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### Potential Reinterpretation of a Clean Water Act Provision Regarding

Tribal Eligibility to Administer Regulatory Programs

Prepared by the EPA Office of Science and Technology

May 2014

EPA took a cautious approach in 1991 when it interpreted a Clean Water Act (CWA) provision to mean
that each tribe seeking to administer a regulatory program must demonstrate its own inherent regulatory authority. The demonstration has proven to be the most challenging and resource

- intensive element of a tribe’s application to be treated in a manner similar to a state (“TAS”). Based on EPA’s experience and developments in the case law since 1991, EPA is considering a potential reinterpretation that could significantly reduce the burden on individual tribes applying for TAS.

I. CURRENT INTERPRETATION OF TAS PR OVISION IN CWA

In the preamble to a 1991 TAS regulation, 1 EPA interpret ed the CWA TAS provision at section 518 to
mean that a tribe must demonstrate its inherent regulatory authority to be eligible to administer a regulatory program under the CWA . Further, where the tribe ’s reservation includes nonmember

- owned
fee lands , the tribe generally must demonstrate that nonmember activities on nonmember

- owned fee lands could have a substantial, direct effect on the tribe’s health or welfare

– commonly kno wn a s the

“ Montana test.” 2 EPA has issued guidance to tribes for complying with this interpretation when applying for the water quality standards program and section 401 certifications; a similar approach would be used for section 402 or 404 permit progra m applications. 3

II. POTENTIAL REINTERPRETATION OF TAS PROVISION IN CWA

EPA is considering reinterpreting CWA section 518 as a n express delegation by Congress to eligible tribes to administer CWA regulatory programs over their entire reservations irrespe ctive of who owns the land. This would replace EPA’s current interpretation that an applicant tribe must demonstrate its inherent authority. The potential reinterpretation is supported by: the plain language of section 518; a similar approach applied in im plementing the Clean Air Act TAS provisions; and relevant judicial cases and EPA’s experience since 1991. One effect could be a significant reduction in the time and effort for tribes to apply for and receive TAS.

EPA would accomplish the reinterpretation by issuing an interpretive rule after soliciting and considering public comments. The interpretive rule would be accompanied by a revision to EPA’s current guidance for tribal applications. Neither the CWA statutor y language nor EPA’s implementing regulations would
be revised , since the language of both supports the proposed reinterpretation

. A tribe would still need to identify the boundaries of the reservation areas for which it seeks TAS eligibility to administer a regulatory program, and EPA will still provide state s, other appropriate governmental entities , and the public the opportunity to comment on the tribe’s assertion of authority before EPA approves or

1 Amendments to the Water Quality Standards Regulation That Pertain to Standards on Indian Reservations , Final Rule, 56 FR 64895, Dec. 12, 1991.

2 See Montana v. U.S. , 450 U.S. 544 (1981).

3 See Strategy for Reviewing Tribal Eligibility Applications to Administer EPA Regulatory Programs, EPA, 2008, http:// www.epa.gov/indian/laws/tas.htm , Attachments B and C2 of 3

disapproves TAS for the tribe. A s with state s, EPA will maintain oversight o f any authorized tribal regulatory programs

. EPA regulations also require states and authorized tribes to consider public comments before they act, such as when adopting water quality standards or issuing discharge permits.

III. STATUS OF THIS ACTION AND NEXT STEPS

During April

- July, 2014, EPA is conducting pre

- proposal consultation and coordination with tribes and states, consistent with relevant EPA and other federal policies. EPA welcomes the views of tribes and states at this early stage, and is open to requests for further consultation opportunities.

EPA will fully consider all comments and views received during this consultation and coordination. If EPA decides to proceed, the interpretive rule could be propos ed in the Federal Register in Fall 2014 with a comment period of 60 days to follow. The reinterpretation would not become effective until all comments are considered and the interpretive rule is finalized, likely not before Fall 2015. In the meantime, EPA will continue to implement the current interpretation of the CWA TAS provision.

IV. FOR FURTHER INFORMATION

 Further information on this potential action is available at http://water.epa.gov/scitech/swguidance/standards/wqslibrary/tribes_index.cfm

.

 To ask questions or provide comments, please email Fred Leutner at TASreinterpretation@epa.gov or 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 20460.3 of 3 

### Potential TAS Reinterpretation Changes to Expect (shad ed areas )

Current Interpretation After

Reinterpretation Eligibility Criteria for TAS in CWA Sec. 518 and EPA regulations 4

-- the tribe must demonstrate that it...
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... Demonstrat ing 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

Review Process es – for a tribal Water Quality Standards program

 EPA seeks comments on tribal TAS application’s assertion of authority

– from appropriate governmental entities, local parties (per § 131.8(c))

 EPA seeks comments on EPA’s factual findings concerning inherent tribal authority for TAS

– from appropriate governmental entities, local parties (per EPA guidance) Not needed

 Tribe seeks comments on its water quality standards before submitting to EPA for approval

– from the public (per § 131.20)

4 The numbered elements are paraphrased from CWA section 518. The bulleted elements are paraphrased from selected provisions of EPA’s TAS regulations for regulator y programs: 40 CFR §§ 131.8 (water quality standards), 131.4(c) (water quality certifications), 123.31

- 34 (section 402 permitting), and
233.60

- 62 (section 404 permitting).