64876 Federal Register I Vol. 56, No. 239 I Thursday, December 12. 1991 I Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[WH-FRL-4038-8] 

Amendments to the Water Quality 

Standards Regulation That Pertain to 

Standards on Indian Reserva~lons 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: This rule amends the water 

quality standards regulation by adding: 

(1) The procedures by which an Indian 

Tribe may qualify for treatment as a 

State for purposes of the Clean Water · 

Act section 303 water quality standards 

and section 401 certification programs, 

and (2) a mechanism to resolve 

unreasonable consequences that may 

arise from Indian Tribes and States 

adopting differing water quality 

standards on common bodies of water. 

EFFECTIVE DATE: The rule shall be 

effective January 13, 1992. 

ADDRESSES: The public may inspect the 

administrative record for this 

rulemaking and all comments received 

on the proposed regulation at the 

Environmental Protection Agency, 

Standards and Applied Science 

Division, Office of Science and 

Technology, room 919 East Tower, 401 

M Street, SW., Washington, DC, 

between the hours of 8 a.m. and 4:30 

p.m. on business days. A reasonable fee 

will be charged for copying. Inquiries 

can be made by calling 202-260-1315. 

FOR FURTHER INFORMATION CONTACT: 

David K. Sa bock, Environmental 

Protection Agency, Standards and 

Applied Science Division, (WH-585), 401 

M Street, SW., Washington, DC, 20460, 

(202) 260-1318. 

SUPPLEMENTARY INFORMATION: 

Information in this preamble is 

organized as follows: 

A. Background 

B. Changes to the Proposed Rule 

C. Response to Public Comments 

1. Treatment of Tribes as States 

2. Dispute Resolution Mechanism 

3. Establishing Water Quality Standards on 

Reservations 

4. Other Comments 

D. Regulatory Flexibility Act 

E. Paperwork Reduction Act 

F. Regulatory Impact Analysis 

A. Background 

Section 303(c) of the Clean Water Act 

(33 U.S.C. 1313(c)) requires the States to 

develop, review, and revise water 

quality .standards for all surface waters 

of the United States. The Environmental 

Protection Agency's (EPA's) 

implementing regulations (40 CFR part 

131) require that, at a minimum, such 

standards include designated water 

uses, in-stream criteria to protect such 

uses, and an antidegradation policy. 

EPA's role in the water quality 

standards program is to review and 

approve or disapprove the Stateadopted water quality standards. and, 

where necessary, to promulgate Federal 

water quality standards. 

Section 401 of the CWA provides that 

States may grant or deny "certification" 

for Federally permitted or licensed 

activities that may result in a discharge 

to the waters of the United States. The 

decision to grant or deny certification is 

based on the State's determination 

regarding whether the proposed activity 

will comply with the requirements of 

certain sections of the CWA enumerated 

in section 401(a)(1). These sections 

include those requiring water quality 

standards and effluent limitations. If a 

State denies certification, the Federal 

permitting or licensing agency is 

prohibited from issuing a permit or 

license. Certifications are subject to 

objection from downstream States 

where the downstream State determines 

that the proposed activity would violate 

its water quality requirements. 

Certifications are normally issued by the 

State in which the discharge originates, 

but may be issued in certain 

circumstances by an interstate agency 

or the Administrator. 

The February 4, 1987 Amendments to 

the Act added a new section 518, which 

requires EPA to promulgate regulations 

specifying how the Agency will treat 

qualified Indian Tribes as States for the 

purposes of, among others, the section 

303 (water quality standards) and 

section 401 (certification) programs 

described above. Section 518 also 

requires EPA, in promulgating these · 

regulations, to establish a mechanism to 

r~;Jsolve unreasonable consequences that 

may result from an Indian Tribe and a 

State adopting differing water quality 

standards on common bodies of water. 

On September 22, 1989, the 

Environmental Protection Agency [EPA) 

proposed amendments to the water 

quality standards regulations in 

response to CWA section 518 

requirements [see 54 FR 39098). The 

proposal included amendments that 

would: (1) Add procedures by which an 

Indian Tribe could qualify for treatment 

as a State for purposes of the section 303 

water quality standards and section 401 

certification programs of the Clean 

Water Act, and (2) establish a 

mechanism to resolve unreasonable 

consequences that. may result from an Indian Tribe and a State adopting 

differing water quality standards on 

common bodies of water. Pursuant to 

CWA section 518, the proposal had been 

prepared in consultation with States and 

Indian Tribes. The proposal was 

developed with the assistance of an 

informal work group composed of 

representatives from Indian Tribes, 

States, and EPA. In addition, a national 

consultation meeting involving States 

and Tribes was held in Denver, 

Colorado in June of 1988 for the purpose 

of obtaining additional comments. 

Finally, EPA distributed a number of 

drafts of the proposal to all States and 

Tribes (following a mailing list of 

Federally recognized Tribes obtained by 

the Office of Water) for review and 

comment prior to issuing the proposed 

rule. 

Public hearings on the September 22, 

1989 proposal were held in Phoenix, 

Arizona on November 14, 1989, Rapid 

City, South Dakota on November 16, 

1989, and Washington, DC on December 

5, 1989. A total of 25 people registered at 

the three hearings. The public comment 

period closed on December 22, 1989. 

EPA received a total of 34 written 

comments on the proposed rule. 

EPA notes that more comments were 

received on the various drafts of the 

proposed rule than on the proposed rule 

which was ultimately published. EPA 

believes that many of the difficult issues 

were resolved during the consultation 

period prior to proposal, and that this 

explains why relatively few comments 

were received on the proposal and why 

relatively few changes to the proposal 

were required in preparing today's final 

rule. Another reason is that EPA had 

previously published similar procedures 

under CWA section 518 for the section 

106 water quality management and 

planning program (54 FR 14354; Aprilll, 

1989). 

Additional background information 

was included in the preamble to the 

proposed rulemaking. 

B. Changes to the Proposed Rule 

Two changes were made to the rule as 

a result of the public comments. 

EPA received several comments on 

the provision of the dispute resolution 

mechanism which specifies how 

arbitrators should be selected (see 

§ 131.7(£)(2)). These various comments 

suggested that such persons should be 

acceptable to all parties, knowledgeable 

about water quality standards, 

knowledgeable about Indian law and 

Tribal governments, and impartial. 

The rule was amended to provide that 

·the Regional. Administrator select as 

arbitrators and panel meinbers 

individuals who: (1) Are agreeable to all 
Federal Register I Vol. 56, No. 239 I Thursday, December 12, 1991 I Rules and Regulations 64877 · 

affected parties, (2) are knowledgeable 

concerning the requirements of the 

water quality standards program, (3) 

have a basic understanding of the 

political and economic interests of 

affected Tribes and States. and (4) are 

expected to fulfill the duties fairly and 

impartially. The regulation provides 

wide latitude as to who a Regional 

Administrator may appoint including 

EPA employees, employees of other 

Federal agencies, or "other individuals 

with appropriate qualifications." EPA 

believes that this regulatory provision 

should be broad enough to encompass 

all possibilities. 

Section 131.7 (f)(1)(ii) requires that 

"mediators shall act as neutral 

facilitators * * * ". Implicit in the 

regulation is the sense that mediators 

and arbitrators will act fairly and 

impartially. EPA knows of no regulatory 

provision that will guarantee 

impartiality. It should be noted, 

however, that there is an appeals 

process included in the regulation (see 

§ 131.7(f)(2)(v)) for those instances 

where a party believes the arbitrator's 

recommendation is an action contrary to 

or inconsistent with the Clean Air Act. 

The second suggested change was 

that EPA should define the terms 

"promptly" and "reasonable efforts" 

used in one provision of the dispute 

resolution mechanism(§ 131.7(d)). The 

referenced section requires EPA, upon a 

determination by EPA that a dispute 

resolution action is required, to 

"promptly" notify affected parties that 

EPA is initiating an action and to make 

"reasonable efforts" to ensure that all 

interested groups also have notice that 

EPA is initiating a dispute resolution 

action. 

EPA revised § 131.7(d) to replace the 

term "promptly" with "within 30 days," 

and specified that "reasonable efforts" 

shall include but not be limited to: (1} 

Written notice to responsible Indian and 

State agencies, and other affected 

Federal agencies, (2) notice to the 

specific individuals or entity that is 

alleging that an unreasonable 

consequence is resulting from differing 

standards having been adopted on a 

common body of water, (3) public notice 

in local newspapers, radio, and 

television, as appropriate, and (4) 

publication in trade journal newsletters, 

and (5} other means as appropriate. 

Many of the comments received on 

the proposed rulemakiT~g were 

suggestions for clarification which are responded to affirmatively in the 

Response to Public Comment Section 

below. Where appropriate, EPA has 

attempted to provide responses which 

will also serve as guidance for 

implementation of today's rule. The 

substance of these responses and any 

additional guidance needed will be 

added to the Water Quality Standards 

Handbook which contains the program 

guidance supplementing the 

requirements of the water quality 

standards regulation. The Agency's 

rationale for addressing the few 

suggestions for revising the regulatory 

language is also included in the 

Response to Public Comments Section. 

C. Response to Public Comments 

The response to public comments is 

organized into four sections: (1) 

Treatment of Tribes as States, (2) 

dispute resolution mechanism, (3) 

establishing water quality standards on 

Indian reservations, and (4) other 

comments. Comments discussed within 

each of these sections have been further 

categorized by topic. 

1. Treatment of Tribes as States 

Comments on the Authority 

Requirements 

a. The Scope of Inherent Tribal 

Authority 

Comment: The issue of whether and 

how EPA should require Tribes to 

demonstrate that they meet the 

requirements of section 518(e)(2) of the 

CWA, i.e., that they can demonstrate 

authority to regulate water quality 

within the boundaries of their 

reservations, attracted significant 

comment. Numerous commenters 

remarked on the significal).ce of the 

Supreme Court's decision in Brendale v. 

Confederated Tribes and Bands of the 

Yakima Nation, 492 U.S. 408, (1989) for 

EPA's programs and today's regulations, 

although there were widely differing 

views of how to read the decision. 

Several commenters asserted that 

Brendale' clearly indicates that an 

Indian Tribe may not enforce its water 

quality standards against non-members 

of the Tribe on non-Indian-owned fee 

lands within the boundaries of the 

reservation or that, at the very least, the 

Tribe must include detailed factual 

information that describes the nonIndian lands the Tribe proposes to 

regulate and the reasons supporting its 

jurisdictional assertions. 

By contrast, other commenters 

asserted that Tribes invariably possess 

inherent authority to regulate all 

reservation waters, and that EPA should 

presume the existence of such authority 

and not require Tribes to make any 

specific factual showing. These 

commenters asserted that such authority 

over environmental matters was 

recognized in Montana v. United States. 

450 U.S. 544 (1981}. and not diminished 

by Brendale. 

Response: EPA does not read the 

holding in Brendale as preventing EPA 

from recognizing Tribes as States for 

purposes of regulating water quality on 

fee lands within the reservation, even if 

section 518 is not an express delegation 

of authority (an issue discussed in detail 

below). In Brendale, both the State of 

Washington and the Yakima Nation 

asserted authority to zone non-Indian 

real estate developments on two parcels 

within the Yakima reservation, one in an 

area that was primarily Tribal. the other 

in an area where much of the land was 

owned in fee by nonmembers. Although 

·the Court analyzed the issues and the 

appropriate interpretation of Montana at 

considerable length, the nine members 

split 4:2:3 in reaching the decision that 

the Tribe should have exclusive zoning 

authority over property in the Tribal 

area and the State should have 

exclusive zoning authority over nonIndian owned property in the fee area. 

The decision reflects some difficult 

issues in this area of the law and, as the 

comments indicated, has generated 

considerable controversy over the 

extent of Tribal authority. 

Given the lack of a majority rationale, 

the primary significance of Brendale is 

in its result, which was fully consistent 

with Montana v. United States, which 

previously had held that: 

To be sure, Indian tribes retain inherent 

sovereign power to exercise some forms of 

civil jurisdiction over non-Indians on their 

reservations. even on non-Indian fee lands. A 

tribe may regulate • • * the activities of non- members who enter consensual relationships 

with the tribe or its members. through 

commercial dealing. contracts. leases. or other arrangements • * *. A tribe may also 

retain' inherent power to exercise civil 

authority over the conduct of non-Indians on fee lands within its reservation when that 

conduct threatens or has some direct effect on the political integrity, the economic 

security, or the health or welfare of the tribe. 

Montana, 450 U.S. at 565-66 (citations 

omitted). 

In Brendale, the Court applied this 

test. finding Tribal authority over 

activities that would threaten the health 

and welfare of the Tribe, 492 U.S. at 

443-444 (Stevens, J., writing for the 

Court); id. at 449-450 (Blackmun, J. 

concurring). Conversely, the Court found 

no Tribal jurisdiction where the 

proposed activities "would not threaten 

the Tribe's * * * health or welfare." !d. 

at 432 (White, J., writing for the Court). 

The Agency therefore disagrees with 

commenters who argue that Brendale 

somehow overrules Montana .. 

As further discussed below, EPA 

agrees with certain commenters that 

pending further judicial or 
64878 Federal Register I Vol. 56, No. 239 I Thursday, December 12, 1991 I Rules and Regulations 

Congressional guidance on the extent to 

which section 518 delegates additional 

authority to Tribes, the ultimate decision 

regarding Tribal authority must be made 

on a Tribe-by-Tribe basis and has 

finalized the proposed process for 

making those determinations. Thus, EPA 

rejects the suggestion of other 

commenters that EPA make a conclusive 

statement regarding the extent of Tribal 

jurisdiction over fee lands for all Tribes 

and all waters or even a statement 

regarding any particular reservation, 

except in the context of an actual 

treatment as a State application. This is 

consistent with the approach the 

Agency adopted under the Safe Drinking 

Water Act, when it determined that it 

would not "automatically assume," or 

adopt, in the first instance, a rebuttable 

presumption of tribal authority over all 

water within a reservation that would 

operate even in the absence of any 

factual evidence. See 53 FR 37396, 37399 

(September 26, 1988). Nonetheless, EPA 

sees no reason in light of Brendale to 

assume that Tribes would be per se 

unable to demonstrate authority over 

water quality management on fee lands 

within reservation borders. Rather, as 

discussed below, EPA believes that as a 

general matter there are substantial 

legal and factual reasons to assume that 

Tribes ordinarily have the legal 

authority to regulate surface water 

quality within a reservation. 

In evaluating whether a tribe has 

authority to regulate a particular activity 

on land owned in fee by nonmembers 

but located within a reservation, EPA 

will examine the Tribe's authority in 

light of the evolving case law as 

reflected in Montana and Brenda/e. The 

extent of such tribal authority depends 

on the effect of that activity on the tribe. 

As discussed above, in the absence of a 

contrary statutory policy, a tribe may 

regulate the activities of non-Indians on 

fee lands within its reservation when 

those activities threaten or have a direct 

effect on the political integrity, the 

economic security, or the health or 

welfare of the tribe. Montana, 450 U.S. 

at 56~6. However, in Brendale several 

justices argued that for a tribe to have 

"a protectable interest" in an activity, 

the activity's effect should be 

"demonstrably serious." Brendale, 1492 

U.S. at 431 (White, J.). In addition, in a 

more recent case involving tribal 

criminal jurisdiction, a majority of !he 

Court indicated in dicta that a tribe may 

exercise civil authority "where the 

exercise of tribal authority is vital to the 

maintenance of tribal integrity and selfdetermination." Duro v. Reina, 110 S.Ct. 

2053, 2061 (1990). See also Brendale, 492 

U.S. at 450 (Blackmun, J.) (test for 

inherent tribal authority whether 

activities "implicate a significant tribal 

interest"); id. at 462 (Blackmun, J.) (test 

for inherent trib.al authority whether 

exercise of authority "fundamental to 

the political and economic security of 

the tribe"). 

As discussed above, the Supreme 

Court. in recent cases, has explored 

several options to assure that the 

impacts upon tribes of the activities of 

non-Indians on fee land, under the 

Montana test, are more than de minimis, 

although to date the Court has not 

agreed, in a case on point, on any one 

reformulation of the test. In response to 

this uncertainty, the Agency will apply, 

as an interim operating rule, a 

formulation of the standard that will 

require a showing that the potential 

impacts of regulated activities on the 

tribe are serious and substantial. 

The choice of an Agency operating 

rule containing this standard is taken 

solely as a matter of prudence in light of 

judicial uncertainty and does not reflect 

an Agency endorsement of this standard 

per se. Moreover, as discussed below, 

the Agency believes that the activities 

regulated under the various 

environmental statutes generally have 

serious and subtantial impacts on 

human health and welfare. As a result, 

the Agency believes that tribes will 

usually be able to meet the Agency's 

operating rule, and that use of such a 

rule by the Agency should not create an 

improper burden of proof on tribes or 

create the administratively undesirable 

result of checkerboarding reservations. 

Whether a tribe has jurisdiction over 

activities by nonmembers will be 

determined case-by-case, based on 

factual findings. The determination as to 

whether the required effect is present in 

a particular case depends on the 

circumstances. 

