Fred Leutner 

Office of Science &Technology 

US. Environmental Protection Agency 

1200 Pennsylvania Avenue, NW (Mail Code 4305T) 

Washington, DC 20460 

July 7, 2014 

Mr. Leutner: 

The National Tribal Water Council (NTWC) supports EPA's effort to reinterpret provisions of the Clean 

Water Act (CWA) regarding treatment of tribes in a manner similar to a state (TAS) process. The NTWC 

encourages EPA to formally proceed in adopting the position that section 518 of the CWA is an expressed 

delegation by Congress for eligible tribes to administer CWA regulatory programs within their reservations 

irrespective of land ownership. 

The NTWC believes EPA's reinterpretation of the TAS provision will clarify and strengthen the regulatory 

authority of tribes to implement EPA statutes on reservation lands. The reinterpretation would eliminate 

the ongoing need for tribes to show inherent authority over non-member lands. The plain language of 

Section 518 would preempt the need to assess tribal TAS applications in light of the "Montana 

Exceptions," which has added an average 2.3 years to a tribe's application process for the WQS program. 

The current regulatory requirement for tribes to demonstrate a showing of inherent authority runs 

contrary to established federal Indian law and has the potential to undermine future tribal efforts to 

assert full authority over reservation environments. 

Through the congressional delegation approach, EPA has utilized a similar approach in upholding the use 

of Clean Air Act (CAA) TAS provisions as a delegation of authority to eligible tribes to allow them to 

manage air resources throughout their reservations regardless of land ownership. €PA is currently 

considering whether a similar interpretation is available under the comparable language of the CWA. 

Changes will be analyzed in light of the existing statutory language and in the context of EPA's prior 

interpretations and programmatic needs. 

711 Stewarts Ferry Pike, Nashville, TN 37214 

Ph.: (615) 467-1705 Fax: (615) 872-7417 

Steve Terry, St-. Project Coordinator, sLep&~~tinc.org 
Mr. Fred Leutner 

Page 2 

July 7, 2014 

The reinterpretation would validate the legal basis for tribal assertion of regulatory jurisdiction under the 

CWA, decrease the administrative burden of a case-by-case assessment of tribal authority, and avert the 

potential pitfalls of uncertain inherent authority analysis. 

Eliminating this regulatory barrier could result in an increase in the number of tribes planning to pursue 

TAS, or actively engaged in TAS process, for regulatory programs under the CWA. Currently, only 48 of the 

566 federally recognized tribes have successfully demonstrated their own inherent regulatory authority to 

EPA to implement CWA water quality standard programs. Increased tribal participation would benefit all 

tribes. 

The NTWC strongly believes that tribal advancement in the area of environmenta! regulation is best 

accomplished by congressional authorization or delegation. 

EPA has the opportunity to advance the assertion of tribal authority within tribal lands through the 

process of reinterpreting existing TAS provisions. This reinterpretation will allow tribes to take on the full 

mantle of regulatory authority within the boundaries of their tribal lands. 

The assertion of tribal environmental regulatory authority has thus far succeeded only with the strong 

backing of EPA. Tribes look upon EPA as a valuable partner in the ongoing struggle for equal footing 

under environmental regulatory statutes. Reinterpretation of existing TAS provisions by EPA will surely 

assist tribes in their long struggle to secure full regulatory authority as sovereign nations over tribal water, 

air, and land resources. 

The NTWC appreciates the opportunity to provide input and support to the reinterpretation of the CWA 

TAS provision. We look forward to collaborating with you and staff as the Agency considers issuing an 

interpretive rule. 

Respectfully, . . 

Ken Norton, Chairman 

National Tribal Water Council 

cc: Felicia Wright, OW Tribal Coordinator