### 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 ofthe CleanWater · 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 ofwater.
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 ofScience and Technology, room 919 East Tower, 401 M Street, SW., Washington, DC, between the hours of8 a.m. and4:30
p.m. on business days. A reasonable fee will be charged for copying. Inquiries

canbe made by calling 202-260-1315.

FOR FURTHER INFORMATION CONTACT: David K. Sabock, 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 ofTribes as States 2. Dispute Resolution Mechanism 3. Establishing WaterQuality Standards on Reservations 4. Other Comments D. Regulatory Flexibility Act E. Paperwork Reduction Act F. Regulatory Impact Analysis

A. Background

Section 303(c) ofthe Clean Water Act (33 U.S.C. 1313(c)) requires the States to develop, review, and revise water quality .standards for all surface waters ofthe 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 ofthe CWAprovides that States maygrant or deny "certification" for Federally permitted orlicensed activities that may result in a discharge
to the waters ofthe 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 ofthe CWA enumerated in section 401(a)(1). These sections include those requiring water quality standards and effluent limitations. Ifa State denies certification, the Federal permitting orlicensing 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 issuedby the State in which the discharge originates, but may be issued in certain circumstances by an interstate agency

orthe Administrator.

The February4, 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 section401 (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 ofwater.

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 ofthe section 303
water quality standards and section 401 certification programs ofthe 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 ofwater. Pursuant to CWA section 518, the proposal had been prepared in consultation with States and Indian Tribes. The proposal was developed with the assistance ofan informal work group composed of representatives from Indian Tribes, States, and EPA. In addition, a national consultation meeting involving States andTribes was held in Denver, Colorado in June of 1988 for the purpose ofobtaining additional comments. Finally, EPA distributed a number of drafts ofthe proposal to all States and Tribes (following a mailing list of Federally recognized Tribes obtained by the Office ofWater) 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 of25 people registered at the three hearings. The public comment period closed on December 22, 1989. EPA received a total of34 written
comments on the proposed rule.

EPA notes that more comments were received on the various drafts ofthe proposed rule than on the proposed rule which was ultimately published. EPA believes that many ofthe difficult issues

were resolved during the consultation period prior to proposal, and that this explains whyrelatively few comments

werereceived on the proposal and why relatively few changes to the proposal

were required in preparing today's final rule. Anotherreason is that EPA had previously published similarprocedures 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 ofthe public comments.

EPA received several comments on the provision ofthe 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) Areagreeable to all

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## I Rules and Regulations 64877 ·

affected parties, (2) are knowledgeable concerning the requirements ofthe
water quality standards program, (3) have a basic understanding ofthe 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 ofother Federal agencies, or "otherindividuals 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 ofno 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 ofthe dispute resolution mechanism(§ 131.7(d)). The referenced section requires EPA, upon a determination byEPA 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 ofwater, (3) public notice in local newspapers, radio, and television, as appropriate, and (4) publication in tradejournal newsletters, and (5} other means as appropriate.

Many ofthe 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 oftoday's rule. The substance ofthese responses and any additional guidance needed will be added to the Water Quality Standards Handbook which contains the program guidance supplementing the requirements ofthe 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 ofTribes as States, (2) dispute resolution mechanism, (3) establishing water quality standards on Indian reservations, and (4) other
comments. Comments discussed within each ofthese sections have been further categorized by topic.