Nonetheless, the Agency may also 

take into account the provisions of 

environmental statutes, and any 

legislative findings that the effects of the 

activity are serious in making a 

generalized finding that Tribes are likely 

to possess sufficient inherent authority 

to control reservation environmental 

quality. See, e.g .. Keystone Bituminous 

Coal Assoc. v. DeBenedictis, 480 U.S. 

470, 476-77 and notes 6, 7 (1987). As a 

result, in making the required factual 

findings as to the impact of a waterrelated activity on a particular tribe, it 

may not be necessary to develop an 

extensive and detailed record in each 

case. The Agency may also rely on its 

special expertise and practical 

experience regarding the importance of 

water management, recognizing that 

clean water. including critical habitat 

(i.e., wetlands, bottom sediments. 

spawning beds, etc.), is absolutely 

crucial to the survival of many Indian 

reservations. 

The Agency believes that 

Congressional enactment of the Clean 

Water Act establishes a strong federal 

interest in effective management of 

water quality. Indeed, the primary· 

·Objective of the CWA "is to restore and 

maintain the chell_lical, physical, and 

biological integrity of the Nation's 

waters" (section 101(a)) and, to achieve 

that objective, the Act establishes the 

goal of eliminating all discharges of 

pollutants into the navigable waters of 

the U.S. and attaining a level of water 

quality which is fishable and 

swimmable (section 101(a)(1)-(2)). Thus 

the statute itself constitutes, in effect, a 

legislative determination that activities 

which affect surface water and critical 

habitat quality may have serious and 

substantial impacts. 

EPA also notes that, because of the 

mobile nature of pollutants in surface 

waters and the relatively small length/ 

size of stream segments or other 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. In other words, any 

impairment that occurs on, or as a result 

of, activities on non-Indian fee lands are 

very likely to impair the water and 

critical habitat quality of the tribal 

lands. This also suggests that the serious 

and substantial effects of water quality 

impairment within the non-Indian 

portions of a reservation are very likely 

to affect the tribal interest in water 

quality. EPA believes that a 

"checkerboard" system of regulation, 

whereby the Tribe and State split up 

regulation of surface water quality on 

the reservation. would ignore the 

difficulties of assuring compliance with 

water quality standards when two 

different sovereign entities are 

establishing standards for the same 

small stream segments. 

EPA also believes that Congress has 

expressed a preference for Tribal 

regulation of surface water quality to 

assure compliance with the goals of the 

CWA. This is confirmed by the text and 

legislative history of section 518 itself. 

The CWA establishes a policy of 

"recogniz[ing], preserv[ing], and 

protect[ing] the primary responsibilities 

and rights of States to prevent, reduce, 

and eliminate pollution, [and] to plan 

the development and use (including 

restoration. preservation, and 

enhancement) of land and water 

resources" section 101(b). By extension, 
Federal Register / Vol. 56, No. 239 I Thursday, December 12, 1991 I Rules and Regulations 64879 

the treatment of Indian Tribes as States 

me;ms that Tribes are to be primarily 

responsible for the protection of 

resrrvation water resources. As Senator 

Burdick, floor manager of the 1987 CWA 

Amendments, explained, the purpose of 

section 518 was to "provide clean water 

for the people of this Nation." 133 Cong. 

Rec S1018 (daily ed. Jan 21, 1987). This 

goal was to be accomplished, he 

asserted, by giving "tribes • • • the 

primary authority to set water quality 

standards to assure fishable and 

swimmable water and to satisfy all 

beneficial uses." !d. 

In light of the Agency's statutory 

responsibility for implementing the 

environmental statutes, its 

interpretations of the intent of Congress 

in allowing for tribal management of 

water quality within the reservation are 

entitled to substantial deference. · 

Washington Dept. of Ecology v. EPA, 

752 F. 2d 1465, 1469 (9th Cir. 1985); see 

generally Chevron. USA v. NRDC, 467 

u.s. 837, 843-45 (1984). 

The Agency also believes that the 

effects on tribal health and welfare 

necessary to support Tribal regulation of 

non-Indian activities on the reservation 

may be easier to establish in the context 

of water quality management than with 

regard to zoning, which was at issue in 

Brenda/e. There is a significant 

distinction between land use planning 

and water quality Qlanagement. The 

Supreme Court has explicitly recognized 

sur.h a distinction: "Land use planning in 

essence chooses particular uses for the 

land; environmental regulation • • • 

does not mandate particular uses of the 

land but requires only that, however the 

land is used, damage to the environment 

is kept within prescribed limits." 

California Coastal Commission v. 

Granite Rock Co., 480 U.S. 572, 587 

(1987). The Court has relied on this 

distinction to support a finding that 

states retain authority to carry out 

environmental regulation even in cases 

where their ability to carry out general 

land use regulation is preempted by 

federallaw./d. at 587-89. 

Further, water quality management 

serves the purpose of protecting public 

health and safety, which is a core 

governmental function, whose exercise 

is critical to self-government. The 

special status of governmental actions 

to protect public health and safety is 

well established.' By contrast, the 

1 This special status has been reaffirmed by all 

nine justices in the context of Fifth Amendment 

takings law. See Keystone Bituminous Coal 

Association vJDeBenedictis, 480 U.S. 470. 491 n. 20 

(1987): ld at 512. (Rehnquist, C.J~ dissenting). 

power to zone can be exercised to 

achieve purposes which have little or no 

direct nexus to public health and safety. 

See e.g. Brenda/e. see, e.g., Brendale, 492 

U.S. at 420 n.5 (White, J.) (listing broad 

range of consequences of state zoning 

decision). Moreover, water pollution is 

by nature h,ighly mobile, freely migrating 

from one local jurisdiction to another, 

sometimes over large distances. By 

contrast, zoning regulates the uses of 

particular properties with impacts that 

are much more likely to be contained 

within a given local jurisdiction~ 

Operationally, EPA's generalized 

findings regarding the relationship of 

water quality to tribal health and 

welfare will affect the legal analysis of a 

tribal submission by, in effect, 

supplementing the factual showing a 

tribe makes in applying for treatment as 

a State. Thus, a tribal submission 

meeting the requirements of § 131.8 of 

this regulation will need to make a 

relatively simple showing of facts that 

there are waters within the reservation 

used by the Tribe or tribal members, 

(and thus that the Tribe or tribal 

members could be subject to exposure 

to pollutants present in, or introduced 

into, those waters) and that the waters 

and critical habitat are subject to 

protection under the Clean Water Act. 

The Tribe must also explicitly assert 

that impairment of such waters by the 

activities of non-Indians, would have a 

serious and substantial effect on the 

health and welfare of the Tribe. Once 

the Tribe meets this initial burden, EPA 

will, in light of the facts presented by 

the tribe and the generalized statutory 

and factual findings regarding the 

importance of reservation water quality 

discussed above, presume that there has 

been an adequate showing of tribal 

jurisdiction of fee lands, unless an 

appropriate governmental entity (e.g., an 

adjacent Tribe or State) demonstrates a lack of jurisdiction on the part of the 

Tribe. 

The Agency recognizes that 

jurisdictional disputes b~tween tribes 

and states can be complex and difficult 

and that it will, in some circumstances, 

be forced to address such disputes. 

However, EPA's ultimate responsibility 

is protection of the environment. In view 

of the mobility of environmental 

problems, and the interdependence of 

various jurisdictions, it is imperative 

that all affected sovereigns work 

cooperatively for environmental 

protection, rather than engage in 

confrontations over jurisdiction. 

b. The Effect of Section 518 on Tribal 

Authority over Non-Indian Activities 

Comment: EPA has received letters 

from three members of Congress, 

Senator Simpson, Senator Baucus, and 

Representative Morrison, regarding the 

impact of Brendale on EPA's Indian 

Policy and the development of 

"treatment as a State" regulations for 

EPA water programs in light of the 

legislative history of section 518. All 

three commenters asserted that 

Congress did not intend to expand the 

scope of Tribal authority over nonIndians on the reservation by the 

passage of section 518. 

Rep. Morrison asserted that he 

inserted into the Congressional Record a 

memorandum written by staff on the 

House Committee on Interior and 

Insular Affairs regarding section 518 

(also inserted into the Congressional 

Record by Senator Adams at 133 Cong. 

Rec. S753-54 (daily ed. January 14, 

1987)) solely to demonstrate that section 

SiB was not intended to expand Tribal 

water quantity rights. 133 Cong. Rec. 

H184-85 (daily ed. Jan 8, 1987). Rep. 

Morrison disavowed other statements 

from that memorandum which might 

support the proposition that Congress 

intended to authorize Tribal jurisdiction 

over non-members on reservations. 

("Indian tribes have the right to regulate 

lands and other natural resources _within 

the reservation, including non-Indian 

owned fee lands or resources." !d. 

(emphasis added)). Rep. Morrison stated 

his belief that Congress did not, by the 

passage of section 518, expand the scope 

of Tribal authority over non-Indians. In 

light of this legislative history, Rep. 

Morrison asserted that, consistent with 

Brendale, EPA should not allow Tribal 

regulation of non-members on so-called 

"open" reservations. 

Senators Baucus and Simpson also 

recommended that EPA consider the 

legislative history of section 518(e) and 

the Brendale decision and determine not 

to allow Tribal regulation over nonmembers on the reservation. 

Finally, all three of these 

Congressional commenters asserted that 

the legislative history of section 518 

clearly shows that it was not intended 

to affect rights to water quantity under 

State law. The concerns raised by these 

Members of Congress echo other 

comments discussed elsewhere. in 

today's notice. Several commenters 

asserted that section 518(e)(2) should 

not be read as an express grant of 

Congressional authority to Indian Tribes 

to regulate such fee lands, despite 

indications in Brenda/e to the contrary. 

By contrast, Senators McCain, 

Burdick, and Inouye expressed a view 

that section 518(e) delegates Tribes 

authority to regulate all waters within 

reservation bounaaries including those 

on non-Indian fee lands. Some 
64880 Federal Register I Vol. 56, No. 239 I Thursday, December 12, 1991 .I Rules and Regulations 

commenters cited Brenda/e for this 

proposition. The latter argument of these 

commenters is based upon the opinion 

of Justice White in Brenda/e; Justice 

White indicates that certain statutes 

may delegate Federal authority to 

Tribes, thereby providing a basis for 

authority over all lands within a 

reservation. As Justice White explained, 

on the record in Brendale there could be 

no contention • • • that Congress has 

expressly delegated to the Yakima Nation the 

power to zone fee lands of nonmembers of 

the Tribe. Compare 18 U.S.C. 1151, 1161 {1982 

ed., and Supp. V); 33 U.S. C. 1377 (e) and (h}{1) 

{1982 ed., Supp. V) (i.e., sections 51B(e) and 

51B[h)(1) of the CWA]. 

492 U.S. at 428 (1989) (White, J.) 

(emphasis added). This language clearly 

categorizes the two cited statutory 

schemes as express delegations of 

Federal authority. Thus, Justice White, 

inter alia, cites the Clean Water Act as 

an example of an explicit delegation of 

authority over non-Indian activities to 

Indian Tribes. Response: EPA has fully 

considered the Congressional comments 

and their interpretation of the legislative 

history of section 518. EPA must, of 

course, consider contemporaneous 

legislative history as it is written, and 

has been cautioned not to rely on 

subsequent statements by Members of 

Congress. Hazardous Waste Treatment 

Council v. EPA, 886 F.2d 355 (DC Cir. 

1989), cert. denied, 111 S.Ct. 139 (1990). 

EPA differs w1th.the Congressional 

commenters to the extent that they 

suggest the legislative history of section 

518 is clear and expresses an intent to 

limit the scope of Tribal authority. EPA 

notes that other legislative history might 

be interpreted as evincing Congressional 

intent to confer expanded Tribal 

authority over non-Indians within the 

reservation. 

In particular, the following colloquy 

between Senators Inouye and Burdick 

on this issue is very relevant: 

Mr. Inouye: • • • I am concerned about 

section 51B(e)(Z). As I read that provision, it 

enables qualified Indian tribes to exercise the 

same water quality rl;lgulatory jurisdiction 

with respect to water that trav(lrses, borders, 

or is otherwise located within their 

reservations [paraphrasing section 51B[h)(1) 

and 18 U.S.C. 1151(a]]that States have for 

regulation of water outside Indian 

reservations. Is my understanding of Section 

51B(e) correct? 

Mr. Burdick: Yes. The intent of the 

conferees was to assure that Indian tribes 

would be able to exercise the same 

regulatory jurisdiction over water quality 

· matters with regard to waters within Indian 

jurisdiction that.States have been exercising 

over their wa.ter. 

133 Cong. Rec. S1018 (daily.ed .. Jan. 21, 

1987) (empha'sis·added). Senator 

Inouye's statement could arguably 

support a reading that Congress 

intended to recognize Tribal authority 

over all waters within the reservation, 

including those managed by nonIndians. Mr. Burdick, a member of the 

Conference Committee, agrees with 

Senator Inouye's statement. 

However, in EPA's view this colloquy 

is ambiguous and inconclusive. Senator 

Burdick, in responding to Senator 

Inouye, agrees that under section 518 

Tribes may regulate waters only if they 

are already "within Indian jurisdiction." 

However, Senator Burdick was only 

recognizing the status quo, i.e .• whatever 

is within Indian jurisdiction may be 

regulated via section 518. Senator 

Burdick's statement does not clearly 

show that he-or the Congress as a 

whole-intended to legislate that all 

waters within the reservation are in fact 

"within Indian jurisdiction." Thus, the 

colloquy is circular: Indians have 

jurisdiction if, but only if, they have 

jurisdiction from some source other than 

section 518. It· does not clearly indicate 

whether Congress intended to expand 

what lies "within Indian jurisdiction." 

Further, if this colloquy were to be 

construed as supporting an expansion of 

tribal authority, it would arguably 

conflict with a statement Senator 

Burdick had made earlier in response to 

an inquiry from Senator Baucus. In that 

discussion, Senator Burdick reiterated 

that section 518 was not intended to 

affect existing water quantity rights, and 

added that "[p]rivate lands and water 

rights owners within boundaries of 

Indian reservations are not to be 

additionally affected by this act." 133 

Cong. Rec. S753 (daily ed. January 14, 

1987) (emphasis added). This could 

suggest that the Act was not intended to 

alter the status quo regarding regulatory 

authority over fee lands. 

The legislative history in the House is 

also unclear as to whether Congress 

intended to expand tribal power over 

non-Indians. The statement in the House 

staff memorandum cited above supports 

a view that under current case law 

Tribes already possess regulatory 

authority over non-Indians within 

reservation boundaries; thus it would be 

unnecessary to delegate such authority 

to tribes. Insertion of this memorandum 

into the Congressional Record could 

suggest that the House agreed with that 

view; however, this aspect of the 

memorandum was never the subject of 

House discussions, which focused 

almost exclusively on issues relating to 

water rights. 

EPA believes that if Congress had 

intended to make a change as important as an expansion of Indian authority to 

regulate nonmembers. it probably would 

have done so through statutory language 

and discussed the change in the 

committee reports. Given that the 

legislative history ultimately is 

ambiguous and inconclusive, EPA 

believes that it should not find that the 

statute expands or limits the scope of 

Tribal authority beyond that inherent in 

the Tribe absent an express i!}dication 

of Congressional intent to do so. See 

Montana, 450 U.S. at 564. Therefore, 

EPA has decided that it will, as 

discussed above, continue to recognize 

inherent Tribal civil regulatory authority 

to the full extent permitted under 

Federal Indian law, in light of Montana, 

Brenda/e. and other applicable case law. 

EPA believes that Congress only 

manifested an explicit intent to 

authorize EPA to treat Indian Tribes as 

States over any activities within the 

scope of Tribal authority in light of the 

relevant principles of Federal Indian 

law. EPA believes that this approach 

will best effectuate the overall purposes 

of the statute. 

EPA agrees with those commenters 

who stated that Justice White's opinion 

in [Jrendale can be read to suggest a 

contrary conclusion, and to indicate that 

at least four justices of the Supreme 

Court would apparently interpret 

section 518(e) as expressly delegating to 

Tribes the authority to regulate water 

quality on reservations, including those 

affected by activities on non-Indian fee 

lands. Nonetheless, .EPA recognizes that 

Justice White's opinion was not a 

majority opinion of the Court and was 

not necessary to the decision even of the 

plurality that joined it, since the issue 

was not before the Court in Brenda/e. 

Nor is there any discussion in the 

opinion about the somewhat confusing 

legislative history of section 518. The 

passing reference in that opinion does· 

not finally resolve the question of 

whether section 518(e) is a delegation of 

authority, and, as discussed above, EPA 

does not believe that it can make an 

absolute determination that Congress in 

fact expressed a clear intent on the 

issue. 

EPA agrees with the Congressional 

commenters that section 518 does not 

affect existing water quantity rights. 

