From: Chard

- McClary, Shelli e <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 FaxCOMMENTS BY THE OKLAHOMA DEPARTMENT O F 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 . T he reason for this is simple . T here are no

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

the late 19 th and early 20 th 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In fact, EPA itself has recognized the unique situation in Oklahoma in its unpublished Advanced Notice of Public Rulemaking of November 2003, entitled “Proposed Core Federal Water Quality Standards for Indian Country.”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 exampl e, 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 off

reservation 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.

The se facts have not changed since 2003. The refore, 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 t ribal 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 righ tful burden of demonstrating authority over an y given parcel of tribal trust land

to the State

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

docume ntation regarding the area’s status as t ribal 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.