### 1. Treatment ofTribes as States

Comments on the Authority Requirements

a. The Scope ofInherent Tribal Authority



### Comment: The issue ofwhether and how EPA should require Tribes to demonstrate that they meet the requirements ofsection 518(e)(2) ofthe CWA, i.e., that they can demonstrate authority to regulate water quality within the boundaries oftheir reservations, attracted significant
comment. Numerous commenters remarked on the significal).ce ofthe Supreme Court's decision in

### Brendale v. 

### Confederated Tribes andBands ofthe Yakima Nation, 492 U.S. 408, (1989) for EPA's programs and today's regulations, although there were widely differing views ofhow to read the decision. Several commenters asserted that 

### Brendale'clearly indicates that an Indian Tribe may not enforce its water quality standards againstnon-members ofthe Tribe on non-Indian-owned fee lands within the boundaries ofthe reservation orthat, 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 thatTribes invariably possess inherent authority to regulate all reservation waters, and that EPA should
presume the existence ofsuch 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 ofregulating water quality on fee lands within the reservation, even if section 518 is not an express delegation ofauthority (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 oftheland 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 overproperty in the Tribal

area and the State should have exclusive zoning authority over nonIndian ownedproperty in the fee area. The decision reflects some difficult issues in this area ofthe law and, as the
comments indicated, has generated considerable controversy over the
extent ofTribal authority.

Given the lack ofa majority rationale, the primary significance of

### Brendale is in its result, which was fully consistent with

### Montana v. 

### UnitedStates, 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 ofnon- 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 ofnon-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 ofthe 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 ofthe 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 Tribaljurisdiction 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

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## 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 ofother
commenters that EPA make a conclusive
statement regarding the extent ofTribal jurisdiction over fee lands for all Tribes and all waters or even a statement regarding any particular reservation, except in the context ofan actual
treatment as a State application. This is consistent with the approach the Agency adopted under the Safe Drinking WaterAct, when it determined that it would not "automatically assume," or adopt, in the first instance, a rebuttable presumption oftribal authority overall
waterwithin a reservation that would operate even in the absence ofany factual evidence. See 53 FR 37396, 37399 (September 26, 1988). Nonetheless, EPA

sees no reason in light ofBrendale to

assume that Tribes would beperse 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 ofthe evolving case law as reflected in Montana and Brenda/e. The
extent ofsuch tribal authority depends

on the effect ofthat activity on the tribe. As discussed above, in the absence ofa contrary statutory policy, a tribe may regulate the activities ofnon-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 ofthe 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. at431 (White,

## J.). In addition, in a

more recent case involving tribal criminaljurisdiction, a majority of !he Court indicated in dicta that a tribe may exercise civil authority "where the exercise oftribal authority is vital to the maintenance oftribal 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. at462 (Blackmun, 

### J.) (test for inherent trib.al authority whether exercise ofauthority "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 ofthe 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 ofthe test. In response to this uncertainty, the Agency will apply,

as an interim operating rule, a formulation ofthe standard that will require a showing that the potential impacts ofregulated activities on the tribe are serious and substantial.

The choice ofan Agency operating rule containing this standard is taken solely as a matter ofprudence in light of judicial uncertainty and does not reflect

an Agency endorsement ofthis standard
perse. 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 ofsuch a rule by the Agency should not create an improper burden ofproofon tribes or create the administratively undesirable result ofcheckerboarding reservations.

Whether a tribe hasjurisdiction 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 ofthe 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

.. KeystoneBituminous CoalAssoc. 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 ofa 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
watermanagement, recognizing that clean water. including critical habitat (i.e., wetlands, bottom sediments. spawning beds, etc.), is absolutely crucial to the survival ofmany Indian reservations.

The Agency believes that Congressional enactment ofthe Clean Water Act establishes a strong federal interest in effective management of
water quality. Indeed, the primary· ·Objective ofthe CWA "is to restore and maintain the chell_lical, physical, and biological integrity ofthe Nation's waters" (section 101(a)) and, to achieve that objective, the Act establishes the goal ofeliminating all discharges of pollutants into the navigable waters of the U.S. and attaining a level ofwater quality which is 