This has been the Agency's consistent 

position, based on the language of 

sections l01(g) and 518(a). 

c. Procedural Requirements for 

Demonstrating Inherent Tribal 

Authority 

Comment: Numerous comments 

submitted before and after the proposed 

rule was published have suggested that 

the provision (see § 131.8(b)(3)(iii)) 

requiring that Tribes submit a copy of .. all documents which support the Tribe's 

assertion of authority is unnecessary, 
Federal Register I Vol. 56, No. 239 I Thursday, December 12, 1991 I Rules and Regulations 64881 

inappropriate. and flows from a 

misunderstanding of Indian law. These 

commenters argued that Tribes have 

inherent authority unless Congress 

rescinds that authority. In addition, 

these commenters stated, since section 

518 specifically authorizes Tribal 

authority. no such demonstration and 

supporting documentation is needed. 

Response: As discussed in detail 

above, the Agency presumes that, in 

general. Tribes are likely to possess the 

authority to regulate activities affecting 

water quality on the reservation. The 

Agency does not believe, however, that 

it would be appropriate to recognize 

Tribal authority and approve treatment 

as a State requests in the absence of 

verifying documentation. In addition, in 

light of the legislative history of section 

518, the question of whether section 

518(e) is an explicit delegation of 

authority over non-Indians is not 

resolved. Therefore, EPA does not 

believe it is currently appropriate to 

eliminate the requirement that Tribes 

make an affirmative demonstration of 

their regulatory authority. EPA will 

authorize Tribes to exercise 

responsibility for the water quality 

standards program once the Tribe 

shows that, in light of the factual 

circumstances and the generalized 

findings EPA has made regarding 

reservation water quality, it possesses 

the requisite authority. 

EPA would advise Tribes. in their 

Attorney-General statements, to outline 

all bases for concluding that the Tribe 

has adequate authority. This can only 

help EPA to make a proper 

determination to treat the Tribe as a 

State. 

As stated in the preamble to the 

proposal. where the Regional 

Administrator concludes that a Tribe 

has riot adequately demonstrated its 

authority with respect to an area In 

dispute, then Tribal assumption of the 

standards program would be restricted 

accordingly. If the authority in dispute 

were focused on a limited area, this 

would not necessarily delay the 

Agency's decision to treat the Tribe as a 

State for the non-disputed areas. 

Comment: Numerous commenters 

suggested that § 131.8(b)(3)(i), which 

requires the Tribe to submit a map of 

legal description of the area over which 

the Indian Tribe asserts authority to 

regulate water, should be amended to 

require that fee lands and lands owned 

by non-members and non-Indians be 

shown on the map. 

Response: No such amendment was 

made to the regulations. EPA believes 

that, in some cases, both States and 

Tribes may want to identify the location 

of fee lands on reservations. However, 

EPA does not believe it is appropriate to 

specifically require Tribes to submit 

such information in all cases. EPA also 

believes that in some cases States are 

more likely to have ready access to such 

information than are Tribes. EPA further 

believes that the regulation clearly 

requires Tribes to identify the area over 

. which the Tribe asserts authority to 

regulate water quality, and that 

requiring an identification of fee lands 

and lands owned by non-Indians in all 

cases is unnecessary and unduly 

burdensome. Finally, EPA notes that 

§ 131.8(b)(5) gives the Regional 

Administrator the discretion to require 

whatever additional information is 

necessary to support a Tribal 

application on a case-by-case basis. 

d. Treatment as a State for OffReservation Waters Within Inherent 

Tribal Authority 

Comment: Several comments were 

received regarding the geographic scope 

of programs authorized under section 

518(e){2). The provision authorizes EPA 

to treat a Tribe as a State for water 

resources which are : 

held by an Indian Tribe. held in trust for 

Indians, held by a member of an Indian Tribe 

if such property interest is subject to a trust 

restriction on alienation, or otherwise within 

the borders of an Indian reservation. 

(emphasis added) 

EPA has consistently read the phrase 

"or otherwise within • • *" as a 

separate category of water resources 

and also as a modifier of the preceding 

three categories of water resources. thus 

limiting the Tribe to acquiring treatment 

as a State status for the four specified 

categories o(water resources within the. 

borders of the reservation. 

Comments received suggested that 

EPA should alter its reading of this 

provision to allow Tribes to qualify for 

treatment as a State over all water 

resources within its jurisdiction. These 

comments asserted that limiting Tribes 

to water resources within the 

reservation would prevent a Tribe from 

obtaining treatment as a State status 

over water resources outside the 

reservation to which it has legitimate 

jurisdictional claim. Examples cited 

included traditional resource areas 

(known as "usual and accustomed" 

areas) outside reservation borders, and 

all lands held in trust for Tribes by the 

U.S. Government or held by individual 

Indians that lie outside reservation 

borders, lands in "Indian Country" (as 

defined in 18 U.S.C. 1151) that lie outside 

reservation borders and, in general, all 

water resources within the territorial 

jurisdiction of the Tribe that lie outside 

reservation borders. 

One commenter pointed out that often 

such lands are subject to Tribal or 

Federal jurisdiction and are thus beyond 

the police power and regulatory 

authority of the State in which they are 

located. This comment concluded that 

failure to provide Tribes with an 

opportunity to obtain treatment as a 

State status over such lands would 

create "regulatory voids" in which 

neither States nor Tribes have clear 

authority. Several comments suggested 

that resolving this issue could be 

accomplished simply by revising the 

definition of Federal Indian Reservation 

included in § 131.3(k). 

In contrast, other commenters 

asserted that EPA is correct in reading 

the phrase "or otherwise within the 

borders • • *" as a modifier of the 

preceding three categories of water 

resources. These commenters pointed 

out that failure to do so would render 

the statute nonsensical and contradict 

congressional intent. However, these 

commenters also asserted that EPA is 

not correct in reading the phrase "or 

otherwise within the borders • • *." as 

a fourth category of water resources, 

because to do so would render the three 

previous clauses superfluous. These 

commenters therefore conclude that 

section 518(e)(2) should not be read as 

authorizing Tribes to regulate nonIndian owned lands within the 

boundaries of the reservation. 

Response: Under today's rule, Tribes 

are limited to obtaining treatment as a 

State status for only water resources 

within the borders of the reservation 

over which they possess authority to 

regulate water quality. The meaning of 

the term "reservation" must, of course, 

be determined in light of statutory law 

and w.ith reference to relevant case law. 

EPA considers trust lands formally set 

apart for the use of Indians to be "within 

a reservation" for purposes section 518 

(e)(2), even if they have not been 

formally designated as "reservations." 

Oklahoma Tax Commission v. Citizen 

Band Potawatomi Indian Tribe of 

Oklahoma. 111 S. Ct. 905, 910 (1991). 

This means it is the status and use of the 

land that determines if it is to be 

considered "within a reservation" rather 

than. the label attached to it. EPA 

believes that it was the intent of 

Congress to limit Tribes to obtaining 

treatment as a State status to lands 

within the reservation. EPA bases this 

conclusion, in part, on the definition of 

"Indian Tribe" found in CWA section 

518(h)(2). As discussed above, EPA also 

does not believe that section 518(e](2) 

prevents EPA from recognizing Tribal 

authority over non-Indian water 

resources located within the reservation 
64882 Federal Register I Vol. .56, No. 239 I Thursday, December 12, 1991 I Rules and RegulationJ 

if the Tribe can demonstrate the 

requisite authority over such water 

resources. 

Comments on the Capability 

Requirements 

Comment: A variety of comments 

were received concerning the general 

issue of Tribal capability(§ 131.8(a)(4} 

and (b)(4)}. Comments on this question 

ranged from suggesting that EPA should 

require no demonstration of capability 

at all to making the capability 

requirements stronger. Several. 

comments asserted that rejecting Tribes 

based on capability will only heighten 

the unevenness of experience between 

States and Tribes. 

Response: EPA made no change in the 

regulation. The provision is not unduly 

burdensome and EPA intends to apply 

similar procedures for Tribes qualifying 

as States in all CWA programs. The 

Clean Water Act establishes basic 

requirements for a Tribe to meet in 

order to qualify for treatment as a State. 

Eliminating the requirement to 

demonstrate capability would fail to 

meet these statutory requirements. On 

the other, hand, EPA does recognize the 

fact that for many Tribes the assumption 

of various Clean Water Act programs is 

new. Information necessary for EPA to 

make determinations of capability must 

be balanced against the need to allow 

Tribes to gain experience in CWA 

programs. EPA believes that today's rule 

provides that balance. 

Comment: A comment was received 

suggesting that since States are required 

to provide judicial review of section 401 

certification rulings, Tribal section 401 

certifications should also be subject to 

judicial review. Related comments 

asserted that the rule should require, as 

part of the demonstration of capability, 

a demonstration of separation of powers 

for executive, legislative, and judicial 

functions, or at least describe how 

bifurcation of Tribal regulatory and 

proprietary roles will occur. 

Response: EPA disagrees that States 

are required to provide judicial reviews 

of section 401 certifications. Judicial 

reviews of section 401 certifications are 

conducted based on the requirements of 

State laws, not the Clean Water Act. 

Therefore, EPA has not required Tribes 

to provide such judicial review, as it is a 

matter of Tribal law. Similarly, EPA has 

not required Tribes to demonstrate 

separation of powers because such a 

demonstration is not required by the 

Clean Water Act. EPA will, however, in 

the context of deciding to authorize 

Tribal NPDES programs or 404 permit 

programs, consider potential conflicts of 

interest where the Tribe would be in the 

position of issuing a permit to a Tribal 

entity. 

Comment: Several comments were 

received requesting that EPA should 

clarify how the Agency will evaluate 

whether the Tribe has a history of 

successful managerial peformance of 

public health or environmental 

programs, and clarify how much detail 

is required in describing a Tribe's 

history of managerial experience (see 

section 131.8(b}(4)(i)}. 

Response: In evaluating Tribal 

experience in public health and 

environmental programs, EPA will look 

for indications that the Tribe has 

participated in such programs, whether 

the programs be those administered by 

EPA, other Federal Agencies, or of 

Tribal origin. For example, several 

Tribes are known to have participated 

in developing areas-wide water 

management plans or Tribal water 

quality standards. EPA will also look for 

evidence of historical budget allocations 

dealing with public health or 

environmental programs along with any 

experience in monitoring in related 

programs. In general, EPA will look 

favorably on Tribe's which have 

experience in managing environmental 

programs, because such experience is an 

indicator of existing capability and 

commitment to environmental 

protection. In most cases, EPA 

anticipates that submission of a brief 

narrative statement on this topic will be 

sufficient. 

Comment: EPA specifically invited 

comment on several options pertaining 

to the proposed demonstration of 

capability requirement. The proposed 

requirement (in § 131.8(b}(4]~v}} 

provided that the Tribe may either 

demonstrate existing capability, or 

submit a plan on how it proposes to 

acquire the capability to administer the 

program if such capability does not now 

exist. The alternative options EPA 

requested comments on were: (1} 

Exclude the provision to submit a plan 

detailing steps of acquiring the 

necessary management and technical 

skills, (2) include a provision which 

would allow EPA to withdraw a 

treatment as a State determination 

where the Tribe fails to demonstrate 

adequate capability (e.g., by failing to 

submit water quality standards for EPA 

review within 3 years from the date of 

qualifying for treatment as a State), and 

(3) include a provision for Tribes to 

submit draft water quality standards as 

part of the demonstration of capability. 

Comments on the option to delete the 

provision allowing Tribes to submit a plan to acquire capability were mixed. 

Several comments supported deletion of 

this provision. One comment asserted 

that treatment as a State should not be. 

granted until capability is achieved; a 

plan to acquire capability whould have 

little meaning if the Tribe receives 

authority prior to actually achieving that 

capability. Other comments supported 

inclusion of this provision because the 

plan would provide information on the 

management and technical skills of 

Tribes. A related comment was received 

that EPA should retain the provision but 

delete the requirement to indicate where 

Tribal funding would be acquired. 

Comments on the option to allow EPA 

to withdraw a treatment as a State 

determination were also mixed. Several 

comments supported some provision 

allowing EPA to withdraw a treatment 

as a State determination, for example 

where the Tribe fails to demonstrate 

acceptable performance or use of the 

authority. Other comments opposed 

such a provision (e.g., because it is 

counter to the Congressional mandate of 

section 518). One comment opposed 

such a provision because it would be 

unfair to withdraw treatment as a State 

for failure to develop a Tribal program 

in the absence of adequate Federal 

financial and technical assistance. 

Conflicting comments on the option to 

require Tribes to submit draft water 

quality standards as part of the 

demonstration of capability were 

received. A number of comments 

indicated that such a provision would be 

burdensome, unproductive, and of little 

practical purpose. Other comments, 

however, supported such a provision 

because draft standards would provide 

evidence of technical skills and would 

allow review of Tribal water quality 

standards early in the process. 

Response: EPA made no change in the 

proposed regulation. EPA believes that 

any Tribe demonstrating sufficient 

interest in applying for the program and 

able either to: (1} Demonstrate existing 

capability, or (2) submit a reasonable 

plan for acquiring such capability, 

should not be excluded from 

consideration. The proposed 

requirement was therefore retained. 

EPA notes, however that such plans will 

be carefuly reviewed; EPA will not 

approve Tribal capability 

demonstrations where such plans do not 

include reasonable provisions for 

acquisition of needed personnel as well 

as reliable funding sources. This 

decision will also provide consistency 

with other Clean Water Act programs. 

Although submission of draft water 

quality standards was not added as a 

requirement, EPA notes that where 

Tribes have developed water quality 

standards programs, submission of the 
Federal Register I Vol. 56, No. 239 I Thursday, December 12, 1991 I Rules and Regulations 1 64883 

completed standards with the 

applicationwill normally be sufficient to 

satisfy the capability requirements, but 

only where the Tribe can also 

demonstrate a continuing commitment 

(i.e., resources and/or technical 

expertise) for reviewing and revising 

their completed standards. 

EPA believes that the comment 

regarding Tribal funding sources raises 

an important point. Prior to applying for 

the standards program Tribes should 

become familiar with and give serious 

consideration to the requirements and 

associated resource impacts of assuming 

the burden of the water quality 

standards program. This was also 

mentioned in the preamble to the 

proposed rule. The water quality 

standrds program, because it requires 

standards to be reviewed on a triennial 

basis, can require substantial annual 

resource commitments. 

For example, EPA is currently 

developing additional proposed 

amendments to the water quality 

standards regulation to require. triennial 

review and adoption of necessary 

numeric water quality criteria for toxic 

pollutants and, ultimately criteria based 

on biological measures of water body 

health. Tribes that qualify for treatment 

as States will be subject to the existing 

requirements as well as these new 

requirements which will be added to 

section 131 in the near future. 

EPA did not, therefore, remove from 

the rule the requirement for a Tribe to 

address how it will obtain the funds 

necessary to acquire the administrative 

and technical expertise if not currently 

available. EPA believes this to be a 

necessary and important showing in 

support of the overall capability 

demonstration. EPA notes that Tribes 

may wish to apply for CWA section 106 

funds to support their water quality 

standards programs and include this 

source in any discussion of funding 

sources under § 131.8(4)(v). 

Comment: The discussion of 

capability requirements included in the 

preamble to the proposed regulation 

included a statement that qualifying for 

the standards program has no bearing 

on the ability of the Tribe to receive a 

section 106 grant. A comment was 

received that a Tribe was told by EPA 

that it had to apply for treatment as a 

State in order to be eligible for the 

section 106 program grants. 

Response: The commenter 

misunderstood the discussion. To 

receive a CWA section 106 program 

grant, a Tribe must qualify for treatment 

as a State for purposes of the section 106 

program. Interim final rules specifying 

how tribes may qualify for the section 

106 program were promulgated by EPA 

·On April11, 1989 (54 FR 14357) and are 

now-codified in 40 CFR parts 35 and 130. 

The preamble discussion simply 

indicated that a Tribe does not have to 

also qualify for the standards program 

in order to receive a section 106 program 

grant and noted that, in fact, prior 

acquisition of such grants may be quite 

useful to Tribes in developing the 

capabilities needed to qualify for the 

standards program. 

Comments on the Complexity of the 

Process 

Comment: A variety of comments 

were received concerning the process 

EPA has established by which a Tribe 

may qualify for treatment as a State 

under both the Clean Water Act and the 

Safe Drinking Water Act. This process is 

described in § 131.8 of the rule and 

covers the requirements for Indian 

Tribes to be treated as States for 

purposes of water quality standards. 

Various comments indicated that the 

process was too lengthy, cumber11ome, 

and expensive for the Tribes. Some 

commenters suggested that EPA should 

separate'the legal and programmatic 

requirements to allow Tribes to meet the 

legal requirements for all CWA 

programs with one application. In 

general, commenters suggested that the 

process be streamlined to pose less of a 

burden to Tribes wishing to qualify. 

Response: No changes were made in 

the regulation to streamline or otherwise 

alter the § 131.8 requirements (with the 

exception of those previously discussed 

in section B-Changes to the Proposed 

Rule). 

EPA has developed one procedure 

applicable to all water programs. To 

have a different procedure for the 

standards program would not in the 

Agency's view simplify the process: 

rather it would confuse matters. 

Experience with the initial applications 

.in other programs indicate some delay 

in the process but EPA believe that is 

more because the process is new to both 

EPA and the Tribes rather than because 

of any inherent fault in the procedure. It 

is expected that as both parties gain 

more experience, such delays will be 

minimal. If a Tribe has already 

submitted an application for treatment 

as a State for another program, very 

little if any new information beyond the 

request for consideration in the 

standards program needs to be 

provided. 

