Fred Leutner Officeof Science &Technology US. Environmental ProtectionAgency 1200 PennsylvaniaAvenue, NW (MailCode4305T) 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) regardingtreatment of tribes in a manner similar to a state (TAS) process. The NTWC encourages EPAtoformally proceed in adoptingthe position that section 518 of the CWA is an expressed delegation by Congressfor eligible tribesto administerCWA regulatory programswithin their reservations irrespectiveof 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 atribe's application processfor 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 reservationenvironments. 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.

711Stewarts Ferry Pike, Nashville,

### TN 37214

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

### St-. Project Coordinator, 

### sLep&~~tinc.orgMr. Fred Leutner Page 2 July 7, 2014

The reinterpretation wouldvalidate the legal basisfor tribal assertion of regulatory jurisdiction under the CWA, decrease the administrative burden of a case-by-case assessment oftribal authority, and avert the potential pitfallsof 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 inTAS process, for regulatoryprograms underthe CWA. Currently, only

### 48 of the 566federally recognized tribes have successfully demonstratedtheir own inherent regulatory authorityto EPA to implement CWA water quality standard programs. Increased tribal participationwould benefit all tribes. The NTWC strongly believes that tribal advancement in the area of environmenta! regulation is best accomplished by congressional authorizationordelegation. 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 totake onthe full mantleof regulatory authoritywithinthe boundariesoftheir 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 intheir longstruggle tosecure full regulatory authority as sovereign nations over tribalwater, air, and land resources. The NTWC appreciates the opportunity to provide input and support tothe 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 NationalTribal Water Council

cc: FeliciaWright, OW Tribal Coordinator