### fishable and swimmable (section 101(a)(1)-(2)). Thus the statute itselfconstitutes, 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 ofthe mobile nature ofpollutants in surface
waters and the relatively small length/ size ofstream segments or other water bodies on reservations, it would be practically very difficult to separate out the effects ofwater 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 ofthe tribal lands. This also suggests that the serious and substantial effects ofwaterquality impairment within the non-Indian portions ofa reservation are very likely
to affect the tribal interest in water quality. EPA believes that a "checkerboard" system ofregulation, whereby the Tribe and State split up regulation ofsurface water quality on the reservation. would ignore the difficulties ofassuringcompliance 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 ofsurface water quality to

assure compliance with the goals ofthe 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 ofStates to prevent, reduce, and eliminate pollution, [and] to plan the development and use (including restoration. preservation, and enhancement) ofland and water resources" section 101(b). By extension,

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the treatment ofIndianTribes as States

me;ms that Tribes are to be primarily responsible for the protection of resrrvation water resources. As Senator Burdick, floor manager ofthe 1987 CWA Amendments, explained, the purpose of section 518 was to "provide clean water for the people ofthis Nation." 133 Cong. Rec S1018 (daily ed. Jan 21, 1987). This goal was to be accomplished, he asserted, bygiving "tribes • • • the primary authority to set water quality standards to assure fishable and swimmable water and to satisfy all beneficial uses." !d.

In light ofthe Agency's statutory responsibility for implementing the environmental statutes, its interpretations ofthe intent ofCongress 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 ofwater 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 ofthe land but requires only that, however the land is used, damage to the environment is kept within prescribed limits." California Coastal Commission v. 

### GraniteRock Co., 480 U.S. 572, 587 (1987). The Court has relied onthis 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 ofprotecting public health and safety, which is a core governmental function, whose exercise is critical to self-government. The special status ofgovernmental actions
to protect public health and safety is well established.' By contrast, the

1This special status has been reaffirmed by all nine justices in the context ofFifth Amendment takings law. SeeKeystone 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. at420 n.5 (White, J.) (listing broad
range ofconsequences ofstate zoning decision). Moreover, waterpollution is by nature h,ighly mobile, freely migrating from one localjurisdiction 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 ofa 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 offacts 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 WaterAct. The Tribe must also explicitly assert that impairment ofsuch waters by the activities ofnon-Indians, would have a serious and substantial effect on the health and welfare ofthe Tribe. Once the Tribe meets this initial burden, EPA will, in light ofthe facts presented by the tribe and the generalized statutory and factual findings regarding the importance ofreservation waterquality discussed above, presume that there has been an adequate showing oftribal jurisdiction offee lands, unless an appropriate governmental entity (e.g., an adjacentTribe or State) demonstrates a lack ofjurisdiction on the part ofthe Tribe.

The Agency recognizes that jurisdictional disputes**b~tween** 

### tribes and states canbe complex and difficult and that it will, in some circumstances, be forced to address such disputes. However, EPA's ultimate responsibility is protection ofthe environment. In view ofthe mobility ofenvironmental problems, and the interdependence of variousjurisdictions, it is imperative that all affected sovereigns work cooperatively for environmental protection, rather than engage in confrontations overjurisdiction.

b. The Effect ofSection 518 onTribal Authority over Non-Indian Activities

Comment: EPA has received letters from three members ofCongress, Senator Simpson, Senator Baucus, and Representative Morrison, regarding the impact ofBrendale on EPA's Indian Policy and the development of "treatment as a State" regulations for EPA water programs in light ofthe legislative history ofsection 518. All three commenters asserted that Congress did not intend to expand the
scope ofTribal authority over nonIndians on the reservation by the
passage ofsection 518.

Rep. Morrison asserted that he inserted into the Congressional Record a memorandum written by staffon the House Committee on Interior and InsularAffairs 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 Tribaljurisdiction

over non-members on reservations. ("Indian tribes have the right to regulate lands and other natural resources_within the reservation, includingnon-Indian owned fee lands orresources." !d. (emphasis added)). Rep. Morrison stated his beliefthat Congress did not, by the
passage of section 518, expand the scope ofTribal authority over non-Indians. In light ofthis legislative history, Rep. Morrison asserted that, consistent with Brendale, EPA should not allow Tribal regulation ofnon-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 ofthese Congressional commenters asserted that the legislative history ofsection 518 clearly shows that it was not intended
to affect rights to water quantity under State law. The concerns raised by these Members ofCongress 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 IndianTribes
to regulate such fee lands, despite indications in Brenda/e to the contrary.

