251(a). To achieve those goals, the CWA establishes
a partnership between the federal government and
the States, in which the States have the "primary
responsibilities and rights" to abate water pollution.
33 U.S.C. 1251(b); see 33 U.S.C. 1370; Arkansas v.
Oklahoma, 503 U.S. 91, 101 (1992).
The Act provides for two kinds of pollution control
requirements: technology-based requirements and
water quality-based requirements. Technology-based
requirements are based on the capability of existing
pollution control technologies to remove particular
substances from wastewater. Effluent limitations,
reflecting technology-based requirements that re-
strict the quantities, rates, and concentrations of
specified substances that may be discharged into
waters from point sources, may be established by the
Environmental Protection Agency (EPA), a State, or
an authorized Indian Tribe. See 33 U.S.C. 1311, 1342,
1377(e).
Water quality standards are generally set by
individual States or authorized Indian Tribes. 33
U.S.C. 1313. Water quality standards operate by
giving content to the desired condition of a particular
waterway. State water quality standards are used to
set additional effluent limitations supplementary to
federal technology-based requirements, "so that nu-
merous point sources, despite individual compliance

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with [technology-based] 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).
The CWA expressly preserves States' authority
to establish requirements more stringent than re-
quirements established by EPA. 33 U.S.C. 1370; see
Arkansas v. Oklahoma, 503 U.S. at 107; 40 C.F.R.
131.4(a). In setting water quality standards, the
States "are free to force technology" and are free to
adopt stringent standards "even at the cost of eco-
nomic and social dislocations." United States Steel
Corp. v. Train, 556 F.2d 822,838 (7th Cir. 1977).
The CWA requires each State to adopt water qual-
ity standards for all waters of the State, and to sub-
mit those standards to EPA for approval. 33 U.S.C.
1313(c). States must specify one or more designated
"uses" of each waterway (e.g., public water supply,
recreation, fish propagation, or agriculture) and must
establish water quality standards based on those
uses. 33 U.S.C. 1313(c)(2)(A). EPA reviews all new
or revised state water quality standards for consis-
tency with the requirements of the Act. 33 U.S.C.
1313(c)(3). If a state standard does not meet minimum
federal requirements, then it must be disapproved by
EPA. The State may then adopt changes suggested
by EPA, or, failing such action, EPA must itself issue
a water quality standard for the State. 33 U.S. C.
1313(c)(3) and (4)(A).
The CWA sets forth certain water uses as baseline
concerns of the Act-principally fishing and swim-
ming. See 33 U.S.C. 1251(a)(2). If a State designates
a waterway for uses that do not include all those uses,
then the State must submit "technical and scientific

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data and analyses" to demonstrate why the omitted
uses are not attainable. 40 C.F.R. 131.5(a)(4); see 48
Fed. Reg. 51,401, 512409 (1983). The CWA does not,
however, authorize or require EPA to review or dis-
approve a State's designation of uses or water qual-
ity criteria solely on the ground that they are too
stringent. Therefore, no submission of scientific data
is required to justify the State's adoption of standards
that exceed federal requirements.
Both technology-based standards and water
quality-based standards are applied through a permit
process. The Act prohibits the "discharge of any pol-
lutant" into the nation's waters except as author-
ized by a National Pollutant Discharge Elimination
System (NPDES) permit. 33 U.S.C. 1342; see EPA
v. California, 426 U.S. at 205, All NPDES permits
must include effluent limitations (i.e., restrictions on
qualities, rates, and concentrations of discharged
pollutants) that require the permittee's adherence to
federal technology-based limitations and, where appli-
cable, more stringent water quality-based limitations
designed to ensure that the receiving waters attain
and maintain state water quality standards. See 33
U.S.C. l342(a](l); 40 C.F.R. 122.4(d); Arkansas v.
Oklahoma, 503 U.S. at 104-107. EPA regulations pro-
vide that a NPDES permit shall not be issued" [w]hen
the imposition of condition cannot ensure compliance
with the applicable water quality requirements of all
affected States." 40 C.F.R. 122,4(d) (emphasis added).
Thus, any NPDES permit issued to a discharger in
an upstream State must include limitations neces-
sary to comply with the water quality standards of
downstream States; Arkansas v. Oklahoma, 503
U.S. at 107.

