From: Chard-McClary, Shellie <Shellie.Chard-McClary@deq.ok.gov>

Sent: Thursday, July 17, 2014 5:17 PM

To: TASreinterpretation

Subject: Oklahoma DEQ Preliminary Comments

Fred –

As discussed on the ECOS Water Committee Call, I have attached the 

document that Oklahoma DEQ’s General Council prepared and submitted to 

Western States Water Council.

Thanks

Shellie

Shellie Chard-McClary

Water Quality Division Director

Oklahoma Department of Environmental Quality

707 N. Robinson

P.O. Box 1677

Oklahoma City, OK 73101-1677

(405) 702-8157 Office

(405) 702-8101 Fax
COMMENTS BY THE OKLAHOMA DEPARTMENT OF ENVIRONMENTAL QUALITY

(ODEQ) REGARDING EPA’s POTENTIAL REINTERPRETATION OF A CLEAN WATER ACT 

PROVISION REGARDING TRIBAL ELIGIBILITY TO ADMINISTER REGULATORY 

PROGRAMS

ODEQ Comment #1 – EPA’s potential reinterpretation of CWA section 518 as an express 

delegation by Congress to eligible tribes to administer CWA regulatory programs over their 

entire reservations is unworkable in Oklahoma. The reason for this is simple. There are no 

“reservations” within the State of Oklahoma due to Congressional and executive actions in 

the late 19th and early 20th centuries. (See Francis Paul Prucha, The Great Father, p. 757 

(1984)

In fact, EPA itself has recognized the unique situation in Oklahoma in its unpublished 

Advanced Notice of Public Rulemaking of November 2003, entitled “Proposed Core Federal 

Water Quality Standards for Indian Country.” In that document, EPA stated,

[I]n some areas, allotments comprise the bulk of Indian country. For example, it is 

EPA’s understanding that off-reservation allotments or Tribal trust lands . . . 

comprise almost all of the Indian country for Tribes in Oklahoma . . . Of these offreservation lands, it is EPA’s understanding that approximately 90 – 95 percent are

comprised of off-reservation allotments, and 5- 10 percent of these lands are Tribal 

trust lands.

These facts have not changed since 2003. Therefore, at least within the boundaries of 

Oklahoma, the only areas a tribe could possibly identify for purposes of its eligibility to 

administer regulatory programs under CWA are individual parcels of tribal trust land. 

These lands are not contiguous; they are scattered randomly across the State and are not 

within the limits of any reservation. Any attempt by EPA to allow tribes to regulate CWA

programs in Oklahoma in the absence of a specific identification of trust lands will result in 

needless regulatory confusion, jurisdictional entanglements within the State and possible 

litigation.

ODEQ Comment #2 – In its statement regarding the potential reinterpretation, EPA 

indicates that it will “still provide state and other appropriate governmental entities the 

opportunity to comment on the tribe’s assertion of authority before EPA approves or 

disapproves TAS for the tribe.” The effect of this in Oklahoma would be simply to shift the 

tribe’s rightful burden of demonstrating authority over any given parcel of tribal trust land

to the State. The State then would likely have to rely on the tribe itself or BIA for 

documentation regarding the area’s status as tribal trust land. For that reason, it makes

sense for EPA to recognize in its potential rulemaking that there are no tribal reservations 

in Oklahoma and to require documentation of authority over such areas by the tribal TAS

applicant accordingly. 

The Oklahoma DEQ reserves the right to amend these comments and/or make additional 

comments if and when EPA publishes its proposed rule.