By contrast, Senators McCain, Burdick, andInouye 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

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commenters cited 

### Brenda/e for this proposition. The latter argument ofthese
commenters is based upon the opinion ofJustice White in 

### Brenda/e; Justice White indicates that certain statutes may delegate Federal authority to Tribes, thereby providing a basis for authority overall 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 ofnonmembers of the Tribe. Compare 18 U.S.C. 1151, 1161 {1982 ed., andSupp. V); 33 U.S. C. 1377(e) and(h}{1) {1982 ed., Supp. V) (i.e., sections 51B(e) and 51B[h)(1) ofthe CWA].
492 U.S. at428 (1989) (White, J.) (emphasis added). This language clearly categorizes the two cited statutory schemes as express delegations of Federal authority. Thus, Justice White, 

### interalia, cites the Clean WaterAct as

an example ofan explicit delegation of authority over non-Indian activities to Indian Tribes. 

### Response: EPA has fully considered the Congressional comments and their interpretation ofthe legislative history ofsection 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 ofsection 518 is clear and expresses an intent to limit the scope ofTribal authority. EPA
notes that other legislative history might beinterpreted 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 Iread that provision, it enables qualified Indian tribes to exercise the

same water quality rl;lgulatory jurisdiction with respect to waterthat trav(lrses, borders,

oris otherwise located within their reservations [paraphrasing section 51B[h)(1) and 18 U.S.C. 1151(a]]that States have for regulation ofwater outside Indian reservations. Is my understanding ofSection 51B(e) correct?

Mr. Burdick: Yes. The intent ofthe 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 ofthe Conference Committee, agrees with SenatorInouye's statement.

However, in EPA's view this colloquy is ambiguous andinconclusive. Senator Burdick, in responding to Senator Inouye, agrees that under section 518 Tribes may regulate waters only ifthey

are already "within Indianjurisdiction." However, SenatorBurdick was only recognizing the status quo, 

### i.e.• whatever is within Indianjurisdiction 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 Indianjurisdiction." 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 Indianjurisdiction."

Further, ifthis 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 SenatorBaucus. In that discussion, SenatorBurdick reiterated that section 518 was not intended to affect existing waterquantity 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 staffmemorandum cited abovesupports

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 ofthis memorandum into the Congressional Record could suggest that the House agreed with that view; however, this aspect ofthe memorandum was never the subject of House discussions, which focused almost exclusively on issues relating to waterrights.

EPA believes that ifCongress had intended to make a change as important

as an expansion ofIndian 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 ofCongressional intent to do so. See 

### Montana, 450 U.S. at 564. Therefore, EPA has decided that it will, as discussed above, continue to recognize inherentTribal 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 ofTribal authority in light ofthe relevant principles ofFederal Indian law. EPA believes that this approach will best effectuate the overall purposes ofthe statute.

EPA agrees with those commenters who stated that Justice White's opinion in 

### [Jrendale canbe read to suggest a contrary conclusion, and to indicate that
atleastfourjustices ofthe 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 ofthe Court and was not necessary to the decision even ofthe plurality thatjoined 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 ofsection 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 afterthe 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 ofauthority is unnecessary,

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inappropriate. andflows from a misunderstanding ofIndian 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 Staterequests in the absence of verifying documentation. In addition, in light ofthe legislative history ofsection 518, the question ofwhether section 518(e) is anexplicit delegation of authority overnon-Indians is not resolved. Therefore, EPA does not believe it