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2. Federal law generally prohibits States from
exercising regulatory authority on Indian lands,
except as authorized by Congress. See California v.
Cabazon Band of Mission Indians, 480 U.S. 202,216
& n.18 (1987). As originally enacted, the CWA did not
specifically identify any governmental entity with
authority to set standards for waters on Indian lands
within States. Congress amended the CWA in 1987 to
provide that EPA may treat qualifying Tribes in the
same manner as States for the purpose of, inter alia,
setting water quality standards on waters within
their lands. 33 U.S.C. 1377(e). By amending the stat-
ute in that manner, Congress "assure[d] that Indian
tribes would be able to exercise the same regulatory
jurisdiction over water quality matters with regard
to waters within Indian jurisdiction that States have
been exercising over their water." 133 Cong. Rec.
1583 (1987) (statement of Sen. Burdick). Congress
also required, in the 1987 amendments, that the Ad-
ministrator "provide a mechanism 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." 33 U.S.C. 1377(e).
3. In 1991, EPA promulgated regulations for the
treatment of Indian Tribes in the same manner as
States, as required by the CWA. 56 Fed. Reg. 64,876.
The regulations establish the procedures by which
Indian Tribes may apply for treatment in the same
manner as States for purposes of the water quality
standards program. The regulations also provide
that, in the event of a dispute between a Tribe and a
State about differing water quality standards on the
same body of water, either the Tribe or the State
may request that EPA resolve the dispute. 40

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C.F.R. 131.7(a) and (c). Upon such a request, EPA
may initiate mediation or arbitration to resolve the
dispute, or may appoint a person or panel to recom-
mend a resolution of the dispute. 40 C.F.R. 131.7(f).
Interested parties other than the State or the Tribe,
including NPDES `permitters, may be invited to
participate in the dispute-resolution process, see 40
C.F.R. 131.7(d) and (g), but they are not authorized to
initiate the process themselves.
The Pueblo of Isleta was the first Indian Tribe to
obtain approval from EPA to be treated in the same
manner as a State for purposes of the water quality
standards program. The Pueblo submitted an applica-
tion for treatment in the same manner as a Mate on
February 13, 1992, The Pueblo also submitted its
water quality standards for approval. After consult-
ing with other affected governments and considering
comments submitted by various interested parties,
including petitioner; EPA approved the Pueblo's re-
quest to be treated in the same manner as a State for
water quality standards purposes on October 13, 1992.
See Gov't C.A. Br. 14.
EPA then reviewed the Tribe's water quality
standards. EPA requested clarification of certain
provisions of the standards, and made recommenda-
tions regarding the stringency of certain water qual-
ity criteria. The Pueblo provided a detailed response
to EPA's recommendations, adopting some of EPA's
recommendations and setting forth its reasons for
choosing not to adopt others. After reviewing the
Pueblo's response, EPA determined that the Pueblo's
standards satisfied all applicable substantive and
procedural requirements and should be approved. In
doing so, EPA expressly noted that the CWA allows
a State (and a Tribe treated in the same manner as a

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State) to adopt water quality standards that are more
stringent than EPA's recommended criteria. Gov't
C.A. Br. 15.
4. Petitioner is an NPDES permittee upstream of
the Pueblo's tribal lands on the Rio Grande River.
Under the CWA, as interpreted by EPA, petitioner's
NPDES permit must ensure that its discharges into
the Rio Grande comply with the water quality stan-
dards of all affected downstream States (and author-
ized Tribes). In 1993, petitioner filed suit in district
court, challenging EPA's approval of the Tribe's
water quality standards. The district court granted
summary judgment to EPA, Pet, App. 33-49, and the
court of appeals affirmed, id. at 1-32.
The court of appeals concluded that, under the
CWA, EPA may treat Tribes' water quality standards
as equivalent to state standards-and, in particular,
may permit Tribes' standards to exceed federal
standards-and may thus require permitters in up-
stream States to avoid violations of more stringent
water quality standards of downstream Tribes as well
as States. The court found Congress's intent to be
"unclear and ambiguous" on the point, but it con-
cluded that EPA's construction of 33 U. S. Cl. 1377(e) to
treat Tribes' water quality standards as functionally
equivalent to those of States is reasonable, and there-
fore entitled to deference under Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S.
837,842-843 (1984).
The court noted that, in EPA's letter approving
the Pueblo's water quality standards, EPA cited
33 U.S.C. 1370 as the basis for the Pueblo's authority
to set water quality standards that are more strin-