Because some programs that 

potentially may be assumed by Tribes 

under the Clean Water Act may require 

specialized information relating to 

Tribal authorities or capability to 

administer an effective program, the 

Agency decided previously to today's 

rule not to allow Tribes to qualify for 

treatment as a State for all CWA 

programs in a single application. 

However. as stated above, the Agency 

intends to minimize the impact on a 

Tribe for qualifying for treatment as a 

State for various programs by having 

Tribes submit the basic application once' 

and only submit any additional 

information that might be required for 

treatJ:nent as a State for another 

program. In the case of this rule, § 131.8 

(b)(iv) and (v) are the provisions which 

EPA believes are most likely to require 

information in addition to what is 

typically submitted with applications for 

other programs. The two items are the 

name of the agency of the Indian Tribe 

charged with establishing, reviewing, 

implementing and revising water quality 

standards and a description of the 

Tribe's technical expertise to administer 

and manage the program or a plan on 

how the Tribe intends to acquire such 

expertise. Section 131.8 (b)(6) of the rule 

clearly establishes that in seeking 

qualification as a State, "* • • the 

Tribe need only provide the required 

information which has not been 

submitted in a previous treatment as a 

State application." 

The procedure adopted in today's rule 

was publicly debated in a rule made 

final under the Safe Drinking Water Act. 

Comments on the proposal and changes 

made may be seen at 53 FR 37408, 

September 26, 1988, and now codified in 

40 CFR part 142. This regulation reflects 

the procedures established as a result of 

that rulemaking. 

Comment: Several comments asserted 

. that the regulation has redundant and 

unnecessary requirements, for example 

that § 131.8(b )(2)(iii) duplicates 

131.8(b)(3)(iii) and 131.8(b)(4)(iii), that 

131.8(b)(3)(ii) duplicates 131.8(b)(iii), and 

finally that 131.8(b)(iv) duplicates 

131.8(b)(3)(1) . 

Response: While the Agency concurs 

that the information in 131.8(b)(2)(iii) is 

related to that in parts 131.8(b )(3)(iii) 

and 131.8(b)(4)(iii), it is not necessarily 

redundant or duplicative. Experience 

with the standards program with the 

States has shown that often the 

administrative and management 

functions of the standards program are 

split among various State offices and 

branches of government. Since this may 

also hold true for Tribal governments, 

EPA has maintained the requirements as 

proposed. However, if the Tribe can 

cover the requested information in a 

single response to the Agency, EPA 

encourages the Tribe to do so. The 

independent regulatory requirements 

were maintained not to force Tribes to 

duplicate information but to ensure that 
64884 Federal Register I Vol. 56, No. 239 I Thursday, December 12, 1991 I Rules and Regulations 

all information necessary is submitted. 

In response to a specific comment, EPA 

notes that submittal of the required 

"sources of authority" under 

§ 131.8(b)(2)(iii) does not require the 

same level of detail as the 

demonstration of authority required 

under§ 131.8(b)(3) and, in general, a 

brief statement and reference to the 

assertion of authority under§ 131.8(b)(3) 

will be sufficient. 

The Agency reviewed all the 

referenced paragraphs and does not see 

that the requirements are either 

redundant or unnecessary. While they 

may be related, each requests a different 

piece of information EPA believes is 

necessary to make an informed 

judgment on the Tribal application. 

Again, however, if the Tribe covers 

more than one item in a portion of its 

application, EPA does not see any need 

for the Tribe to repeat the information- a reference to where EPA may find the 

information elsewhere in the Tribal 

application is acceptable. 

Comments on the Procedure for 

Reviewing Tribal Applications 

Comment: Several comments were 

received on the opportunity provided to 

States to review Tribal assertions of 

authority (see § 131.8(c)). Various 

commenters believed this provision to 

be inappropriate because, for example, 

Tribes do not review State applications 

for primacy, States have already 

established their authority in their 

primacy applications, and the review is 

inconsistent with EPA's Indian policy. 

Other comments suggested that States 

comment along with everyone else 

during a general public comment period. 

Response: The comments which 

suggested that States should not be 

allowed to review Tribal assertions of 

authority because Tribes do not review 

State applications for primacy appear to 

mix primacy requirements under the 

Safe Drinking Water Act or other CWA 

programs (such as section 402 NPDES or section 404 dredge and fill) with those 

established under Clean Water Act 

section 303. CWA section 303, under 

which this rule is promulgated, directs 

States to adopt water quality standards. 

There is no application process 

involved, nor is participation by the 

States optional. However. Indian Tribes, 

under CWA section 518, must go through 

a process to qualify for treatment as States. 

The provision allowing participation 

by other governmental entities in EPA's 

rev.iew of Tribal authority does not 

imply that States or Federal agencies 

(other than EPA) have veto power over 

Tribal applications for treatment· as a 

State. Rather, the procedure is simply 

intended to identify any competing 

jursidictional claim and thereby ensure 

that the Tribe has the necessary 

authority to administer the standards 

program. The Agency will not rely solely 

on the assertions of a commenter who 

challenges the Tribe's assertion of 

authority; EPA will make an 

independent evaluation of the Tribal 

showing and all available information. · In addition, the provision allowing 

appropriate governmental entities to 

comment on Tribal assertions of 

authority is not intended as a barrier to 

Tribal program assumption. As stated· in 

the preamble to the proposed 

rulemaking, where disputes regarding 

Tribal authority are focused on a limited 

area, this will not necessarily delay the 

Agency's decision for to treat the Tribe 

as a State of the non-disputed areas. Comment: Several commenters 

suggested that EPA should provide more definition regarding the "governmental 

entities" which will be provided notice 

and an opportunity to comment on the 

Tribe's assertion of authority (see 

§ 131.8(c){2)). 

Response: EPA defines the phrase 

"governmental entities" as States, 

Tribes, and other Federal entities 

located contiguous to the reservation of 

the Tribe which is applying for 

treatment as a State. Such 

· "governmental entities" will provide up 

to 30 days to comment on Tribal 

assertions of authority. Neighboring 

Tribes will be treated as "governmental 

entities" regardless of whether the 

neighboring Tribe is treated as a State 

for purposes of section 303. Where such 

governmental entities are States, EPA 

intends to provide notice and an 

opportunity to comment to the most 

appropriate State contacts which may 

include, for example, the Governor, 

Attorney General, or the appropriate 

environmental agency head. The rule 

limits the Agency to only considering 

comments from such "governmental 

entities." Local governments such as 

cities and counties or other local 

governments are not included in the 

definition of "governmental entities," 

and EPA will not consider comments 

received from such governments in 

reviewing Tribal assertions of authority. 

EPA recognizes that city and county 

governments which may be subject to or 

affected by Tribal standards may also 

want to comment on the Tribe's 

assertion of authority. Although EPA 

believes that the responsibility to 

coordinate with local governments falls 

primarily upon the State, the Agency 

will make an effort to provide notice to 

local governments by placing an 

announcement in appropriate 

newspapers. Since the rule limits EPA to 

considering comments from 

governmental entities, such newspaper 

announcements will advise interested 

parties to direct comments on Tribal 

authority to appropriate State 

governments. 

The process of notifying States and 

Tribes and consulting with the 

Department of Interior, as delineated in 

this and other EPA regulations 

implementing the Clean Water Act and 

the Safe Drinking Water Act, was and is 

intended merely to assist the Agency in 

making its determination whether a 

Tribe has adequate authority to justify 

treatment as a State by EPA. Such 

notification and consultation procedures 

were not and are not intended to 

establish any form of adjudication or 

arbitration process to resolve 

differences between State and Tribal 

governments. Rather, EPA has a duty to 

determine whether a Tribe has adequate 

authority, as defined by federal law and 

EPA policy, to carry out the grant or 

program under consideration. The 

notification and consultation procedures 

assist EPA in making this determination 

by providing information and 

perspectives from the points of view of 

neighboring Tribal and State 

governments and the federal agency 

having extensive expertise in federal 

Indian law. 

Comment: It i8 unlawful to limit public 

comment to just the Tribal 

demonstration of authority. Section 

131.8 should allow public review of all 

four statutory criteria. 

Response: CWA section 518 provides 

EPA with the authority to determine 

whether Indian Tribes are qualified to 

be treated as States. The CWA does not 

require EPA to provide for public 

comment on Tribal applications. For 

three of the criteria which Tribes must 

meet, EPA believes that the Agency will 

be able to make appropriate 

determinations absent any public 

comment. EPA believes that providing 

for public comment on these three 

criteria would unnecessarily complicate 

and potentially delay the process. For 

the authority criterion, EPA has 

provided for a 30 day comment period 

by appropriate governmental entities 

because the Agency believes that it will 

be important·to gather all available 

information regarding Tribal authority 

prior to making a determination. EPA 

believes that providing for comment on 

the authority criterion is appropriate 

because this is the only criterion which 

outside comments might help to address. 

Comment: Several comments pointed 

out that the proposal did not specify in 

any detail the procedure by which EPA· 

will consult with the Secretary of the 
Federal Register I Vol. 56, No. 239 I Thursday, December 12, 1991 I Rules and Regulations 64885 

Interior in making a determination 

concerning challenges to a Tribe's 

assertion of authority (see § 131.8(c)(4)). 

It was suggested that the consultation 

process should provide for notice and 

opportunities for input (e.g., a hearing) 

to affected Tribes and States. 

Response: EPA did not make changes 

to the proposed rule in response to these· 

comments. However, subsequent to 

publishing the proposed rule EPA did 

reach agreement with the Department of 

the Interior regarding the procedures for 

conducting such consultations. The 

procedure established as the Secretary 

of the Interior's designees the Associate 

Solicitor, Division of Indian Affairs and 

the Deputy to the Assistant SecretaryIndian Affairs (Trust and Economic 

Development). EPA will forward a copy 

of the application and any documents 

asserting a competing or conflicting 

claim of authority to such designees as 

soon as possible. For most applications, 

an EPA-DOl conference will be 

scheduled from one to three weeks after 

the date the Associate Solicitor receives 

the application. Comments from the 

Interior Department will be primarily a 

discussion of the law applicable to the 

issue to assist EPA in its own 

deliberations. Responsibility for legal 

advice to the EPA Administrator or the 

other EPA decision makers will remain 

with the EPA General Counsel. EPA 

does not believe that the consultation 

process with the Department of Interior 

should involve notice and opportunities 

for input by States and Tribes because 

such parties are elsewhere provided 

appropriate opportunties to participate 

in EPA's review of Tribal authority. 

Comment: Several comments 

suggested that, once EPA makes a 

determination regarding a Tribal 

application, EPA should provide notice 

of its decision to State, Tribal, and local 

governments and all commenters on the 

Tribal assertion of authority, and should 

publish a lists of Tribes treated as States 

in the Federal Register. 

Response: EPA will take all 

reasonable means to advise interested 

parties of the decision reached regarding 

challenges to Tribal assertions of 

authority. At least, written notice will be 

provided to State(s) and other 

governmental entities sent notice of the 

Tribal application. In addition, the 

current water quality standards 

regulation (40 CFR part 131) requires 

that EPA annually publish a list of 

standards approval actions taken within 

the preceding year. EPA will expand 

that listing to include Indian Tribes 

qualifying for treatment as States in the 

preceding year. 

Comment: EPA should clarify what 

happens if a Tribe is denied treatment 

as a State (§ 131.8 (c)(5)). Related 

comments indicated that it would be 

unfair to withdraw treatment as a State 

for failure to develop standards (or for 

any other reason) because States 

received unlimited assistance, both 

technical and dollars, and that 

withdrawal of recognition is counter to 

the Congressional mandate. Opposing 

views were offered that there should be 

a provision to withdraw recognition as a 

State from a Tribe. 

Response: Rather than formally deny 

the Tribe's request, EPA will continue to 

work cooperatively with the Tribe in a 

continuing effort to resolve deficiencies 

in the application or the Tribal program 

so that Tribal recognition as a State may 

occur. EPA also concurs with the view 

that the intent of Congress and the EPA 

Indian Policy is to support Tribal 

governments in assuming authority to 

manage various water programs. As 

previously discussed in the response to 

comments on the capability criterion, no 

provision allowing EPA to withdraw a 

treatment as a State determination was 

added to the regulation. Authority 

already exists for EPA to re-assert 

control over certain water programs due 

to the failure of the State or Tribe to 

properly execute the programs. 

Specifically, in the water quality 

standards program, the Administrator 

has authority to promulgate Federal 

standards. Therefore, no change was 

needed in the regulation. 

Comment: A number of comments 

suggested that EPA specify a timeframe 

or change the timeframe associated with 

the various steps in the application 

review procedure(§ 131.8(c)). 

With regard to the review of the 

Tribe's assertion of authority (see 

§ 131.8(c)(3)), various comments 

supported shortening the review period, 

lengthening the review period, and also 

adding a provision allowing an 

extension to .the review period. 

With regard to final determinations 

(see § 131.8(c)(5)), several comments 

suggested that EPA should complete its 

review and respond to Tribes within 60 

days after receipt of an application. 

Other comments suggested that EPA 

should conduct a completeness review 

within 30 days of receipt of a Tribal 

· application. In general, a number of 

comments advocated some time limit 

within which EPA would be required to 

complete the review process. 

Response: No timeframes in the 

review procedure were changed in the 

regulation in response to comments. The 

time frames assigned are consistent with 

regulations promulgated for other EPA 

Water programs. Because EPA has no 

reasonable way to predetermine how 

complete initial applications for 

treatment as a State might be, what 

challenges might arise or how numerous 

or complex the issues might be, the 

Agency deems it inappropriate to 

attempt to establish timeframes that 

may not allow sufficient time for 

resolution. Also, several of the 

comments appear to be based on early 

experience with the "treatment as a 

State" process. EPA believes that as 

both Tribes, States, and EPA become 

more familiar with working together that 

the delays associated with approval of 

early applications will cease. Thus, EPA 

believes it unnecessary to establish 

additional deadlines in the regulation. 

Other Comments on Treatment of Tribes 

as States 

Comment: Several commenters 

suggested that, as part of the treatment 

as a State process, EPA require Indian 

Tribes to protect constitutional rights of 

non-Tribal members, that Tribes waive 

their sovereign immunity, and provide 

for voting rights for non-members. 

Response: EPA notes that 

constitutional rights of both Indians and 

non-Indians exist without explicit 

recognition in a Federal regulation. The 

regulation provides a mechanism for a 

Tribe to demonstrate that it meets the 

criteria of CWA section 518(e). EPA 

believes it is inappropriate to consider 

any other factors. The issues raised by 

these comments are far beyond the 

purview of EPA. Such issues must be 

properly dealt with in the Courts or by 

Congress. 

Comment: EPA should make clear that 

qualification for treatment as a State 

under one program is not dispositive for 

applications under other programs. 

Response: That is the correct 

interpretation of this rule. As discussed 

previously, however, EPA expects that 

once a Tribe has qualified for one 

program, the key step toward 

assumption of other programs, in most 

cases, will be demonstrating appropriate 

capability. 

2. Dispute Resolution Mechanism 

Comments on CWA Section 510/EPA 

Authority 

Comment: In the proposed rule, EPA 

announced its tentative determination 

that the provisions of section 510 of the 

CWA apply with equal force to water 

quality standards adopted by both 

States and Tribes, that is, nothing in the 

Act precludes either a State or a Tribe 

from adopting water quality standards 

more stringent than required by the Act. 

EPA expressed its view that, because of 

section 510, it may not disapprove either 

Tribal or State standards solely on the 
64886 Federal Register .1 Vol. 56, No. 239 I Thursday, December 12, 1991 I Rules and Regulations 

grounds that the standard is too 

stringent, nor may it resolve a standards 

"dispute" by disapproving either a 

Tribal or State standard and Federally 

promulgating a less stringent standard. 

Tribal commenters supported EPA's 

interpretation of the effect of section 510 

on standards adopted by Tribes treated 

as States. State commenters disagreed 

with EPA's reading. In essence, these 

commenters argue that because section 

510 is not one of those mentioned in 

section 518(e)(2) (which lists the 

sections of the CWA for which EPA is 

authorized to treat Tribes as States), 

EPA is precluded from reading section 

510 as applying to standards set by 

Tribes. Therefore, Tribes may not set 

standards more stringent than required 

by section 303. 

Response: EPA disagrees that the 

statute should be read in such a crabbed 

manner. A careful examination of the 

CWA sections referenced in section 

518(e)(2) reveals that all of these 

provisions are CWA regulatory program 

elements or grant authorizations that are 

implemented by/funded for States. The 

sections of the CWA not mentioned in 

518(e)(2), with very few exceptions, 

either do not involve States or are grant 

programs which have expired long ago.2 

Indeed, section 510 is virtually the only 

provision of the CWA that discusses a 

role for State governments that is not a 

regulatory program provision or grant. 

Section 510 is instead a savings 

provision that indicates that existing 

State authority to regulate effluent 

discharges and/or set water quality 

standards is not preempted by the 

CWA, as long as the State standards/ 

regulations are at least as stringent as 

required by the CWA. Thus, EPA does 

not believe that the failure of section 

518(e)(2) to reference section 510 is 

conclusive. 