### is currently appropriate to eliminate the requirement thatTribes make an affirmative demonstration of their regulatory authority. EPA will authorizeTribes to exercise responsibility for the water quality standards program once the Tribe shows that, in light ofthe factual circumstances and the generalized findings EPA has made regarding reservation waterquality, 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 ofthe 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 ofthe area over which the IndianTribe 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 offee 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 areTribes. 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 offee lands andlands owned by non-Indians in all

cases is unnecessary andunduly burdensome. Finally, EPA notes that § 

### 131.8(b)(5) gives the Regional Administrator the discretion to require whateveradditional 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 ofprograms authorized under section 518(e){2). The provision authorizes EPA
to treat a Tribe as a Statefor water

resources which are :
held by an IndianTribe. held in trust for Indians, heldbya member ofan IndianTribe ifsuch property interest is subject to a trust restriction on alienation, orotherwise within the borders of anIndian reservation. 

### (emphasis added)

EPA has consistently read the phrase "or otherwise within • • 

### *" as a separate category ofwaterresources and also as a modifier ofthe preceding three categories ofwaterresources. thus limiting the Tribe to acquiring treatment

as a State status for the four specified categories o(waterresources within the. borders ofthe reservation.

Comments received suggested that EPA should alter its reading ofthis provision to allowTribes to qualify for
treatment as a State over all water

resources within itsjurisdiction. These
comments asserted that limitingTribes
to waterresources within the reservation would prevent a Tribe from obtaining treatment as a State status

over waterresources 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 orheld 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
waterresources within the territorial jurisdiction ofthe Tribe that lie outside reservation borders. One commenter pointed out that often such lands are subject to Tribal or Federaljurisdiction and are thus beyond the police power and regulatory authority ofthe State in which they are located. This comment concluded that failure to provideTribes with an opportunity to obtain treatment as a State status over such lands would
create "regulatory voids" in which neither States norTribes have clear authority. Several comments suggested that resolving this issue could be accomplished simply by revising the definition ofFederal 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 ofthe preceding three categories ofwater

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 ofwaterresources, because to do so would render the three previous clauses superfluous. These
commenters therefore conclude that section518(e)(2) should not be read as authorizing Tribes to regulate nonIndian owned lands within the boundaries ofthe reservation.

Response:

### Under today's rule, Tribes

are limited to obtaining treatment as a State status for only waterresources within the borders ofthe reservation

overwhich they possess authority to regulate water quality. The meaning of the term "reservation" must, ofcourse, be determined in light ofstatutory law and w.ith reference to relevant case law. EPA considers trust lands formally set apart for the use ofIndians to be "within

a reservation" for purposes section 518 (e)(2), even ifthey have not been formally designated as "reservations." Oklahoma Tax Commission 

### v. Citizen BandPotawatomiIndian Tribe of Oklahoma. 

### 111 S. Ct. 905, 910 (1991). This means it

### is the status and use ofthe land that determines ifit 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

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ifthe Tribe can demonstrate the requisite authority over such water

resources.
Comments on the Capability Requirements

Comment: 

### A variety ofcomments

were received concerning the general issue ofTribal capability(§ 131.8(a)(4} and (b)(4)}. Comments on this question ranged from suggesting that EPA should require no demonstration ofcapability
at all to making the capability requirements stronger. Several.
comments asserted that rejecting Tribes based on capability will only heighten the unevenness ofexperience between States andTribes.

Response:

### EPA made no change in the regulation. The provision is not unduly burdensome andEPA intends to apply similar procedures for Tribes qualifying

as States in all CWA programs. The Clean WaterAct 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 manyTribes the assumption ofvarious Clean WaterActprograms is

new. Information necessary for EPA to make determinations ofcapability 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 providejudicial review of section401 certification rulings, Tribal section 401 certifications should also be subject to judicial review. Related comments asserted that the rule should require, as part ofthe demonstration ofcapability,

a demonstration ofseparation ofpowers for executive, legislative, andjudicial functions, or at least describe how bifurcation ofTribal regulatory and proprietary roles will occur.

