# Potential Reinterpretation of a Clean Water Act Provision Regarding Tribal 

# Eligibility to Administer Regulatory

Programs USEPA Office of Science and Technology

May 2014

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# This Presentation Covers...

• Key Terms • Issue & Purpose 

## • TAS Provision of the Clean Water Act • Current Interpretation of TAS • Potential Reinterpretation of TAS • Working Schedule • For More Information

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# Key Terms
• CWA – the Clean Water Act • TAS – treatment of tribes in a similar manner to a state, for the purposes of administering EPA programs. • Tribe – one of the 566 Indian tribes that are federally recognized, of which over 300 have reservations. • Reservation – either a formal reservation or tribal trust land outside 

### of a formal reservation. • Nonmember fee lands – lands within a reservation that are owned outright (“in fee simple”) by nonmembers of the tribe.

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# Key Terms
• Regulatory program – one of the following CWA programs:

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• Sec. 303(c) water quality standards • Sec. 303(d) listings and TMDLs • Sec. 401 water quality certifications • Sec. 402 NPDES permits • Sec. 404 dredge or fill permits

# Issue • EPA took a cautious approach in 1991 when it interpreted a CWA provision to mean that each tribe seeking TAS must demonstrate its own inherent regulatory authority. • The demonstration has proven to be the most challenging and 

### resource- intensive element of a TAS application, and may be one cause of a slowdown in TAS applications and approvals for CWA regulatory programs. 

# Purpose • To describe a potential reinterpretation of the CWA’s TAS 

### provision that EPA is considering. The reinterpretation could significantly reduce the burden on individual tribes applying for TAS. 5

# TAS Provision of the CWA

• Section 518 of the Clean Water Act authorizes EPA to treat a tribe in the same manner as a state for purposes of a regulatory program if the tribe:

• EPA has issued program - by- program regulations specifying: • The information a tribe must submit when applying for TAS • The process EPA must follow in acting on a TAS application 6 1. Is federally recognized and has a reservation. 2. Has a governing body carrying out substantial governmental duties and powers. 3. Has appropriate authority to regulate the quality of reservation waters. 4. Is reasonably expected to be capable of carrying out the functions of the program.

# TAS Provision of the CWA Results to date: • Regulatory programs  303(c) WQ standards and 401 certifications ............................48 tribes approved  303(d) listings/TMDLs ..........................................TAS process under consideration 402 NPDES ..........................................................some interest, no tribes approved 404 dredge or fill .............................................limited interest, no tribes approved 

### • Grant programs*  106 management programs .....................................................266 tribes approved  319 nonpoint source management .........................................180 tribes approved *Grant programs are not discussed further in this presentation. Tribal grant applicants do not need to demonstrate regulatory jurisdiction. 7

# Current Interpretation of TAS In 1991,* EPA interpreted the CWA TAS provision to mean: • A tribe must demonstrate its inherent regulatory authority 

## to be eligible for TAS for a regulatory program.
• A tribe with nonmember-owned fee lands needs to meet the “Montana” test . Generally includes a factual demonstration that nonmember activities on nonmember-owned fee lands could have a substantial, direct effect on the tribe’s health or welfare. See Montana v. U.S., 450 U.S. 544 (1981) *The interpretation appeared in a CWA TAS rule preamble, 56 FR 64895, 12- 12- 1991. At the time, EPA recognized that other interpretations were available, but chose a cautious approach pending subsequent developments that could warrant reconsideration. 8

### Example of “nonmember activities on nonmember-owned fee lands that could have a substantial, direct effect on the tribe’s health or welfare” Reservation Nonmember fee lands X = industrial facility discharging treated 

### wastewater to tribal waters 9 X 

# Current Interpretation of TAS

# Potential Reinterpretation of TAS

• EPA is considering reinterpreting CWA section 518 as an express delegation by Congress to eligible tribes to administer CWA 

## regulatory programs over their entire reservations irrespective of who owns the land.



## • This would replace EPA’s current interpretation that a tribe must demonstrate its inherent regulatory authority.

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## The potential reinterpretation is supported by:
• The plain language of Clean Water Act section 518
• A similar approach applied in implementing the Clean Air Act TAS provisions
• Relevant judicial cases since 1991
• EPA’s experience since 1991
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# Potential Reinterpretation of TAS

## EPA would accomplish the reinterpretation by issuing an interpretive rule after soliciting and considering public comments.
• The reinterpretation would replace EPA’s 1991 interpretation. • The interpretive rule would include a revision to EPA’s current guidance for tribal applications.* • Neither the CWA statutory language nor EPA’s implementing regulations would be revised; all existing regulatory requirements will remain. *Current guidance: Strategy for Reviewing Tribal Eligibility Applications to Administer EPA Regulatory Programs, EPA, 2008, http://www.epa.gov/indian/laws/tas.htm , Attachments B and C 12 