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gent than those recommen ded by EPA.1 The court
also noted that Section 1377{e), which authorizes
EPA to treat Tribes in the same manner as States for
certain express purposes, does not incorporate Sec-
tion 1370 as one of the statutory bases for EPA's
treatment of Tribes as equivalent to States.2 None-
theless, the court concluded that EPA is author-
ized to allow Tribes' standards to exceed federal stan-
dards, since EPA "construes par 1370 as a savings
clause that merely recognizes powers already held by
the states. Thus, Congress's failure to incorporate
par 1370 into par 1377 does not prevent Indian tribes from
exercising their inherent sovereign power to adopt
standards or limits that are more stringent than
those imposed by the federal government. Indian
tribes have residual sovereign powers that already

___________________(footnotes)

1 Section 1370 provides, in pertinent part:

[N]othing in this chapter shaIl (1) preclude or deny the
right of any State * * * to adopt or enforce (A) any
standard or limitation respecting discharges of pol-
lutants * * * ; except that if an effluent limitation, or
other limitation, effluent standard, prohibition, pretreat-
ment standard, or standard of performance is in effect
under this chapter, such State * * * 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 stan-
dard, prohibition, pretreatment standard, or standard of
performance under this chapter.

2 Section 1377(e) provides, in pertinent part: "The Admin-
istrator is authorized to treat an Indian tribe as a State for
purposes of subchapter II of this chapter and sections l264,
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."

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guarantee the powers enumerated in $1370, absent an
express statutory elimination of those powers." Pet.
App. 16-17.
The court rejected petitioner's argument that EPA
had impermissibly allowed the Tribe to apply its
water quality standards to an upstream source out-
side tribal boundaries. The court noted that, " [u]nder
the statutory and regulatory scheme, tribes are not
applying or enforcing their water quality standards
beyond reservation boundaries. Instead, it is the EPA
which is exercising its own authority in issuing
NPDES permits in compliance with downstream
state and tribal water quality standards." Pet, App.
18 (footnote omitted). The court found that "the 1987
amendment to the [CWA] clearly and unambiguously
provides tribes the authority to establish NPDES
programs in conjunction with the EPA," and that
EPA therefore "has the authority to require up-
stream NPDES dischargers, such as [petitioner], to
comply with downstream tribal standards." Ibid.
The court further rejected petitioner's contention
that EPA's approval of the Pueblo's standards was
arbitrary and capricious.  Petitioner argued that
EPA was obliged to reject the Pueblo's standards
unless the record before EPA established a sound
scientific basis for the standards. The court con-
cluded, to the contrary, that if a State's or a Tribe's
standards are at least as stringent as EPA's recom-
mended standards, then EPA "may approve the stan-
dards without reviewing the scientific support for the
standards," for States (and Tribes treated in the same
manner as States) may force technological advance-
ment to attain higher water quality. Pet. App. 24.
The court also rejected petitioner's argument that
the process set up by EPA under Section 1377(e) for