Response:

### EPA disagrees that States

are required to providejudicial reviews ofsection 401 certifications. Judicial reviews ofsection 401 certifications are conducted based on the requirements of State laws, not the Clean WaterAct. Therefore, EPA has not required Tribes
to provide such judicial review, as it is a matter ofTribal law. Similarly, EPA has
not required Tribes to demonstrate separation ofpowers because such a demonstration is not required by the Clean WaterAct. EPA will, however, in the context ofdeciding to authorize Tribal NPDES programs or404 permit
programs, considerpotential conflicts of interest where the Tribe would be in the position ofissuing 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 ofmanagerial experience (see section 131.8(b}(4)(i)}.

Response:

### In evaluatingTribal 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, otherFederal Agencies, or of Tribal origin. For example, several Tribes are known to have participated in developing areas-wide water management plans orTribal water quality standards. EPA will also look for evidence ofhistorical budget allocations dealing with public health or environmental programs along with any experience in monitoring inrelated
programs. In general, EPA will look favorably on Tribe's which have experience in managing environmental
programs, because such experience is an indicatorofexisting capability and commitment to environmental protection. In most cases, EPA anticipates that submission ofa 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 ofacquiring 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 3years 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 ofthe demonstration ofcapability.

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 ifthe Tribe receives authority prior to actually achieving that capability. Other comments supported inclusion ofthis 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 ofthe authority. Othercomments opposed such a provision (e.g., because it is
counterto 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 ofadequate Federal financial andtechnical assistance.

Conflicting comments on the option to require Tribes to submit draft water quality standards as part ofthe demonstration ofcapability were received. A number ofcomments indicated that such a provision would be burdensome, unproductive, and oflittle practical purpose. Other comments, however, supported such a provision because draft standards would provide evidence oftechnical skills and would allow review ofTribal water quality standards early in the process.

Response: 

### EPA made no change in the proposed regulation. EPA believes that
anyTribe 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 ofneeded personnel as well

as reliable funding sources. This decision will also provide consistency with other Clean Water Act programs.

Although submission ofdraft water quality standards was not added as a requirement, EPA notes that where Tribes have developed water quality standards programs, submission ofthe

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### 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 programTribes should become familiar with and give serious consideration to the requirements and associated resource impacts ofassuming the burden ofthe 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, canrequire 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 ofnecessary numeric water quality criteria for toxic pollutants and, ultimately criteria based

on biological measures ofwaterbody 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 nearfuture.

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 ifnot currently available. EPA believes this to be a necessary and important showing in support ofthe 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 offunding

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 ofthe 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 ofthe 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 ofsuch grants may be quite useful to Tribes in developing the capabilities needed to qualify for the standards program.
Comments on the Complexity ofthe Process



### Comment: A variety ofcomments

were received concerning the process EPA has establishedby which a Tribe
may qualify for treatment as a State under both the Clean Water Act and the Safe Drinking WaterAct. This process is described in § 131.8 ofthe rule and

covers the requirements for Indian Tribes to be treated as States for
purposes ofwater 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 allowTribes to meet the legal requirements for all CWA
programs with one application. In general, commenters suggested that the
process be streamlined to pose less ofa 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 ofthose previously discussed in section B-Changes to the Proposed Rule).

EPA has developed one procedure applicable to all waterprograms. 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 ofany inherent fault in the procedure. It is expected that as both parties gain

more experience, such delays will be minimal. 

### Ifa Tribe has already submitted an application for treatment

as a State for another program, very little ifany 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 ofthis 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 otherprograms. The two items are the

name ofthe agency ofthe Indian Tribe charged with establishing, reviewing, implementing and revising water quality standards and a description ofthe 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) ofthe 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 ofthe standards program are split among various State offices and branches ofgovernment. Since this may also hold true for Tribal governments, EPA has maintained the requirements as proposed. However, ifthe 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

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all information necessary is submitted. In response to a specific comment, EPA
notes that submittal ofthe required "sources of authority" under § 131.8(b)(2)(iii) does not require the

same level ofdetail as the demonstration ofauthority required under§ 131.8(b)(3) and, in general, a briefstatement andreference to the assertion ofauthority 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 orunnecessary. While they
may be related, eachrequests a different piece ofinformation EPA believes is
necessary to make aninformed judgment on the Tribal application. Again, however, ifthe Tribe covers

more than one item in a portion ofits 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 opportunityprovided 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 withEPA's Indian policy. Othercomments suggested that States
comment along with everyone else during a generalpublic commentperiod.