# Potential Reinterpretation of TAS13

EPA regulations require the tribe to demonstrate that it... Current Interpretation After Reinterpretation 1. Is federally recognized and has a reservation. 2. Has a governing body carrying out substantial governmental duties and powers. 3. Has appropriate authority to regulate the quality of reservation waters. • Tribe must provide a map or legal description of reservation boundaries

• Legal counsel must describe the basis of the tribe’s authority by... Demonstrating inherent authority* and, if fee lands on reservation, meeting the Montana Test Relying on the

Congressional delegation of authority

• Tribe must identify the surface waters to be regulated 4. Has (or has a plan for developing) the capability to administer the program *As specified in EPA’s 1991 preamble and current guidance 

# Potential Reinterpretation of TAS14

Comment rounds for tribes to set Water Quality Standards: Comments from Current

Interpretation After Reinterpretation • EPA seeks comments on tribal application’s assertion of authority Appropriate govt. entities, local parties • EPA seeks comments on EPA’s factual findings concerning inherent tribal authority Appropriate govt. entities, local parties (Not needed ) • Tribe seeks comments on its water quality standards before submitting to EPA for approval Public 

# Potential Reinterpretation of TAS

Comment round for tribes to issue Sec. 402 or 404 Permits: • EPA seeks comments on tribe’s permit program application (including TAS elements) Public

## Recap of potential changes : • Replace demonstration of inherent regulatory authority with reliance on the Congressional delegation of authority • Remove one of three rounds of comments for tribes to set WQS 

## Recap of what would stay the same : • All other TAS eligibility requirements established in the Act and EPA’s regulations 

## • All other opportunities for comment before final EPA action
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# Potential Reinterpretation of TAS

## One effect could be a significant reduction in the time and effort for tribes to apply for TAS:

• The inherent authority demonstration has been challenging and resource- intensive. • Montana tests alone have added an average 2.3 years to a tribe’s TAS application process for the water quality standards program.


### • Under the Congressional delegation approach, the process would be simplified: • A tribe would generally be able to rely on the Congressional delegation of authority, but would need to address any potential impediments to effectuating the delegation (generally an unusual circumstance). • Eliminate development and review of EPA’s factual findings concerning the tribe’s inherent authority over nonmember activities. 16 

# Potential Reinterpretation of TAS

# Working Schedule

• Letter initiating tribal consultation/coordination .............April 18 • Tribes-only consultation/coordination webinars ........May 22, 28 • Pre- proposal tribal consultation/coordination ........ends June 20 If EPA decides to proceed: 

## • Proposal of interpretive rule in Federal Register ............Fall 2014 • Public comment period (60 days) ............................start Fall 2014 • Post- proposal tribal consultation/coordination .......................TBD 

## • Issue final interpretive rule in Federal Register ...............Fall 2015
17 SUBJECT TO CHANGE

# For More Information

• To view this presentation and related materials: http://water.epa.gov/scitech/swguidance/standards/wqslibrary/tribes_index .cfm



### • To ask questions or provide comments/views, please email: TASreinterpretation@epa.gov

• To discuss the national consultation process, please contact: Beth Leamond, Leamond.Beth@epa.gov (202) 566-0444 18 COMING SOON

# For More Information

EPA contacts:

19 Region 1 – Ellen Weitzler, weitzler.ellen@epa.gov Region 2 – Wayne Jackson, jackson.wayne@epa.gov Region 4 – Eve Zimmerman, zimmerman.eve@epa.gov Region 5 – Kathleen Mayo, mayo.kathleen@epa.gov Region 6 – Diane Evans, evans.diane@epa.gov Region 7 – Amy Shields, shields.amy@epa.gov

, Ann Lavaty

, lavaty.ann@epa.gov

, Region 8 – George Parrish, parrish.george@epa.gov Region 9 – Wendell Smith, smith.wendell@epa.gov Region 10 – Maja Tritt, tritt.maja@epa.gov Headquarters – Fred Leutner, TASreinterpretation@epa.gov

# Any Questions?

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# Comments and Views from Tribes Consider the following questions:

• Should EPA proceed with this action to reinterpret TAS?

• Do you think this potential TAS reinterpretation would encourage your tribe to apply for TAS if it has not done?

• For tribes that have TAS status, do you think this would have reduced your time and effort? 21

# After today’s webinar, we welcome any further tribal input by June 20, including: Questions, comments, views from... • The 60+ tribes with direct experience in the WQS TAS process. 

### • Tribes that have considered but not pursued TAS for regulatory programs. • Any other interested tribes. • Consultation input from tribal leaders or their designees.

22 Write: Corey Buffo, Chief Regional, State and Tribal Standards Support Branch (mail code 4305T) Office of Water U.S. Environmental Protection Agency 1200 Pennsylvania Avenue Washington, DC 20460 Email: TASreinterpretation@epa.gov 

### For Consultation: • Regional contact • Beth LeaMond in HQs (202) 566-0444 Leamond.beth@epa.gov