Indeed, EPA believes that section 

518(e) and its accompanying legislative 

history suggests that Congress intended 

for section 510 to apply to Tribes treated 

as States. For instance, Senator Burdick, 

a member of the Conference Committee 

on the Water Quality Act of 1987, stated 

that: 

The intent of the conferees was to assure that 

Indian tribes would be able to exercise the same regulatory jurisdiction over water 

quality matters with regard to waters within 

Indian jurisdiction that States have over their 

water. The conferees believe that tribes 

should have the primary authority to set 

water quality standards to assure fishable 

2 One notable exception is section 405, which 

establishes a Federal/State permit program for the 

disposal of sewage sludge. EPA has already 

determined that it is appropriate to treat Tribes as 

States for purposes of sludge programs, despite the 

omission of section 405 from section 518(e)(2). 

and swimmable water and to satisy all 

beneficial uses. The act also provides a mechanism for resolving any conflict 

between tribal standards and upstream uses 

or activities. 

133 Cong. Reg. S 1018 (daily ed. Jan 21, 

1987) (emphasis added). Were Tribes 

prohibited from establishing standards 

more stringent than minimally 

approvable by EPA, there would be little 

need for the dispute resolution 

mechanism required by section 518(e)(2) 

and established by today's regulation. 

EPA also believes there are strong 

policy reasons to allow Tribes to set any 

water quality standards consistent with 

40 CFR 131.10. First of all, it puts Tribes 

and States on an equal footing with 

respect to standard setting. There is no 

indication that Congress intended to 

treat Tribes as "second class" States 

under the CWA. Furthermore, treating 

Tribes as essentially equivalent to 

States is consistent with EPA's 1984 

Indian Policy. Third, EPA believes it 

would be unfeasible to require Tribes to 

adopt the "minimum" standards allowed 

under Federal law. EPA has developed 

water quality criteria under the 

authority of section 304(a) of the CWA; 

these criteria, however, are only 

guidance for use by States in developing 

their own standards. The Federal 

recommendations are not enforceable 

absent State or Federal water quality 

standards implementing them under 

section 303. EPA has no procedures in 

place for defining a "minimum" level of 

standards beyond which a Tribe would 

not be allowed to go. 

For all these reasons, EPA believes its 

interpretation of section 510 is 

reasonable and fully consistent with the 

legislative intent of Section 518. 

Comment: EPA specifically invited 

comments regarding whether the 

·Agency should attempt to establish 

scientific factors by which overlystringent water quality criteria may be 

identified. EPA requested comments on this issue to address a pre-proposal 

comment that, CWA section 510 

notwithstanding, EPA has the author.ity 

to disapprove overly stringent water 

quality criteria as a means of resolving a 

dispute between a State and a Tribe. 

Numerous comments were received 

on this topic. Various commenters 

suggested that proposed water quality 

standards/criteria should not be 

considered scientifically defensible and 

thus should be disapproved when: (1) 

The controls necessary to meet the 

specified levels are not cost-effective, (2) 

the resulting effluent limits are beyond 

existing technology to measure or treat, 

(3) the criteria are based on inadequate 

data, (4) the criteria are more stringent 

than necessary to meet designated uses, 

and (5) the criteria are more stringent 

than natural background water quality. 

Other commenters were vigorously 

opposed to any effort by EPA to restrict 

Tribal adoption of numeric criteria more 

stringent than required to meet the 

CWA's fishable and swimmable goals. 

A numbe'r of these comments asserted 

that Indian Tribes have legitimate needs 

to set criteria more stringent than State 

criteria and/or criteria required by the 

CWA (e.g., because of cultural/religious 

needs, because some Tribal members · 

have high fish consumption rates, etc.). 

Several commenters pointed out that 

Tribes do not use cultural and religious 

needs to obtain political or economic 

ends and that, in fact, Tribes tend to be 

reluctant to deal in public arenas 

regarding cultural and religious needs. 

EPA notes that most comments which 

opposed setting limits on the stringency 

of Tribal criteria nevertheless also 

asserted that all criteria must be 

scientifically defensible and not more 

stringent than natural background water 

quality. 

Response: EPA has made no changes 

to the proposal. As discussed in the 

preamble discussion to the proposal. 

EPA's water quality standards 

regulation already requires that criteria 

, be developed based on scientifically 

defensible methods. EPA also does not 

advocate the adoption of water quality 

criteria more stringent than natural 

background water quality. However, 

EPA believes that criteria sufficiently 

stringent to meet the fishable and 

swimmable goals may not be 

disapproved under the CWA, on the 

grounds that such criteria are more 

stringent than natural background water 

quality. This belief is premised on the 

Agency's legal interpretation of CWA 

section 510 (discussed above). Thus. 

EPA does not require justification or 

other evaluation of the scientific merit of 

criteria which, based on a comparison 

with EPA's CWA section 304(a) criteria 

recommendations, meet or exceed levels 

of water quality necessary to support 

the fishable and swimmable goals. 

In response to the comments 

suggesting that EPA may disapprove 

criteria based on economic and/or 

technological achievability factors. EPA 

notes that CWA section 303 explicitly 

requires that criteria be developed to 

support designated uses. Consideration 

of cost-effectiveness and achievability 

cannot override this requirement. Under 

the CWA, economic factors may be 

considered in conjunction with 

designating appropriate water uses. 

In reviewing water quality standards 

submitted by States and Tribes, EPA 

will continue to evaluate the adequacy 
Federal Register I Vol. 56, No. 239 / Thursday, December 12. 1991 I Rules and Regulations 64887 

·of numeric criteria. Where EPA 

determines that such criteria are 

substantially more stringent than 

necessary to meet the fishable and 

swimmable goals of the CWA and are 

more stringent than presently existing 

water quality conditions, EPA will 

advise the State or Tribe, and affected 

adjacent States or Tribes of this finding. 

EPA will use best professional judgment 

to make such determinations. Such 

determinations will not be grounds for 

disapproval because, as explained 

above, EPA does not beHeve the Agency 

has the legal authority to disapprove a 

State or Tribal water quality criterion 

solely on the basis that EPA considers 

the standard to be more stringent than 

required by the Act. 

Comment: EPA should set a time limit 

(e.g., 12 months. 18 months) after receipt 

of the request for dispute resolution 

within which a mutually acceptable 

agreement must be reached via either 

mediation or arbitration(§ 131.,(£) (1) 

an~ (2)). If after 18 months the parties do 

not seem close to an agreement the 

Agency should act to resolve the 

dispute. EPA has the authority to act in 

some situations (e.g.. where an upstream 

discharger is violating the water quality 

standards in a downstream jurisdiction). 

Lack of time tables may allow disputes 

to continue for indefinite periods of time 

and to be intentionally prolonged by 

uncooperative parties. 

Response: No time limit was added to 

the rule. While EPA intends to proceed 

as quickly as possible and to encourage 

the parties to the dispute to resolve it 

quickly and to establish informal time 

frames. the variety of potential disputes 

to be resolved would appear to preclude 

EPA specifying a single regulatory time 

limit. It is expected that some disputes 

will be resolved very quickly while 

others may take longer than the 

suggested 18 months. EPA believes it is 

better to obtain a reasonable 

agreement/decision than to arbitrarily 

establish a time frame within which an 

agreement/ decision must be made. 

EPA notes that the dispute resolution 

mechanism included in today's rule 

provides the Regional Administrator 

with several alternative courses of 

action. EPA believes that having a 

variety of alternative options may help 

to prevent delays because the Regional 

Administrator will be able to select the 

option most appropriate to the task and. 

where necessary, proceed from one 

option to another to conclude a dispute 

resolution action in a timely manner. An 

example would be where an arbitration 

panel is unable to reach a unanimous 

finding. In such a situation the Regional 

Administrator may. after a reasonable 

period of time, direct the panel to issue a 

nonbinding decision by majority vote. 

EPA also believes that specifying such 

a time limit would be ineffective in 

those cases where at the end of the time 

limit the Agency would have insufficient 

authority to "act to resolve that 

dispute,'' because ofCWA section 510 

which, as discussed above, would 

prohibit EPA from disapproving. 

standards solely on the basis that EPA 

considers the standard to be more 

stringent than required by the Act. 

In some cases, EPA recognizes that 

the Agency will have authority to "act to 

resolve the dispute." An example would 

be a situation where a National 

Pollutant Discharge Elimination System 

(NPDES) permit for an upstream 

discharger does not provide for the 

attainment of the water q'uality 

standards for a downstream jurisdiction. 

EPA notes that the existing NPDES 

permitting and certification processes 

under the CWA may be utilized by the 

downstream jurisdiction to address such 

situations. and that today's rule does not 

alter or minimize the role of these 

processes in establishing appropriate 

permit limits that ensure attainment of 

water quality standards. States. and 

Tribes are encouraged to participate in 

these permitting and certification 

processes rather than to wait for 

unreasonable consequences to occur. 

In such cases. as was asserted in the 

proposal, EPA believes that.the Agency . 

has the authority to object to the 

upstream NPDES permit and, if 

necessary, to aSBUme permitting 

authority. This authority was upheld in 

a case in which EPA assumed authority 

to issue a permit for a North Carolina 

discharge that, among other factors, did 

not meet Tennessee's downstream 

water quality standards (Champion 

International Corp. v. EPA. 850 F .Zd 182 

(4th Cir. 1988}). 

EPA also anticipates that many of the 

disputes which will require EPA dispute 

resolution under 131., of today's rule 

will arise over such situations (i.e., in 

which an upstream discharge is creating 

alleged unreasonable consequences in a 

downstream jurisdiction). EPA 

recognizes that such situations are likely 

to occur, and that not all such situations 

are likely to be resolved to the 

satisfaction of all parties during the · permit issuance and certification 

processes. 

Where such cases proceed to dispute 

resolution, the Agency's first course of 

action will be to conduct a dispute 

resolution action as provided in 131.7 of 

today's rule and required by CWA 

section 518. In situations where the , 

dispute resolution action does ~ot result 

in a satisfactory. agreement or other 

resolution (e.g., the upstream jurisdiction 

agrees to revise the limits of the permit), 

EPA would then give due consideration 

to any possible further Agency actions, 

·where authorized by the CWA. 

Comment: Several commenters 

supported EPA's statement that the 

Agency does not have the authority to 

compel parties to enter binding 

arbitration. 

Response: EPA agrees with these 

comments and has retained the 

proposed language making entry into 

binding arbitration strictly a voluntary 

act. 

Comments on the Selection of 

Mediators/ Arbitrators 

Comment: Both Tribes and States 

should have the opportunity to approve 

8 mediator/arbitrator and to remove 

anyone showing bias. 

Response: Section 131.,(£)(2) was 

modified (as discussed in section BChimges to the Proposed Rule) to 

provide that arbitrators and arbitration 

panel members shall be selected to only 

include individuals that: (1) Are 

agreeable to all affected parties, {2) are 

knowledgeable concerning the 

requirements of the water quality 

standards program, (3) have a'basic 

understanding of the political and 

economic interests of Tribes, and (4} is 

expected to fulfill the duties fairly and 

impartially. No such provision is 

included in§ 131.,(£)(1) dealing with 

mediation. EPA did not provide for 

Tribal approval of mediators because: 

(1} EPA believes that such an approval 

process would provide too great an 

opportunity to delay the initiation of the 

mediation process. and (2) the role of 

the mediator is limited to acting as a neutral facilitator. That is significantly 

less of a role than being an arbitrator or 

member of an arbitration panel. 

There is no prohibition against the . 

Regional Administrator consulting with 

the parties regarding a mediator; there is 

just no requirement to d.o so. Although 

not specifically covered in the rule, EPA 

believes it is well within the powers of 

the Regional Administrator to remove 

any mediator or arbitrator for any 

reason including showing bias or 

unfairness, or taking illegal/unethical 

actions. 

Comment: EPA should clarify how its 

Indian Policy, which is to give special 

consideration to Tribal interests. wiU 

affect its role in dispute resolution 

actions (see § 131.7lfl(ii)). 

Response: EPA believes that its role in 

dispute resolution is to work with all 

parties to the dispute in an effort to 

reach an agreement that resolves the 
·.·. ,·64888 federal.Regis.ter /-Vol..56,:No •. 239 f: Thursday, December 12,:1991/ Rul_es•and-Regtilations '!,.'.r 

dispute. The Agency shall not have a . The default procedure is simply the dispute resolution action [see · 

predisposition to support any party's Agency reviewing available information § 131.7(b)(1)): . 

position in disputes over water quality and· issuing a recom.mendation for· · Response: EPA has not defined•this 

standards. Rather, EPA employees resolving the dispute. EPA's term i_ri the regulatory language. rhere . 

serving as mediators or arbitrators will recommendation In this situation would'.· are several rea'sonsfoi' this'including: [1) 

serve outside the normal Agency chain · . have no enforceable impact. It is hoped· It W:ould be a presumptuous arid · 

of c'ommand and are expected to act in a· that by publicly presenting an Agericy unjustified Federal intrusfon into local 

neutral fashion. EPA notes that position that either through public and State concerns for EPA to define 

§ 131.7(f)(1)[i) specifies that: pressure or reconsideration by either of what an unreasonable c~msequerice . 

Where the State and Tribe agree to 

participate in the dispute resolution process, 

mediation with the intent to establish TribalState agreements. consistent with the Clean 

Water Action section 51{!( d), shall normally 

be pursued as a first effort. 

Although EPA believes that Tribes 

should be provided every opportunity to 

regulate water quality and to participate 

in environmental control programs, 

during dispute resolution actions the 

appointed mediator/arbitrator will act 

first and foremost as a neutral facilitator 

of discussions between parties. 

Comments on the Default Procedure 

Comment: Several comments were 

received recommending that EPA should 

clarify the default procedure in 

§ 137.7(£)[3). For example, comments 

were received suggesting that EPA 

explain: [1) When it will be used, [2) 

how the procedure will help resolve 

disputes, (3) who will receive the 

Agency's recommendaUon, and [4) that 

the Agency will first encourage 

participation by all parties and use the 

default procedure only as a last resort. 

One comment suggested that the default 

procedure should be deleted because it 

_ would provide a means for any party to 

exclude itself from the resolution 

process. 

Response: EPA intends that the 

default procedure come Into play only 

as a last resort, after all other avenues 

of resolving the dispute have been 

exhausted. EPA believes that no change 

to the regulation is needed to reflect this 

intent. Section 131.7(f)(1)(i) already 

indicates that where the State and Tribe 

agree to participate, mediation shall be 

pursued as a first course of action. EPA 

also notes that § 131.7(£)[3) provides that 

the default procedure may only be used 

where one or more parties refuse to 

participate in either mediation or 

arbitration. 

Since EPA believes it does not have 

the authority to force a Tribe or State 

into arbitration or mediation, or to 

overrule either a State or Tribe which 

adopts standards that are more stringent 

than necPssary to meet the requirements 

of the Act, EPA developed this default 

procedure as a ineans to place before 

the public an Agency position/·· · 

recommendaton regaruing resolution.· 

the affected parties that negotiations to ' might be as a basis for a national rule, 

resolve the dispute may continue. The · (2) EPA does not want to un·necessarily 

provision as written clearly articulates . narrow the scope of problems to be 

that the default procedure is a last . ' ' addressed by the dispute resolution 

resort. Any written recommendation mechanism, and [3) the possibilities of 

emanating from this process would be what might constitute an unreasonable 

provided, at least, to all parties to the consequence are so numerous as to defy 

dispute. EPA sees no need to alter the a logical regulatory requirement. As 

rule or to delete the default procedure. stated in the preamble to the proposed 

Comments on Definitions Used in the rule, what might be viewed as an 

Dispute Resolution Mechanism unreasonable consequence on a stream 

segment in a large, relatively 

Comment: With regard to the question unpopulated, water' poor area with a 

of who should be parties to the dispute single discharge would likely be viewed 

resolution process(§ 131.7(g)[2)) EPA quite differently in or near an area 

received diametrically opposed characterized by numerous discharges 

comments. Some comments suggested ·and/or large water resources. EPA 

that EPA clarify that any person with a believes the Regional Administrator 

. vested property interest must be a should retain discretion to decide when 

required party to the dispute resolution the consequences warrant initiating a 

process while others suggested that EPA dispute resolution action. 

should limit the definition of parties to 

just the State and Tribe. Also, a Comments on the Conditions Requiring 

comment was made that EPA should EPA Dispute Resolution 

segregate the role of government · Comment: A statement is needed on 

regulators from that of permittees in the the criteria a Regional Administrator 

dispute resolution process. can use in denying a requ~st for EPA 

Response: EPA does not concur with dispute resolution. 

either view and retained the provision Response: Section 131.7 [b), (c), and 

that the Regional Administrator may (d) describe the basis upon which a . 

include other parties besides Tribes and dispute may be initiated, the 'procedure 

States in the process. As stated in the for filing a request to initiate EPA 

preamble to the proposal, EPA believes action, and notice of the EPA decision to 

that in some cases, inclusion of .. initiate a resolution action. The basis for 

permittees or landowners subject to denying a request would be that the 

non-point source restrictions may be requesting party is not able to fulfill any 

needed in order to resolve certain or all of the requirements established in 

disputes. EPA notes that, in many cases, § 131.7 (b) or (c). This was clear in the 

nonpoint source control actions (which proposed rule and EPA has made no 

may be necessary to implement a change. 

resolution to a dispute) are voluntary on Other Comments on the Dispute 

the part of landowners. However, EPA Resolution Mechanism 

believes that the Regional Administrator 

should retain discretion to decide when Comment: Section 131.7(b)(2) limits 

to include parties other than the Tribe the dispute resolution mechanism to a 

and State. Only the Tribe and State are dispute between Tribes and States. A 

in a position to implement a change to comment was received that this should 

water quality standards, and are thus be expanded to cover disputes between 

the only parties which must be included two Tribes [or, by extension) between 

in all dispute resolution actions. two States. 