### Response: The comments which suggested thatStates shouldnotbe allowed to reviewTribal assertions of authority because Tribes do notreview State applications for primacy appear to mix primacy requirements under the Safe Drinking WaterAct orotherCWA
programs (such as section402 NPDES or section404 dredge andfill) with those established underClean WaterAct section 303. CWA section 303, under which this rule is promulgated, directs States to adopt waterquality standards. There is no application process involved, noris participation by the States optional. However. IndianTribes, under CWA section 518, must go through

a process to qualify for treatment as States.

The provision allowing participation by othergovernmental entities inEPA's rev.iew ofTribal authority does not imply that States orFederal 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 ofa commenterwho challenges the Tribe's assertion of authority; EPA will make an independent evaluation oftheTribal 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 barrierto 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 notnecessarily delay the Agency's decisionfor to treat theTribe

as a State ofthe non-disputed areas.



### Comment: Several commenters suggested thatEPA should provide more definition regarding the "governmental entities" which will beprovided notice and an opportunity to comment on the Tribe's assertion ofauthority (see § 

### 131.8(c){2)).



### Response: EPA defines the phrase "governmental entities" as States, Tribes, and otherFederal 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 ofauthority. Neighboring Tribes will be treated as "governmental entities" regardless ofwhether the neighboring Tribe is treated as a State for purposes ofsection 303. Where such governmental entities are States, EPA intends to providenotice and an opportunity to comment to the most appropriate State contacts which may include, for example, the Governor, Attorney General, orthe appropriate environmental agency head. The rule limits the Agency to only considering
comments from such "governmental entities." Local governments such as cities and counties orotherlocal governments are not included in the definition of "governmental entities," andEPA will not considercomments received from suchgovernments in reviewing Tribal assertions ofauthority.

EPA recognizes that city and county governments which maybe subject to or affected by Tribal standardsmay also
wantto comment on the Tribe's assertion ofauthority. Although EPA believes that the responsibility to coordinate with local governments falls primarilyupon the State, the Agency will make an effort to provide notice to local governments byplacing an announcementin appropriate
newspapers. Since the rule limits EPA to considering comments from governmental entities, such newspaper announcements will advise interested parties to direct comments onTribal authority to appropriate State governments.

The process ofnotifying States and Tribes and consulting with the Department ofInterior, as delineated in this and otherEPA regulations implementing the Clean WaterAct and the Safe Drinking WaterAct, 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 byEPA. Such notification and consultation procedures

were not and are not intended to establish any form ofadjudication or arbitration process to resolve differences between State andTribal governments. Rather, EPA has a duty to determine whethera Tribe has adequate authority, as definedbyfederal law and EPA policy, to carry out the grant or program underconsideration. The notification and consultation procedures assistEPA in making this determination byproviding information and perspectives from the points ofview of neighboring Tribal and State governments and the federal agency having extensive expertise in federal Indian law.



### Comment: Iti8 unlawful to limit public
comment tojusttheTribal demonstration ofauthority. Section 131.8 should allowpublicreview ofall four statutory criteria.