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resolution of disputes between States and Tribes was
insufficient because it was nonbinding and because it
failed to offer parties other than States and Tribes
the opportunity to initiate the process. The court
noted that Section 1377(e) "does not specify how or
by whom the dispute resolution mechanism shall be
initiated." Pet. App. 27. It also noted that Congress's
establishment of the dispute-resolution process
stemmed from the possibility that two sovereigns-a
State and a Tribe-might come into conflict over
differing water quality standards. "It is reasonable,
therefore, to allow only those two sovereigns to initi-
ate the dispute resolution process to resolve their
differences." Id. at 28.
Finally, the court found no merit in petitioner's
claim that EPA's approval of the Tribe's water qual-
ity standards violated the Establishment Clause.
Petitioner emphasized that the Pueblo had designated
ceremonial uses (including immersion and ingestion
of water) as one of the designated uses of the Rio
Grande River within tribal lands, and argued that
EPA's approval of ceremonial religious uses of the
River violated the First Amendment. The court con-
cluded, however, that EPA's approval of the Pueblo's
ceremonial use designation "serves a clear secular
purpose: promotion of the goals of the [CWA]. The
EPA's purpose in approving the designated use is
unrelated to the Islets Pueblo's religious reason for
establishing it." Pet. App. 29-30. The court also con-
cluded that EPA's action did not have the primary
effect of advancing religion, since "EPA is not ad-
vancing religion through its own actions, and it is not
promoting the Islets Pueblo's religion. The primary
effect of the EPA's action is to advance the goals of
the [CWA] "  Id. at 30.  And  it found no undue en-

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tanglement between the government and religion
based on EPA's approval of the Tribe's standards, as
the approval "does not require any governmental
involvement in the [Tribe's] religious practices." Id.
at 30-31.

       ARGUMENT

1. a. Petitioner argues (Pet. 9-12) that EPA's ac-
tion in approving the Islets Pueblo's water quality
standards was arbitrary and capricious because EPA
failed to determine that those standards were sup-
ported by a "sound, scientific rationale." That argu-
ment misapprehends the role of EPA under the CWA
in reviewing the water quality standards of States
and Tribes. EPA has consistently interpreted the
CWA, especially 33 U.S.C. 1370, as preserving States'
and Tribes' sovereign authority to regulate water
quality on their lands, as long as their water quality
standards are at least as stringent as the require-
ments of federal law. States and Tribes may there-
fore regulate water quality more strictly than does
the federal government, and EPA does not second-
guess their decision to do so.
The CWA expressly recognizes "the primary re-
sponsibilities and rights of States to prevent, reduce,
and eliminate pollution." 33 U.S.C. 1251(b). It also
expressly preserves the authority of the States to
establish water quality standards that are at least as
stringent as federal requirements. 33 U.S.C. 1370.
Those provisions make clear that the CWA does not
occupy the field of regulation of water pollution and
leaves the States free, consistent with our structure
of dual sovereignty, to enact stricter regulation as
long as that regulation does not conflict with federal
law.

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Under the CWA, EPA does review state water
quality standards to determine if they meet federal
requirements. 33 U.S.C. 1313(c). Consistent with the
preservation of state authority in the CWA, however,
EPA does not, review the justification for state stan-
dards that exceed federal requirements. The court of
appeals therefore correctly concluded (Pet. App. 24)
that EPA may approve state (and tribal) standards
without reviewing the scientific support for the ex-
tent to which they exceed federal requirements.
Petitioner places reliance on 40 C.F.R. 131.11,
which provides that States' criteria for protecting
designated uses must be based cm "sound scientific
rationale." That regulation, however, requires only
that States demonstrate that they will meet minimum
federal standards. EPA has not construed that regu-
lation to require that States additionally justify a
decision to impose water quality standards that are
stricter than federal requirements. EPA's interpre-
tation of its own regulations is entitled to substantial
deference. Thomas Jefferson Univ. v. Shalala, 512
U.S. 504, 512 (1994). Moreover, that regulation on
which petitioner relies must be read in tandem with
other EPA regulations, such as 40 C.F.I. 131.10(k),
which make clear that a State need not conduct a
"use attainability analysis" whenever it undertakes
to protect all the designated uses for waters set
forth in 33 U.S.C. 1251(a)(2)-the so-called "fishable/
swimmable" standard.3 Thus, when a State decides to
  
___________________(footnotes)

 3 EPA's regulations require EPA to determine whether a
State's standards are based upon appropriate technical and
scientific data only when the State's standards do not include
all the uses listed under Section 1251(a)(2). See 40 C.F.R.
131.5(a)(4), 131.6(f). In that situation, the State must submit a

