Seneca Nation of Indians 

President - Barry E. Snyder, Sr. 

Clerk - Geraldine Huff 

12837 ROUTE 438 

CATTARAUGUS TERRITORY 

SENECA NATION 

IRVING 14081 

Tel. (716) 532-4900 

FAX (716) 532-9132 

Corey Buffo, Chief 

PRESIDENT'S OFFICE 

Regional, State and Tribal Standards Support Branch 

U.S. EPA, Mail Code 4305T 

1200 Pennsylvania A venue, NW 

Washington, DC 20460 

By email to: T ASreinterpretation@epa.gov 

Treasurer - Rodney D. Pierce 

90 OHI:YO' WAY 

ALLEGANY TERRITORY 

SENECA NATION 

SALAMANCA 14779 

Tel. (716) 945-1790 

FAX (716) 945-0150 

Re: Comments on Potential Reinterpretation of Clean Water Act T AS Provisions 

Dear Mr. Buffo: 

The Seneca Nation strongly supports an interpretation of Clean Water Act ("CWA") § 

518(e), 33 U.S.C. § 1377(e), as a congressional delegation of authority to Indian tribes to 

administer CW A programs on trust lands and near Indian reservations. This interpretation is 

consistent with the express language of the CW A and is an appropriate recognition of tribal 

sovereignty. 

The Seneca Nation is aware that a chief reason for the reluctance of other Indian tribes to 

apply for federal approval of water quality standards is EPA's current requirement that tribes 

demonstrate, under Montana v. United States, 450 U.S. 544 (I 981 ), that they have authority over 

their own reservations. The Seneca Nation has consistently maintained exclusive authority over 

its Territories and undertaken numerous environmental protection measures and activities to 
Mr. Corey Buffo 

June 11 , 2014 

Page 2 

protect its natural resources. Moreover, the Seneca Nation's authority has been reaffirmed in 

various treaties and other agreements between the Seneca Nation, the United States, and the State 

of New York; for example, in acknowledging all land within the described boundaries to be the 

property of the Seneca Nation, the United States agreed in the Canandaigua Treaty1 

never to 

claim the same, nor disturb the Seneca Nation, "in the free use and enjoyment thereof'. 2 This 

language has served as the foundation for the Seneca Nation's position that it can enact and 

administer water quality and other environmental programs without Federal or State oversight. 

Nonetheless, the Seneca Nation does believe that interpreting CW A § 518( e) as a 

congressional delegation of authority, thereby obviating the need for tribes to make Montana 

demonstrations, would go a long way toward alleviating other tribes' concern on this point. 

Moreover, EPA's proposed reinterpretation is confirmed by case law. As EPA 

acknowledged in its initial rulemakings under CW A § 518( e), that provision was specifically 

cited by the Supreme Court as an example of a congressional delegation of authority to tribes. 

Brendale v. Confed. Tribes & Bands of the Yakima Nation, 492 U.S. 408, 428 (1989); see also 

Montana v. EPA, 941 F. Supp. 945, 951-52, 957 and n. 12. Moreover, EPA's subsequent 

interpretation of comparable language in Clean Air Act § 301(d), 42 U.S.C. § 7601(d), as a 

congressional delegation was upheld in Ariz. Pub. Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 

2000). Compare CWA § 518(e) (acknowledging tribal authority over water resources "within 

the borders of an Indian reservation") with Clean Air Act § 301 (d) (acknowledging tribal 

authority over air resources "within the exterior boundaries of the reservation"). 

EPA also has noted that "the activities regulated under the various environmental statutes 

generally have serious and substantial impacts on human health and welfare;" that the CWA 

itself "constitutes, in effect, a legislative determination that activities which affect surface water 

and critical habitat quality may have serious and substantial impacts;" that "because of the 

mobile nature of pollutants in surface waters and the relatively small length/size of . .. water 

bodies on reservations, it would be practically very difficult to separate out the effects of water 

quality impairment on non-Indian fee land within a reservation with those on tribal portions;" 

and that "any impairment that occurs on, or as a result of, activities on non-Indian fee lands are 

[sic] very likely to impair the water and critical habitat quality of the tribal lands." 56 Fed. Reg. 

64876, 64878 (Dec. 12, 1991). There is therefore little if any reason to require each and every 

tribe applying for CW A approval of water quality standards to demonstrate, through application 

of the Montana test, these very same principles, especially in light of the substantial amount of 

time and effort Montana demonstrations entail. 

1 Treaty with the Six Nations (1794) Nov. II, 1794, 7 Stat., 44, proclaimed Jan. 21, 1795 

2 See Article III, Treaty with Six Nations 
Mr. Corey Buffo 

June11 , 2014 

Page 3 

Finally, as EPA has recognized, id., it is vital to human health and the environment to 

ensure that all surface waters and critical habitats are protected, see CW A § 101 (a), 33 U .S.C. § 

1251 (a), including those on tribal lands. Therefore, EPA not only should encourage tribes to 

promulgate water quality standards to protect resources on their reservations, but also EPA 

should refrain from establishing unnecessary requirements that deter tribes from developing 

water quality standards. EPA's proposed reinterpretation of CWA§ 518(e) serves both purposes. 

For all these reasons, the Seneca Nation encourages EPA to proceed with a rulemaking 

reinterpreting CW A§ 518( e) as a congressional delegation of CW A authority to Indian tribes to 

administer CW A programs on trust lands and near Indian reservations. 

Sincerely,