However, other parties may be included Response: The rule was written in this 

in certain cases upon a determination by · manner because section 518 of the Clean 

the Regional Administrator. EPA notes Water Act specified that a dispute 

that formal requests for a dispute resolution mechanism be developed to 

resolution action may only be made by a ·resolve disputes arising between a Tribe 

State or Tribe (see § 131.7(c)). and a Stale.' EPA believes that the 

Comment: EPA should define requirement that Stat(!'standards . 

"unreasonable consequences" as it is a provide for the i>rotection of · required condition for initiating a " downstream standards in§ 131.10(b) of 
Federal Register / Vol; 56, No. 239 / Thursday, December 12, 1991 l Rules ;and Regulatioqs ; .64889 

the water quality standards regulation, 

supported by a 25 year history of 

informal negotiation of issues between 

States, provides sufficient basis for 

resolving disputes between two States 

or two Tribes. That informal process 

was described in the response to public 

comments on the basic standards 

regulation (48 FR 51400 and 51412, 

November 8, 1983). 

Comment: What is the basis for 

requiring EPA approval of any StateTribal agreement to resolve:disputes 

under § 131.7(e)? ' 

Response: EPA is charged with the 

responsibility of reviewing and either 

approving or disapproving State or 

Tribal-adopted standards as being 

consistent with the requirements of the 

Clean Water Act. Since EPA 

recommends that such agreements be 

entered into as a basic means of 

resolving disputes, that such agreements 

must comport with the requirements of 

the Act, and that the result of such 

agreements likely will influence 

standards, it appears necessary that the 

Agency approve such State-Tribal 

agreements. Also, the Act provides in 

section 518(d) that Tribal/State 

agreements in general for water quality 

management are to be approved by 

EPA. The water quality standards 

program is, in the view of EPA, part of a 

Tribe or State's overall water quality 

management plan. 

Comment: It is not clear how two EPA 

Regions will work together when a 

reservation overlays more than one EPA 

Region. 

Response: No regulatory change was 

made nor suggested. Often in the 

standards program issues cross Regional 

and State boundaries. The lead EPA 

region (determined via OMB circular A95) is expected to routinely enlist the aid 

of other affected regions in resolving the 

dispute. EPA Headquarters will also 

oversee the process to ensure that the 

interests of both Regions are 

represented. Being designated as the 

lead Region for resolving a dispute or 

programmatic issue within EPA does not 

carry the license for the lead Region to 

act unilaterally. Rather it assigns the 

responsibility to ensure that the process 

leading to a decision is fair t~ all parties. 

3. Establishing Water Quality 

Standards on Reservations 

Comments on Tribal Options for 

Establishing Standards 

Comment: In the preamble to the 

proposal, EPA discussed three 

acceptable options by which a.Ti'ibe 

may develop and adopt standards. 

These options are: (1) Negotiation of 

cooperative agreements wi~h an 

adjoining State to apply the State's issues, section 401 certifications or 

standards to the Indian lands, (2) nonpoint so.urce !Jlanageme~t decisions. 

incorporation of the standards from an Without standards, Tribes are unable to 

adjacent State as the Tribe's own, with influence such decisions; EPA notes that 

or without revision, or (3) independent the proposal indicated that the Agency 

Tribal adoption of water quality . . would be willing to grant extensions to 

standards that may account for unique the 180 day deadline if the Tribe could 

site-specific conditions and water body submit a reasonable rationale to the 

uses. These three options represent a Regional Administrator. 

range of resource commitments, with The comments submitted on this issue 

option 1 being the least resource have persuaded EPA that Tribes should 

intensive and option 3 the most be allowed longer than 180 days to 

intensive. One comment was received adopt and submit standards to the 

that the first option described (i.e., Agency for review and approval. EPA 

negotiating a cooperative agreement believes that Tribes should be allowed a 

with an adjoining State to apply the full three year review cycle to adopt and 

State's standards to the Indian lands) is submit standards, similar to what States 

illegal. were originally provided when the 

Response: There is nothing inherently standards program was created in 1965. 

illegal about the option. If a Tribe, as a The three year period will be measured 

sovereign government, negotiates a from the date that EPA notifies the Tribe 

cooperative agreement with the State to that the Tribe has qualified to be treated 

apply the State's standards to waters on as a State for purposes of the standards 

the reservation, that is a legal and program. EPA believes that this is an 

acceptable option for establishing CWA equitable arrangement and that Tribes 

water quality standards on Indian lands. should be allowed sufficient time to 

It is also legal if a Tribe uses standards develop their programs and adopt 

of a State as a basis for Tribal standards appropriate standards for reservation 

(i.e., option 2). Nothing in option 1 waters. EPA reiterates that a Tribe is 

suggests that the Tribe relinquish its not required by sections 303 and-518 to 

sovereign powers or enforcement seek treatment as a State and to 

authority, or that the State can establish Tribal standards; today's rule 

unilaterally apply its standards. The asserts only that Tribes who elect to do 

option is a legitimate means for an so will be expected to have such 

Indian Tribe to make use of the standards in place within three years. 

resources and experience of an adjacent EPA continues to believe that the 

State to quickly establish, at minimal development of Tribal standards can be 

cost, Tribal standards for the reservation. an iterative process and that the option 

Comment: In the preamble to the initially selected by the Tribe can 

proposal, EPA indicated that, where change in subsequent triennial reviews. 

b l'f b d s f Initially, a Tribe may choose option 1 or Tri es qua 1 Y to e treate as tates or 2. This initial decision does not preclude purposes of water quality standards, the 

Agency would expect Tribal standards the Tribe from developing their own 

to be adopted and submitted to EPA standards for subsequent triennial 

within 180 days. Several comments were review cycles. Tribal standards may 

received on this deadline indicating that evolve from essentially a codification of 

EPA should allow a longer period of existing State standards to a rule 

time (e.g., because Tribes will be entirely of Tribal design. 

working to establish programs in other Comments on Federal Assistance to 

media besides water). Indian Tribes 

Response: The_rationale for the 

deadline included in the proposal was Comment: Several comments were 

that the 180 days was the same period of received concerning EPA's commitment 

time provided to States to adopt to funding Tribal programs and 

standards under the 1972 Federal Water providing technical assistance. 

Pollution Control Act Amendments. Commenters suggested that the 

However, the proposal also discussed a allocation of funds to implement 

difference between the situation in 1972 standards programs must be 

for States versus the current situation apportioned equitably between States 

for Tribes. In 1972, most States already · . and Tribes and that EPA make a 

had interstate water quality standards stronger commitment to technical and . in place. By contrast, many Tribes have • financial assistance to the Tribes. One 

not yet developed any standards f~r . suggestion was that EPA should be 

reservation waters. EPA also believed· . required to provide technical asaistance., 

180 days to be an appropriate peridd of· · necessary.to bring Tribal programs.into 

time because of the importance of : . · compliance,with the regulations.· 

establishing Tribal standards quicl<ily i.n ; Response: The water quaJity 

order to address. any NPDES•pexinit . ; standards.program is not a grant 
64891 Federal Register I Vol 56, No. 239 I Thursday, December 12, 1991 I Rules. and Regulations 

program, therefore no Federal funds are 

available directly from the standards 

program. Tribes are eligible to receive 

funds from other Agency grant programs 

and are encOuraged to apply, 

· particularly for section 106 program 

grants. EPA will provide as much 

technical assistance as the Agency's 

resources will allow. However, under 

the 1907 CWA Amendments the Agency 

received f1D additional resources to 

support Indian programs. Program 

grants can only be made available by 

reallocating resources from within 

current budget allocations. EPA set 

aside 3% of the total FY 1990 section 106 

furuls for Indian prograffi8, and is 

plannin,g a similar set-aside for FY 1991. 

ln a continuing effort to provide 

assistance to Tribes on the standards 

program. EPA issued a Reference Guide 

to Water Quality StHndards for Indian 

Tribes, in January 1990. This document 

summarizes the standards i·twiew and 

adoption pmcess including program 

requirements and the EPA review 

procedure. The document also identifies 

available information and contacts to 

assistTribes in becoming farnilia'r with 

the requirements of the water quality 

standards prosram. · 

The Agency also held a national 

meeting/seminar at which Tribes 

received information on the regulatory 

requirements, technical elements and 

procedures, and resource needs ·for 

developing w:ater quality standards and 

implementing a standards program. The 

meeting was held on August 28-30. 1990 

in Denver. Colorado. Further 

information about this workshop and 

plans for additional meetings may be' 

obtained from the contact listed at the 

beginnillJ of today'·s ru1e.· 

Comments on Extraterritorial !Effects 

Comment: A number of .COmments were received on this topic. One 

comment pointed out that the 

extraterritorial effects of discharges 

upstream of a State or Indian 

rese~vation.should be considered during 

·the standaf'ds review and adoption 

process to erunsre that 'water quality 

standards provide for the llttainme.nt of 

standards m downstllealli .juriad.k:tion~ . 

This comment also S1:18geaied that !EPA 

needs to place more emphasM!.on the 

importance of .aiUlh considerations. 

Suggesooms fur how such effects cowd 

be conside!oe.d included :requiri~ 

upstream ierisdictiona to meet with 

downstream jurisdictions to dis.ooss . 

potentialwn{IU:ts or. :altemativeiy, that 

if EPA lis Ito decide suah issuet~. 1ha(1he 

affected iuri'&dictions :should be .all~»Ved 

to have input. Related commeuts were· 

received_(as disi:uss.ed pre\11001Jif to #w 

response to Q>lnmen:ts oo I;.WA ;section 

510/EPA Authority) asserting that EPA 

must, where needed. assume pennitting 

authority for upstream discharges that 

violate the water quality standards of 

downstream -jurisdictions. One comment 

was received advocating that the 

regulation be revised to prevent any 

extraterritorial effec1 of any T·ribal 

regulatory action taken pursuant to 

CWA section 518. 

Response: The existing standards 

program regulation. to which this ro1e ·is 

simply an amendment. includes the 

following ·requirement: 

In design a tins uses .of 11 w11 ter body and the 

appropri11te CTiteria for those uses, the State 

shalt take into consideration the water 

quality standards of downstream waters and 

shu II ensure .that its water quality st811dards 

provide for the attainment and maintenance 

of the water quality standards of do.wnstream 

waters. 

{see § 131.10(b)]. 

EPA agrees with the comment which 

pointed out that, pursuant to the ab()ve 

regulatory requirement, extraterritorial 

effects ·of water quality standards 

· should be considered during the 

standards review and adoption precess. 

Once Tribes qualify for treatment .as 

States and adopt standards pursuant ro 

the requirements of today's rule. 

upstream jurisdictions wou1d he 

required. when revising their standards, 

to provide for the attainment and 

maintenance of the downstream Triba1 

standards. Li'kewiee, Tribes quaUiymg 

for treatment as States would be 

required .to develop their standards to 

provide for the .attainment and 

maintenance of. the standards for 

downstream jurisdictions. 

EPA recosllizes that some 

extrate111'itorial effects of Tribal 

participation .in the :standards program 

are J.ike,\y .to oa:ur. but .the Agen~y 

belie:v.es .that the number of such 

incidences wiU be .small and .the effects 

relatiwely minor. EPA believ.es .that 

Congress also recognized .the Hke:lihood 

of such effec.te in passing CWA .secUoa 

518. .and ~hat such .effects were tbe 

driving force behind iru;luc;Un,g >in section 

518 the requiremeat for EPA ro establiah 

·a mechanism for resoJution of disputes 

over w.ater qualitw .standards. 

BPA emphasizea. however. that .wnder 

the CWA .there are a nwnber .of 

oppor.tll&ties for .&uch problems .to b.e 

considered and resolved p.N~r to being .a 

subject for the dispt:tte resoluti!>ll 

mechanism included an . .tGday's rule. 

First.. as discussed aho¥e. States anci 

Tribes .quaHfymg lfQl' !treatment as states . are required uncier 40 CFR 131L1:0{b~ to· 

develop tthei.r standards to:easure the 

attainmentaadmaintenanceof - .. downlltream ·water quality ataac,la~$. -

One opportunity to prevent such 

problems is thus to consider .any 

potential extraterritorial effects during 

the water qua1ity review process .and to 

adopt standards consistent with the 

requirements of 40 CFR 11.31.!0{b). EPA 

notes that the water quality standards 

review process includes ~pport.u.nities 

for public participation fsee the 

response to comments on public 

participation .elsewhere in this secti.onJ. 

Second, permit limits 'Uilder the 

National Pollutant Discharge 

Elimination System (NPDES) prugram 

(see CWA section 402) are required to 

be developed such that applicab1e water 

quality standards are achieved. The · 

Plilrmit issuaRce process, whkh also 

ind.udes public participation. thus 

pre11ents a second opportunity to 

consider and resolve potential problems 

reg!lrding extraterritmial-effects of 

water quaii1y standards. 

Third, a11 permits are subjec1 to 

certification under the requirements of 

CWA section 401. Section 401 requires 

that States and Tribes qualifying for 

treatment as States grant or deny 

"certificationH for FederallJy pennitted or 

licensed aetiviHes that may result ina · 

discharge to waters of the ll!Jnited States. 

The decision to grant or deny 

certification is based :on a State 

determinaHcm regarding whether the 

pr()pose;d activity wm cC,mpty with, . 

among other things, ap~icabffi water 

quali-ty 'Standards. Statm; and Tribes 

qualifying for treatment as States may 

thti.s deny certification and prohibit thtl 

·federal permitting or licensing agency 

from· issuing a permit or \icense for . 

activities that will vloiate water quality 

standards. Section 401 also aHows a 

State or Tribe to participate ·in 

extratenitoriat actions that 'w'itl affect 

its waters 'if a Federa1license or permit 

is invf!\ved {see section 401ftt}{'2)). 

EPA bas included the above 

discussion to indicate that there are a · number of opportunlties for.resolvlng/ 

preventing prob1ems resu1tiQg ·from 

extraterritorial effects of wat~r qua1ity 

standards besides the dispute resolution 

meChanism inc'luded in today's rute. 

EPA.be'lieves tha1 the dispute resolution 

mechanism wHI be most appropriately. 

used as a final course of action aft~r tfte 

other availabte .oour:ses of action hava 

been ii!Xhausted. 

Comment'S on EPA's Policy Rega11ding 

Applicable Standard11 Prior tB Tf'ibal 

Qu.alification for Treatment .as a Stat~ 

Comment: EPA received se-v.er.ai 

comments regarding the policy whereim . - EPA sta:ted that ulllltil :a Tiibe is treated.,·. as a Sia~e and ~tab1isbes Hs own standards. or EPA Otherwise decide$ ·m · .. ; . 
Federal Register I Vol: 56, No. 239 I Thursday, December 12, 1991 I Rules and Regulations · 64891 

consultation with the Tribe and State 

that a State lacks jurisdiction, that EPA 

will assume that existing State 

standards are applicable to reservation 

waters (see 54 FR 39104). State 

commenters generally supported EPA's 

statements, while Tribal commenters 

objected I<> the policy on a variety of 

grounds. First, certain Tribes noted that 

they may want to apply standards. more 

stringent that State standards. 

Commenters also asserted that, to be 

consistent with EPA's Indian Policy, 

Federal, not State standards should 

apply on reservation waters; and that 

assuming State standards apply is at 

odds with the Agency's duty to 

promulgate. One commenter urged EPA 

to consider developing a program to 

promulgate Federal standards for 

reservation waters where the Tribe is 

unable or chooses not to adopt its own 

standards. · 

Response: In response to these 

comments, EPA wishes to further clarify 

the interim statements made in former 

General Counsel Jensen's September 9, 

19881etter. EPA agrees that. as a legal 

matter, there may be some question as 

to whether State standards apply to 

reservation waters. (See the discussion 

of the Brendale case above). The policy 

in question is not an assertion that State 

standards do necessarily apply as a 

matter of law. Rather it is a mere 

recognition that fully implementing a 

role for Tribes under the CW A will 

require a transition period. As explained 

earlier, there are no enforceable Federal 

standards that apply generally. EPA 

develops non-binding watllr quality 

criteria for use by States and Tribes in 

developing their standards. However, 

Federal standards do not apply unless 

EPA promulgates them upon a finding, 

pursuant to CWA section 303(c), that 

State/Tribal standards are inadequate 

or that new standards are otherwise 

necessary (see EPA's response to 

comments on Federal promulgation 

below). 