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impose water quality standards that are more strin-
gent than federal requirements, it need not demon-
strate to EPA that the standards are technologically
attainable.
b. EPA has also reasonably concluded that the
accommodation of States' sovereign authority in the
CWA extends also to the authority of Indian Tribes.
Section 1377(e) directs the Administrator to treat
qualifying Tribes in the same manner as States for
the purposes of certain, enumerated provisions of
the CWA. Petitioner argues that, because Section
1370-which recognizes the authority of States to set
water quality standards more stringent than federal
requirements-is not one of the provisions specifi-
cally enumerated in Section 1377(e), Congress did not
intend to preserve Tribes' authority to set more
stringent standards. That argument misapprehends
the purpose of Section 1370. Unlike the provisions
enumerated in Section 1377(e), which set forth
specific roles for States and Tribes in the federal
regulatory scheme, Section 1370 merely clarifies that
Congress has not occupied the field of water pollution,
and that preexisting state authority is preserved by
the CWA, as long as state standards are at least as
stringent as those required by the CWA. Because
Section 1370 confers no new authority on States, but
instead merely clarifIes that existing state authority
is preserved, its absence from the sections mentioned
in Section 1377(e) does not prevent the Administrator
from recognizing Tribes' similar authority to regu-
late water quality standards.

___________________(footnotes)

use attainability analysis, explaining why certain uses are not
reasonably attainable. See 48 Fed. Reg 51.409 (1983).

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does not impermissible extend tribal authority be-
yond tribal boundaries. The Pueblo's standards apply
only to waters within its boundaries: it is EPA that
has required NPDES permits issued in upstream
States to include effluent limitations necessary to
meet those standards, See Arkansas v. Oklahoma,
503 U.S. 91, 102-107 (1992). Just as a downstream
State has no inherent authority to establish regula-
tory requirements for dischargers in an upstream
State, a Tribe may not establish requirements for off-
reservation water users. This Court, however, has
upheld EPA's interpretation of the Act to require
upstream dischargers to comply with the standards of
downstream States. Id. at 107. EPA has concluded
that, consistent with Section 1377(e), upstream point
sources should comply with the standards of down-
stream qualifying Tribes as well as States. That con-
clusion conforms to Congress's intent that Tribes
should be allowed to exercise authority under the Act
similar to that of States.
2. Petitioner argues (Pet. 14-18) that EPA's ap-
proval of the Pueblo's water quality standard for
"primary contact ceremonial use," which the Tribe
defines as use for "religious or traditional purposes,"
offends the Establishment Clause. The court of ap-
peals correctly held, however, that EPA's action
satisfies all three prongs of the Establishment Clause
test in Lemon v. Kurtzman, 403 U.S. 602 (1971).
First, EPA's action has a clear secular purpose:
promoting the goals of the Clean Water Act. The ulti-
mate goal of the CWA is "zero discharge of pollut-
ants" (see National Wildlife Fed`n v. Gorsuch, 693
F.2d 156, 179 (D.C. Cir. 1982) (citing 118 Cong. Rec.
33,693 (1972)), and EPA's approval of stringent water
quality standards promotes that secular goal, even if

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the Tribe has some religious motivation for adopting
those stringent standards. The fact that the Pueblo
may have its own religious reasons for desiring clean
water is irrelevant to the secular purpose underlying
EPA's decision to approve the standards, for, as ex-
plained above, EPA. was not called upon to examine
the scientific support for the Tribe's water quality
standards, which are more stringent than federal
requirements.
The second Lemon requirement is that the action
must have a "principal or primary effect * * * that
neither advances nor inhibits religion." 403 U.S. at
612. The primary effect of EPA's approval of the
Tribe's water quality standards is to reduce pollution
in the Rio Grande River, not to advance tribal reli-
gion. Indeed, only the former effect, and not the lat-
ter, is relevant to the exercise of EPA's statutory
authority. Furthermore, " [f]or a law to have forbid-
den `effects' under Lemon, it must be fair to say that
the government itself has advanced religion through
its own activities and influence."  Corporation of
Presiding Bishop v. Amos, 483 U.S. 327, 337 (1987).
Hence, even if EPA's approval of the Pueblo's desig-
nated use has the incidental effect of permitting the
Pueblo to continue its religious use of the water, that
approval is not the same as "an unlawful fostering of
religion" by EPA, see id. at 334-335.
The third Lemon requirement-that the govern-
ment action not cause an "excessive entanglement"
between the government and the religious entity-is
also satisfied. EPA's approval of the Pueblo's more
stringent water quality standards does not require
any governmental involvement in the Pueblo's reli-
gious practices. Since EPA does not examine the
scientific basis for the Tribe's water quality stan-

