# 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 Avenue, NW Washington , DC 20460 By email to: TASreinterpretation @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 CWA programs on trust lands and near Indian reservations. This interpretation is consistent with the express language of the CWA and is an appropriate recognition of tribal
sovereignty.

The Seneca Nation is aware that a chief reason for the reluctance ofother Indian tribes to apply for federal approval of water quality standards is EPA's current requirement that tribes demonstrate, under Montana v. Un ited 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 toMr. 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 ofNew 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 Treaty 1 never to claim the same, nor disturb the Seneca Nation, "in th efree 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 CWA 

### § 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 tribe s' 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. Brendal e v. Confed. Tribes & Bands of th e 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). Compa re 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 ofthe re servation").

EPA also has noted that " the activities regulated under the various environmental statutes generally have serious and sub stantial impacts on human health and welfare; " that the CWA itself "con stitutes, in effect, a legi s lative determination that activities which affect surface water and critical habi tat 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 "a ny impairment that occurs on, or as a result of, activities on non-Indian fee land s 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 CWA approval of water quality standards to demon strate, 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 . 2 1, 1795 2 See Article III , Treaty with Six NationsMr. 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 CWA § 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 ofCWA§ 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 CWA authority to Indian tribes to administer CWA programs on trust lands and near Indian reservations. Sincerely,