Were EPA to simply ignore previously 

developed State standards in the interim 

period before Tribes develop their own 

standards, there would be a regulatory 

void which EPA believes would not be 

beneficial to reservation water quality. 

Thus, EPA believes that the Agency;s 

policy is the best approach to an 

intractable problem, and one that best 

protects reservation environments in the 

interim period. Thus, it is· fully 

consistent with EPA's Indian Policy. To 

the extent that the interim guidance 

given in the Jensen letter implies a different intent behind EPA's policy, 

today's response supersedes it. EPA will 

'give serious consideration to Federal 

· promulgation of water quality standards 

on Indian lands where it finds a particular need. Finally, in response to 

one specific comment, EPA agrees that 

where the Tribe endorses applying State 

standards in the interim, that EPA 

should ensure enforcement of those 

standards in permits issued to 

reservation dischargers. 

Comments on EPA Promulgation of 

Water Quality Standards 

Comment: Reflecting CWA section 

303(c)(4), the water quality standards 

regulation specifies that the EPA 

Administrator may promulgate Federal 

water quality standards in any case: (1) 

Where the State standards do not meet 

the requirements of the Act, or (2) where 

the Administrator determines that new 

or revised standards are necessary (see 

40 CFR 131.22). A number of comments 

were received regarding this authority, 

which will apply to Indian Tribes 

qualifying for treatment as a State, and 

potentially where a Tribe does not seek 

to assume the program and it is 

determined that State standards do not 

apply. Federal promulgation was 

discussed in the preamble to the 

proposal. It is not mentioned in the rule. 

Comments on the preamble discussion 

generally expressed concern with EPA 

promulgation of standards. Included 

were suggestions that the Agency should 

clarify how it intends to determine that 

a Tribe has declined to seek 

qualification as a State. One comment 

suggested that such a clarification 

should include specific requirements/ 

criteria and that such requirements/ 

criteria should include lengthy 

discussions with the Tribe and a formal 

statement of declination from the Tribal 

government. In general, these comments 

cautioned EPA not to make the decision 

for Tribes. Several comments were 

received asserting that Federal 

promulgation should only be pursued as 

a last resort. One comment asserted that 

EPA promulgation is: (1) Contrary to the 

legal status of Indian lands being 

exempt from State laws, (2) unilaterally 

discretionary, and (3) contrary to EPA's 

Indian policy. 

Other comments asserted that where · 

EPA promulgates Federal standards the · 

Agency should devote adequate · 

resources to the task and not simply use 

adjacent State standards. One comment . 

was received supporting EPA's 

acknowledgment of responsibility to 

promulgate standards. 

Response: EPA's entire policy with 

respect to Federal promulgation is 

straightforward. EPA much prefers to 

work. with the States and have them 

adopt standards which comply with 

CWA requirements·. Where Federal 

promulgation is necessary to achieve 

CWA compliance, however, EPA will 

act. This same philosophy will apply to 

Indian Tribes qualifying for tre.atment as 

a State. 

EPA did not add criteria to the rule to 

help determine when a Tribe has 

declined to seek treatment as a State. 

There is no required time frame for a 

Tribe to make that decision and there 

may be no pressing need for a Tribe to 

decide quickly. 

Should EPA find it necessary to 

promulgate Federal standards for a 

Tribe or more than one Tribe (e.g., 

where necessary to address needed 

water quality based permit actions), 

EPA re-asserts its belief that the 

standards of the adjacent State will be a 

logical beginning step for EPA if for no 

other reason than the consistency 

required by 40 CFR 131.10(b). Practical 

considerations of available resources 

dictate that the Agency cannot and 

would not attempt to use attainability 

analyses or attempt to develop sitespecific criteria. That is to say, a Federal 

. proposed rulemaking would likely be 

very straightforward, all streants ~ould 

be classified fishable/swimmable and 

the criteria to protect the uses would be 

those guidance values established by 

EPA under section 304(a) of the Act. 

Any changes in a final rule would 

depend on information submitted during 

the public comment period. 

EPA concurs with the view that 

Federal promulgation should be a last 

resort. The Agency much prefers that 

Indian Tribes qualify for the standards 

program and adopt standards that 

comply with CW A requirements. 

However, Federal promulgation of water 

quality standards on Indian lands is 

authorized by the CWA (see CWA 

section 303(c)(4)). The question of 

Federal promulgation of standards for 

Indian Tribes has no relationship to 

Indian lands being exempt from State 

laws. A Federal promulgation results in 

establishing Federal standardsstandards that cannot be amended by 

the jurisdiction to which they apply 

(although EPA generally withdraws such 

Federal standards upon adoption of fully 

acceptable State standards). We agree 

that the EPA Indian Policy dictates that 

Federal promulgation should only be 

pursued a~ a final course of action, as the Agency indicated in the preamble to 

the proposed rule. However; it does 

remain an ·option, where necessary, for 

setting standards for water resources 

located in Tribal lands. 

.Comments on Public ~articipation 

Comment: Several comments were 

received regarding the processes for 
64B9Z ~Federat Register /Vot 56, No. 239 I Thursday, December 1t, 1991 I Ru1es and RegulatiQnfi 

public participation in water quality 

standards development Commenters 

questioned. whether public participation 

in the adoption of standards by Indian 

Tribes would be limited to just Indians, 

just res'idents of the reservation, or 

whether the hearing process would be 

open to interested parties in the areas 

surrounding the reservation. In general. 

these rommenters requested additional 

clarification of public participation 

requirements. 

Response: PUblic participation is not 

limited :in any way. to only residents of 

the area or just Indians. EPA expects 

that Tribes and States will make every 

reasonable effort to ensure that possible 

interested parties are made aware of tbe 

hearings on standards. This may require 

a direct written notice to State or Indian 

agencies or other Federal agencies. One 

of the respBnsibilities of EPA in 

reviewing State or Indian adopted 

standards is to assure that a full range 

of public participation occurred. EPA 

expects that State representatives will 

participate in public hearings on the 

reservation concerning water quality 

standards and that Tribal 

representativ.es will do the same in State 

hearings. · 

Standards adopted by either States or 

Indian Tribet~ that appear to be based on 

improper or Wlduly limited public 

participation may be disapproved by 

EPA solely on that basis since the Clean 

Water Act requires fuat standards may 

only be revised or adopted with public 

participation {see section 303(c)(1j of the 

Clean Water Act and§§ 131.6{e} and 

131.20 (a) and {b) of the Water Quality 

Standards Regulation in 40 CFR part 

131J. 

Comments on Enf<Jrcement (){ Standal'ds 

Comment: Several comments were 

received on enforcement ofTribal water 

quality standards. These commenters 

generally asserted that additional 

clarification should be provided by EPA. 

Several commenters noted that EPA 

should enforce Tribal standards. One 

commenter assumed that, based on the 

limited scope of CWA section 518, 

Tribal standards would be enforced by 

either EPA .or the State. 

Response: Enfort:ement of standards 

is not directly a 1:omponent of the 

standards program regulation. 

Enforcement is the responsibility of the 

permitting agency or. ln some cases, the 

agency which adopted the standards, 

which may be· the Tribe, if it qualifies for 

treatment as a State for administering 

the NPDES permit program, or EPA or 

the State if the Tribe does not (see 4fl 

CFR 123.1(h)). Where Tribes lack the 

requisite criminal enforcement 

authority,.EPA may exercise certain 

criminal enforcement powers on behalf 

of Indian Tribes that seek to operate 

NPDES or State Sludge Management 

Programs. 

4. Other Comments 

Comments on Trust Responsibility 

Comment: EPA received several 

comments regarding its assertion that 

the "Federal trust responsibility" owed 

to Indian Tribes, as it applies to EPA 

actions under the CWA. is defined hy 

the terms <lfthe CWA. EPA went on tm 

explain that .. the Agency's 

responsibility is dearly to attempt to 

resolve * • • disputes {between States 

and Tribes over standards] consistent 

wHh the provision of the [CWA]." 54 FR 

39101. 

· Certain commenters asserted that 

EPA .should explicitly clarify whether 

the CWA defines any trust obligations 

to tribes and, if so, where and how that 

obligation wiU be expressed. In 

particular, EPA should explicitly .define 

how the trust responsibility will affect 

its role in the dispute resolution process. 

Other commenters not only asked for 

clarification, but a11Serted that EPA must 

state that the Federal-Tribal trust 

relationship "exists independently Q{ 

and informs EPA decision· making" 

concerning the CWA and State-Tribat 

disputes. Still another oommenter asked 

EPA to clarify that the proposed 

regulations are not to be read as 

modifying or abrogating EPA's trust 

responsibility. 

Response: EPA believes thatthe 

preamble to the proposed rule stated the 

applicable prim::iples Clearly and that no 

further clarification is needed. EPA 

recognizes the responsibility owed by 

the Federal government as trustee for 

the affairs of Indian Tribes. However, 

the Agency does not believe the trUst 

responsibility precludes EPA from 

playing an impartial role in the dispuh~ 

resolution process. 

Furthennore, EPA believes that the 

concerns of both Tribal and State 

commenteni regarding the trust 

responsibility's impact on the dispute 

resolution process and EPA's other 

activities under today's reguiation are 

likely unfounded. If so appointed by the 

Regional Administrator, EPA employees 

will be acting solely as mediators or 

non-binding arbitrators in the proE;ess. 

Thus, they will not have the power to 

impose a binding decisfon on either the 

Tribe or the State absent prior consent 

from both 11ides. Furthermore, if both the 

Tribe and the State have adopted va'lid 

water quality standards approved by 

EPA, the dispute reso1utioo process 

W<luld not be abte to supersede those 

standards.Thus, the ."trust 

responsibility"' would not affect the 

outcome of the dispute resolution 

process and any EPA statements 

regarding its overall srope would be 

strictly hypothetical. By the same token, 

EPA recognizes its duty to work with 

Tribes who wish to develop and adopt 

standards and to eliminate all potentia1 

barriers to Tribes accomplishing th1s 

goal. 

Comments on Definitions Pwposed for 

Section 131.:3 

Comment: EPA shou1d change the 

proposed definition of a Tribe in section 

131.3 to. mean any Indian Tribe, band, 

group, or community recognized by the 

Secretary of the Interior and exercising 

governmental powers and functions 

over a Federal Indian Reservation. 

Response: No change was made.1be 

rule reflects the statutory definition. 

Comment: What role do standards 

play in subsurface flows emanating from 

one jurisdiction that flow into and 

impact the surface waters of another 

jurisdiction? 

Response: Notwithstanding the strong 

language in the legislative history of the 

Clean Water Act to the effect that the 

Act does not grant EPA authority to 

re,gulate pollution of groundwaters, EPA 

and most courts addressing the issues 

have recognized two limited instances 

where, for the purpose of protecting 

surface wat~rs and their uses, EPA may 

exercise authorities that may affect 

underground waters. First, the Act 

requires NPDES permits for discharges 

to groundwater where there is a direct 

hydrological connection between 

groundwaters and surface waters.ln 

these situations, the affected 

groundwaters are .not considered 

"waters of the United States .. but 

discharges to them are regulated 

because such discharges are effectively 

discharges to the directly connected 

surface waters. Second. His EPA's longestablished position that water quality 

standards are required for certain 

underground segments of surface 

waters; See Kentucky v. Train, 9 ERC 

1280 {E.D. Kentucky 1972). In such 

streams, the subterranean component 

must be sufficiently stream-tike so as to 

possibly allow the passage .of fish and 

other aquatic organisms from a surface 

segmentof the stream into the 

unde~;ground segment. 

Comments on Water Quantity Rights 

Comment: Severa\ comments were 

received regarding water quantity 

issues. These comments generally 

asserted that the statement in the 

preamble t'? the proposal f54 FR 39101} 

which indicates that all·section 518 .. 
Federal Register I Vol. 56, No. 239 I Thursday, December 12, 1991 I Rules and Regulations 64893 

programs shall be cctrried out in 

accordance with CWA section 101(g) 

should be added to the final regulation. 

CWA section 101(g) asserts that nothing 

in the CWA shall supersede or abrogate 

rights to quantities of water which have 

been established by any State. 

Response: Since sections 101(g) and 

518(a) are clear in the Clean Water Act, 

EPA believes it unnecessary to restate 

such language in the regulation. 

Nevertheless, a brief reference is made 

to them in § 131.4 of these regulations. 

Comments on Applicability of Standards 

to Federal Projects 

Comment: EPA should clarify that 

Tribal water quality standards cannot 

be applied to Federal projects. 

Response: EPA disagrees with that 

view. Federal agencies are required t() 

comply to the same extent as other 

persons or entities with duly adopted 

State standards (see CWA section 313). 

This will apply likewise to any 

standards duly adopted by Indian 

Tribes that EPA determines qualify for 

treatment as a State for the standards 

program. 

D. Regulatory Flexibility Act 

For the reasons stated in the preamble 

to the proposed rule, 54 FR 39105, 

September 22, 1989, EPA concludes that 

this rule will not have a significant 

impact on a substantial number of small 

entities, and thus a Regulatory 

Flexibility Analysis is unnecessary. 

Comments on EPA's Determination 

Regarding Regulatory Flexibility Act 

Requirements 

Comment: Within one reservation in 

Utah a substantial number of small -

businesses may be required to provide 

additional treatment of wastewaters to 

meet Tribal water quality standards. 

EPA should investigate and 

acknowledge this result before asserting 

a lack of substantial impact on small 

entities. 

Response: As stated in the proposal, 

EPA recognizes that an Indian Tribe 

which qualifies for treatment as a State 

could adopt water quality standards 

that might impose additional treatment 

requirements on discharges with NPDES 

permits. However, EPA continues to 

believe that such situations will be rare 

and that the rule will not have a 

significant impact on a substantial 

number of small entities. 

While it is entirely possible that some 

small entities in Utah may be affected 

by a Tribe adopting water quality 

standards, it is difficult for EPA to make 

conclusive findings when the Agency 

does not know if any Tribe in Utah will 

attempt to qualify for treatment as a 

State or what standards may be 

adopted. EPA also has no evidence to 

support a conclusion that Tribal 

standards will necessarily require more 

stringent NPDES permit limits than 

contained in existing permits. 

In adopting standards, EPA notes that 

economic consequences are 

appropriately considered in setting the 

use classifications on a water body. For 

example, economics may be used as a 

basis for not designating uses in support 

of the fishable-swimmable goal cite.d in 

section 101(a)(2) of the Act (see 

§§ 131.10 (a) and (j) of the Water 

Quality Standards Regulation, 40 CFR 

part 131). In addition, the water quality 

standards regulation provides for the· 

allowance of variances to standards 

based on substantial and widespread 

economic and social impact (see 

§ § 131.10(6) and 131.13). 

E. Paperwork Reduction Act 

The information collection 

requirements in this rule were approved 

by the Office of Management and 

Budget under the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq, on October 17, 

1989,approvalnurnber2040-0049,~th 

an expiration date of October 31, 1992. 

A copy of the Information Collection 

·Request document may be obtained 

from the Information Policy Branch 

(PM-223Y), Environmental Protection 

Agency, 401 M Street, SW., Washington, 

DC, 20460, or by calling (ZOZ)-475-9498. 

F. Regulatory Impact Analysis 

Under Executive Order 12291, EPA 

must judge whether a regulation is 

"major" and therefore subject to the 

requirement of a Regulatory Impact 

Analysis. It should be noted that the 

basic water quality standards regulation 

published at 48 FR 51400 on November 

8, 1983 contains a finding that the 

regulation is not a major rule under 

Executive Order 12291. It is difficult for 

EPA to assess the net cost of this 

amendment to the basic regulation 

because of the offsetting character of the 

basic provisions of the standards 

program and the fact that there is no 

good means of estimating how many 

Tribes may seek to qualify for treatment 

as a State. While qualifying for 

treatment as a State will place burdens 

on the Tribes, the basic regulation also 

provides the ability of the Tribes to 

determine the attainability of stream 

uses, to set site-specific criteria 

sufficient to protect those uses, and to 

focus limited Tribal resources on 

revie~ng or adopting standards on 

priority water bodies. For these reasons, 

the Agency judges this amendment to 

the basic standards regulation not to be 

a major rule. 

List of Subjects in 40 CFR Part 131 

Indian reservation water quality 

standards, Water pollution control, 

Water quality standards. 

Dated: November 22, 1991. 

William K. Reilly, 

Administrator. 

For the reasons set out in the 

SUPPLEMENTARY INFORMATION section, 

part 131, subpart A, of title 40 of the 

Code of Federal Regulations is amended 

as follows: 

1. The authority citation for part 131 

continues to read as follows: 

Authority: Clean Water Act, Pub. L. 92-500, 

as amended; 33 U.S.C. 1251 et seq. 

2. Section 131.3 is amended by 

revising paragraph (j) and adding 

paragraphs (k) and (I) to read as follows: 

§ 131.3 Definitions.. 

* * * * * 

(j) States include: The 50 States, the 

District of Columbia, Guam, the 

Commonwealth of Puerto Rico, Virgin 

Islands, American Samoa, the Trust 

Territory of the Pacific Islands, the 

Commonwealth of the Northern Mariana 

Islands, and Indian Tribes that EPA 

determines qualify for treatment as 

States for purposes of water quality 

standards. 