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dards, it does not consider whether those standards
are (or are not) in fact required to permit tribal
ceremonies to go forward with the necessary degree
of water purity.
3. Petitioner argues (Pet. 18-22) that the mecha-
nism established by EPA to resolve disputes between
States and Tribes over water quality standards does
not satisfy requirements of the CWA. Petitioner con-
tends that EPA has violated the statute by establish-
ing a dispute resolution mechanism that relies on
nonbinding mechanisms such as mediation and arbi-
tration, and that denies permitters, such as itself, the
right to initiate dispute resolution. Those claims are
without merit.
First, EPA properly adopted a dispute-resolution
process that relies on mediation and arbitration.
Those methods are consistent with the CWA'S pres-
ervation of state authority to adopt more stringent
requirements than those of EPA, and the Act's re-
quirement that EPA encourage cooperative activities
by the States (see 33 U.S.C. 1253(a)). EPA chose me-
diation and arbitration because it recognized that the
authority to alter substantive water quality stan-
dards that are consistent with the requirements of
the Act resides in States and Tribes, not EPA. 56
Fed. Reg. 64,886 (1991). For EPA itself to resolve
differences between a Tribe and a State, it would have
to disapprove either the Tribe's or the State's stan-
dards, or both, on the basis that they are too strin-
gent, and issue federal standards in their place. In
effect, therefore, petitioner argues that, when Tribes
and States disagree, Congress has authorized EPA to
preempt the authority otherwise reserved by them.
EPA has not purported to exercise such authority,

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and petitioner's argument finds no basis in the text of
the CWA.4
Second, EPA reasonably limited initiation of the
dispute resolution process to Tribes and States. The
need for dispute resolution arises from the possibility
that differing standards may result in the inability of
one sovereign to exercise its authority fully because
of the actions of another sovereign (as, for example,
when a downstream State or Tribe wishes to impose
significantly more stringent standards than those in
an upstream State). The purpose of the process is
to resolve disputes between the sovereigns in such
situations. Since only Tribes and States have the
sovereign authority to alter water quality standards
in order to resolve any unreasonable consequences
from differing sovereign standards, EPA reasonably
limited initiation of the process to those entities,
EPA did, however, recognize that interested parties
such as petitioner might be affected when Tribes
and States set differing water quality standards on

___________________(footnotes)

4 The legislative history of the CWA also indicates that
Congress did not intend EPA to overrule the decision of a
Tribe or a State to establish water quality 8tandards on a
common water body. A memorandum prepared by the Senate
Select Committee for Indian Affairs, observing that "there is
nothing in the [then] existing [Clean Water] Act or in the [then]
proposed amendments which gives EPA the power to force one
state to change its approved water quality standards * * * in
order to accommodate the water quality needs of another state
or states," was cited with approval in floor debates in both the
House and Senate on the 1987 CWA amendments. 133 Cong.
Rec. 1282 (1987) (statement of Sen. Baucus); id. at 1000 (state-
ment of Rep. Morrison). The same memorandum also observes
that the proposed dispute resolution mechanism would not give
EPA the authority to force changes in state water quality
standards. Id. at 1000, 1282.

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common water bodies, and its regulations therefore
authorize the EPA Regional Administrator to invite
or allow such affected parties to participate in the
dispute resolution process. 40 C.F.R. 131.7(d) and
(g)(2).

     CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

LOIS J. SCHIFFER
Assistant Attorney General

JAMES C. KILBOURNE
DAVID C. SHILTON
ELIZABETH A. PETERSON
Attorneys

JUNE 1997

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