(k) Federal Indian Reservation, Indian 

Reservation,. or Reservation means all 

land within the limits of any Indian 

reservation under the jurisdiction of the 

United States Government, 

notwithstandiQg the issuance of any 

patent, and including rights-of-way 

running through the reservation." 

(I) Indian Tribe or Tribe means any 

Indian Tribe, band, group, or community 

recognized by the Secretary of the 

Interior and exercising governmental 

authority over a Federal Indian 

reservation. 

3. Section 131.4 is revised to read as 

follows: 

§ 131.4 State authority. 

(a) States (as defined in § 131.3) are 

responsible for reviewing, establishing, 

and revising water quality standards. As 

recognized by section 510 of the Clean 

Water Act, States may develop water 

quality standards more stringent than 

required by this regulation. Consistent 

with section 101(g) and 518(a) of the 

Clean Water Act, .vater quality 

standards shall .tot be construed to 

supt:rsede or abrogate rights to 

auantities of water. 

· (b) States [as defined in § 131.3) may 

issue certifications pursuant to the 

requirements of Clean Water Act . 

section 401. Revisions adopted by States 
64894 · Federal Register/ Vot.56, No. 239·/ Thursday~ December 12, 1991 f,':Rules· and Regulations 

.. shall be applicable for use in .. issuing 

. 'State certifications consistent with the 

provisions of§ 131.21(c). 

(c) Where EPA determines that a 

Tribe qualifies for treatment as a State 

for purposes of water quality standards, 

the Tribe likewise qualifies for 

treatment as a State for purposes of 

certifications conducted under Clean· 

Water Act section 401. 

4. In § 131.5 paragraphs (a) through (e) 

are redesignated as paragraphs (a)(1) 

through (a)(5); the introductory 

paragraph is designated as paragraph 

(a), and a new paragraph (b) is added to 

read as follows: 

§ 131.5 EPA aythorlty. 

• • • • 

(b) Section 401 of the Clean Water Act 

authorizes EPA to issue certifications 

pursuant to the requirements of section 

401 in any case where a State or 

interstate agency has no authority for 

.issuing such certifications. 

5. Section 131.7 is added to read as 

follows: 

§ 131.7 Dispute resolution mechanism. 

(a) Where disputes between States 

and Indian Tribes arise as a result· of 

differing water quality standards on 

common bodies of water, the lead EPA 

Regional Administrator, as determined 

based upon OMB circular A-105, shall 

be responsible for acting in accordance 

with the provisions of this section. 

(b) The Regional Administrator shall 

attempt to resolve such disputes where: 

(1) The difference in water quality 

standards results in unreasonable 

consequences; 

(2) The dispute Is between a State (as 

defined in § 131.3(j) but exclusive of all 

Indian Tribes) and a Tribe which EPA 

has determined qualifies to be treated as 

a State for purposes of water quality 

standards; 

(3) A reasonable effort to resolve the 

dispute without EPA involvement has 

been made; 

(4) The requested relief is consistent 

with the provisions of the Clean Water 

Act and other relevant law; 

(5) The differing State and Tribal 

water quality standards have been 

adopted pursuant to State and Tribal 

law and approved by EPA; and 

(6) A valid written request has been 

submitted by either the Tribe or the 

State. 

(1) A concise statement of the 

unreasonable consequences that are 

alleged to have arisen because of . differing water quality standards; 

(2) A concise description of the 

actions which have been taken to 

resolve the dispute without EPA 

involvement; 

(3) A concise indication of the water 

quality standards provision which has 

resulted in the alleged unreasonable 

consequences; 

(4) Factual data to support the alleged 

unreasonable consequences; and 

(5) A statement of the relief sought 

from the alleged unreasonable 

consequences. 

(d) Where, in the Regional 

Administrator's judgment, EPA 

involvement Is appropriate based on the 

factors of paragraph (b) of this section, 

the Regional Administrator shall, within 

30 days, notify the parties in writing that 

he/she is initiating an EPA dispute 

resolution action and solicit their 

written response. The Regional 

Administrator shall also make 

reasonable efforts to ensure that other 

interested individuals or groups have 

notice of this action. Such efforts shall 

include but not be limited to the 

following: 

(1) Written notice to responsible 

Tribal and State Agencies, and other 

affected Federal agencies, 

(2) Notice to the specific individual or 

entity that is alleging that an 

unreasonable consequence is resulting 

from differing standards having been 

adopted on a common body of water. 

(3) Public notice in local newspapers, 

radio, and television, as appropriate, 

(4) Publication in trade journal 

newsletters, and 

(5) Other means as appropriate. 

(e) If in accordance with applicable 

State and Tribal law an Indian Tribe 

·and State have entered into an 

agreement that resolves the dispute or 

establishes a mechanism for resolving a 

dispute, EPA shall defer to this 

agreement where it is consistent with 

the Clean Water Act and where it has 

been approved by EPA. 

(f) EPA dispute resolution actions 

shall be consistent with one or a 

combination of the following options: 

(1) Mediation. The Regional 

Administrator may appoint a mediator 

to mediate the dispute. Mediators shall 

be EPA employees, employees from 

other Federal agencies, or other 

. individuals with appropriate 

qualifications. 

(i) Where the State and Tribe agree to 

participate in the dispute resolution 

process, mediation with· the intent to · establish Tribal-State agreements, 

(c) Either a State or a Tribe may 

request EPA to resolve any dispute 

which satisfies the criteria of paragraph 

(b) of this section. Written requests for 

EPA involvement should be submitted to 

the lead Regional Administrator and 

must include:· · · · ' consistent with Clean· Water Act section 

518(d), shall normally be pursued as a 

first effort 

. (il) Mediators shall act as neutrttl 

facilitators whose function is to 

encourage,communicatlon and 

negotiation between ali· parties to the 

dispute.· 

(iii) Mediators may establish advis01-y' 

panels; to consist in part of · 

representatives from the affected 

parties. to study the problem and recom~end an appropriate solution .. 

(iv) The procedure and schedule for 

mediation of individual disputes shalllw 

determined by the mediator in 

consultation with the parties. 

(v) If formal public hearings are tu:ld 

in connection with the actions taken 

under this paragraph, Agency 

requirements at 40 CFR 25.5 shall be 

followed. 

(2) Arbitration. Where the parties to 

the dispute agree to participate in the 

dispute resolution process, the Regional 

Administrator may appoint an arbitrator 

or arbitration panel to arbitrate the 

dispute. Arbitrators and panel memberP 

shall be EPA employees, employees 

from other Federal agencies, or other 

individuals with appropriate 

qualifications. The Regional 

administrator shall sehict as arbitrator~< 

and arbitration panel members 

individuals who are agreeable to all 

parties, are knowledgeable concerning 

the requirements of the water quality 

standards program, have a basic 

understanding of the political and 

economic interests of Tribes and States 

involved, and are expected to fulfill the 

duties fairly and impartially. · 

(i) The arbitrator or arbitration panel 

shall conduct one or more private or 

public meetings with the parties and 

actively solicit information pertaining tu 

the effects of differing water quality 

permit requirements on upstream and 

downstream dischargers. comparative 

risks to public health and the 

environment, economic impacts, presem 

and historical water uses. the quality of 

the waters subject to such standards, 

and other factors relevant to the dispute. 

such as whether proposed water quality 

criteria are more stringent than 

necessary to support designated uses, 

more stringent than natural background 

water quality or whether designated 

uses are reasonable given natural 

background water quality. 

(ii) Following consideration of 

relevant factors as defined in paragraph 

· (f)(2)(i) of this section, the arbitrator or 

arbitration panel shall have the 

authority and responsibility to providP 

· all parties and the Regional 

·Administrator with a written···· -recommendation for resolution Of thP. 
· Federal Register I Vol. 56, No. ·239 I Thursday, Dec·ember 12, · 1.991 I Rules' arid Regulations · '64895 

dispute. Arbitration panel 

recommendations shall, in general, be 

reached by majority vote. However, 

where the parties agree to binding 

arbitration, or where required by the . 

Regional Administrator, 

recommendations of such arbitration 

panels may be unanimous decisions. 

Where binding or non-binding 

arbitration panels cannot reach a 

unanimous recommendation after a 

reasonable period of time, the Regional 

Administrator may direct the pan·el to · 

issue a non-binding decision by majority 

vote. 

(iii) The arbitrator or arbitration panel 

members may consult with EPA's Office 

of General Counsel on legal issues, but 

otherwise shall have no ex parte 

communications pertaining to the 

dispute. Federal employees who are 

arbitrators or arbitration panel members 

shall be neutral and shall not be 

predisposed for or against the position 

of any disputing party based on any 

Federal Trust responsibilities which 

their employers may have with respect 

to the Tribe. In addition, arbitrators or 

arbitration panel members who are 

Federal employees shall act 

independently from the normal 

hierarchy within their agency. 

(iv) The parties are not obligated to 

abide by the arbitrator's or arbitration 

panel's recommendation unless they 

voluntarily entered into a binding 

agreement to do so. (v) If a party to the dispute believes 

that the arbitrator or arbitration panel 

has recommended an action contrary to 

or inconsistent with the Clean Water 

Act, the party may appeal the 

arbitrator's recommendation to the 

Regional Administrator. The request for 

appeal must be in writing and must 

include a description of the statutory 

basis for altering the arbitrator's 

recommendation. 

(vi) The procedure and schedule for 

arbitration of individual disputes shall 

be determined by the arbitrator or arbitration panel in consultation with 

parties. 

(vii) If formal public hearings are held 

in connection with the actions taken 

under this paragraph, Agency 

requirements at 40 CFR 25.5 shall be 

followed. 

(3} Dispute Resolution Default 

Procedure. Where one or more parties 

(as defined in paragraph (g) of this 

section) refuse to participate in either 

the mediation or arbitration dispute 

resolution processes, the Regional 

Administrator may appoint a single 

official or panel. to review available 

information pertaining to the dispute 

and to issue il, w.ri!ren reco(nmendation 

for resolving the dispute. Review 

officials shall be EPA employees, 

employees from other Federal agencies, 

or other indiviquals with appropriate 

qualifications. Review panels shall 

include appropriate members to be 

selected by the Regional Administrator 

in consultation with the participating 

parties. Recommendations of such 

review officials or panels shall, to the 

extent possible given the lack of 

participation by one or more parties, be 

reached in a manner identical to that for 

arbitration of disputes specified in 

paragraphs (f}(2}(i) through (f}(2}(vii) of 

this section. 

(g) Definitions. For the purposes of 

this section: 

(1) Dispute Resolution Mechanism 

means the EPA mechanism established 

pursuant to the requirements of Clean 

Water Act section 518(e) for resolving 

unreasonable consequences that arise 

as a result of differing water quality 

standards that may be set by States and 

Indian Tribes located on common bodies 

of water. 

(2} Parties to a State-Tribal dispute 

include the State and the Tribe and may, 

at the discretion of the Regional 

Administrator, include an NPDES 

permittee, citizen, citizen group, or other 

affected entity. 

6. Section 131.8 is added to read as 

follows: 

§ 131.8 Requirements for Indian Tribes to 

be treated as States for purposes of water 

quality standards. 

(a) The Regional Administrator, as 

determined based on OMB Circular A105, may treat an Indian Tribe as a State 

for purposes of the water quality 

standards program if the Tribe meets the 

following criteria: 

(1) The Indian Tribe is recognized by 

the Secretary of the Interior and meets 

the definitions in § 131.3 (k) and (l}, 

(2} The Indian Tribe has a governing 

body carrying out substantial ' 

governmental duties and p~wers, 

(3} The water quality standards 

program to be administered by the 

Indian Tribe pertains to the 

management and protection of water 

resources which are within the borders 

of the Indian reservation and held by 

the Indian Tribe, within the borders of 

the Imlian reservation and held by the 

United States in trust for Indians, within· 

the borders of the Indian reservation 

and held by a member of the Indian 

Tribe .if such property interest is subject 

to a trust restriction on alienation, or 

otherwise within the borders of the 

Indian reservation, and 

(4} The Indian Tribe is reasonably 

expected to be, capable, in the Regional 

Administrator'!! judgment, of carrying 

out the functions of an· effective water. 

quality standards program in a manner 

consistentwith the terms and purposes· 

of the Act and applicable regulations. 

(b) Requests by Indian tribes for 

treatment as States for puq)oses Of 

water quality standards should be 

submitteq to the lead EPA Regional· 

Administrator. The application shall 

include the following information: 

(1} A statement that the Tribe is 

recognized by the Secretary of the 

Interior; 

(2} A de.scriplive statement , 

demonstrating that the Tribal governing 

body is currently carrying out 

substantial governmental quties ajld 

powers over a defined area. The 

statement shall: 

(i) 'nescribe the form of the Tribal 

government; 

(ii) Describe the types of 

governmental functions currently 

performed by the Tribal governing body 

such as, but not limited to, the exercise 

of police powers affecting (or relating to) 

the health, safety, and welfare of the 

affected population, taxation, and the 

exercise of the power of eminent 

domain; and 

(iii) Identify the source of the Tribal 

government's authority to carry out the 

governmental functions currently being 

performed. 

(3) A descriptive statement of the 

Indian Tribe's authority to regulate 

water quality. The statement shall 

include: 

(i) A map or legal description of the 

area over which the Indian Tribe asserts 

authority to regulate surface water 

quality; 

(ii) A statement by the Tribe's legal 

counsel (or equivalent official) which 

describes the basis for the Tribes 

assertion of authority; 

(iii) A copy of all documents such as 

Tribal constitutions, by-law's, charters, 

executive orders, codes, ordinances, 

and/or resolutions which support the 

Tribe's assertion of authority; and 

(iv) an identification of the surface 

waters for which the Tribe proposes to 

establish water quality standards. 

(4} A narrative statement describing 

the capability of the Indian Tribe to 

administer an effective water quality 

.standards program. The narrative 

statement shall include: 

(i) A description of the Indian Tribe's 

previous management experience 

including, but not limited to, the 

administration ·of programs and services 

authorized by the Indian SelfDetermination and Education 

Assistance Act ·(25 U.S.C. 450 et seq.); 

the Indian Miner<~l Development Act (25 

U.S.C. 2101 et seq.), or the Iridian 

' ' 
64896 Federal Register I Vol. 56, No. 239 / Thursday, December 12, 1991 I Rules and Regulations 

Sanitation Facility Construction Activity 

Act (42 U.S.C. 2004a); 

(ii) A list of existing environmental or 

public health programs administered by 

the Tribal governing body and copies of 

related Tribal laws, policies, and 

regulations; 

(iii) A description of the entity (or 

entities) which exercise the executive, 

legislative, and judicial functions of the 

Tribal government; 

(iv) A description of the existing, or 

proposed, agency of the Indian Tribe 

which will assume primary 

responsibility for establishing, 

reviewing, implementing and revising 

water quality standards; 

(v) A description of the technical and 

administrative capabilities of the staff to 

administer and manage an effective 

water quality standards program or a 

plan which proposes. how the Tribe will 

acquire additional administrative and 

technical expertise. The plan must 

address how the Tribe will obtain the 

funds to acquire the administrative and 

technical expertise. 

(5) Additional documentation required 

by the Regional Administrator which, in 

the judgment of the Regional 

Administrator, is necessary to support a 

Tribal request for treatment as a State. 

(6) Where the Tribe has previously 

qualified for treatment as a State under 

a Clean Water Act or Safe Drinking 

Water Act program, the Tribe need only 

provide the required information which 

has not been submitted in a previous 

treatment as a State application. 

(c) Procedure for processing an Indian 

Tribe's application for treatment as a 

State. 

(1) The Regional Administrator shall 

process an application of an Indian 

Tribe for treatment as a State submitted 

pursuant to § 131.8(b) in a timely 

manner. He shall promptly notify the 

Indian Tribe of receipt of the 

application. 

(2) Within 30 days after receipt of the 

Indian Tribe's application for treatment 

as a State, the Regional Administrator 

shall provide appropriate notice. Notice 

shall: 

(i) Include information on the 

substance and basis of the Tribe's 

assertion of authority to regulate the 

quality of reservation waters; and 

(ii) Be provided to all appropriate 

governmental entities. 

(3) The Regional Administrator shall 

provide 30 days for comments to be 

submitted on the Tribal application. 

.Comments shall be limited to the Tribf' s 

assertion of authority.: 

(4)1( a Tribe's asserted authority is 

subject to a competing or conflicting 

claim, the Regional Administrator, after 

consultation with the Secretary of the 

Interior, or his designee, and in 

consideration of other comments 

received, shall determine whether the 

Tribe has adequately demonstrated th11t 

·It meets the requirements of 

§ 131.8(a)(3). 

(5) Where the Regional Administrator 

determines that a Tribe meets the 

· requirements of this section, he shall 

promptly provide written notification tu 

the Indian Tribe that the Tribe has 

qualified to be treated.as a State for 

purposes l)f water quality standards ami 

that ·the Tribe may initiate the · 

formulation and adoption of water 

quality standards approvable under thu. 

part: . . 

[FR Doc. 91-29490 Filed 12-11-'-91: 8•'45 ami 

SIWNQ CODE 8560-60-11 

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