### Response: CWA section 518 provides EPA with the authority to determine whetherIndianTribes are qualified to be treated as States. The CWA does not require EPA to provide for public
comment onTribal applications. For three ofthe 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 andpotentially delay the process. For the authority criterion, EPA has provided for a 30 day commentperiod by appropriate governmental entities because the Agency believes that it will beimportant·togatherall available information regarding Tribal authority priorto 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 oftheFederal Register 

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### 64885

Interior in making a determination concerning challenges to a Tribe's assertion ofauthority (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 ofthe Interior's designees the Associate Solicitor, Division ofIndian Affairs and the Deputy to the Assistant SecretaryIndian Affairs (Trust and Economic Development). EPA will forward a copy ofthe application and any documents asserting a competing orconflicting claim ofauthority 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 Solicitorreceives the application. Comments from the InteriorDepartment will beprimarily a discussion ofthe law applicable to the issue to assist EPA inits own deliberations. Responsibility for legal advice to the EPA Administrator orthe other EPA decision makers will remain with the EPA General Counsel. EPA does not believe that the consultation
process with the Department ofInterior should involve notice and opportunities for input by States andTribes because such parties are elsewhere provided appropriate opportunties to participate in EPA's review ofTribal authority.



### Comment: Several comments suggested that, once EPA makes a determination regarding a Tribal application, EPA should provide notice ofits decision to State, Tribal, and local governments and all commenters on the Tribal assertion ofauthority, and should publish a lists ofTribes treated as States in the Federal Register.



### Response: EPA will take all reasonable means to advise interested parties ofthe 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 ofthe 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 ifa 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 otherreason) because States received unlimited assistance, both technical and dollars, and that withdrawal ofrecognition is counter to the Congressional mandate. Opposing views were offered that there should be

a provision to withdrawrecognition as a State from a Tribe.



### Response: Rather than formally deny the Tribe'srequest, EPA will continue to work cooperativelywith the Tribe in a continuing effort to resolve deficiencies in the application orthe Tribal program

so thatTribal recognition as a State may

occur. EPA also concurs with the view that the intent ofCongress and the EPA Indian Policy is to support Tribal governments in assuming authority to manage various waterprograms. As previously discussed in the response to comments onthe 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 certainwaterprograms due
to the failure ofthe State orTribe to properly execute the programs. Specifically, in the water quality standardsprogram, the Administrator has authority to promulgate Federal standards. Therefore, no change was needed in the regulation.



### Comment: A number ofcomments suggested that EPA specify a timeframe

or change the timeframe associated with the various steps in the application reviewprocedure(§ 131.8(c)).

Withregard to the review ofthe Tribe's assertion ofauthority (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 reviewperiod.

With regard to final determinations (see § 131.8(c)(5)), several comments suggested thatEPA should complete its review andrespond to Tribes within 60 days afterreceipt ofan application. Othercomments suggested thatEPA should conduct a completeness review within 30 days ofreceipt ofa Tribal

·application. In general, a number of
comments advocated some time limit within whichEPA wouldbe 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 Waterprograms. 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 ofthe
comments appear to be based on early experience with the "treatment as a State" process. EPA believes that as bothTribes, 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 onTreatment ofTribes

as States



### Comment: Several commenters suggested that, as part ofthe treatment

as a State process, EPA require Indian Tribes to protect constitutional rights of non-Tribal members, thatTribes waive their sovereign immunity, and provide for voting rights for non-members.



### Response:EPA notes that constitutionalrights ofboth Indians and non-Indians exist without explicit recognition in a Federalregulation. The regulation provides a mechanism for a Tribe to demonstrate that it meets the criteria ofCWA section 518(e). EPA believes it is inappropriate to consider
any other factors. The issues raised by these comments are far beyond the purview ofEPA. Such issues must be properly dealt with in the Courts orby Congress.



### Comment: EPA should make clear that qualification for treatment as a State under one program is not dispositive for applications under otherprograms.



### Response: That is the correct interpretation ofthis rule. As discussed previously, however, EPA expects that

once a Tribe has qualified for one program, the key step toward assumption ofotherprograms, 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 ofsection 510 ofthe CWA apply with equal force to water quality standards adoptedbyboth States andTribes, 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 expressedits view that, because of section 510, it may not disapprove either Tribal or State standards solely on the64886 Federal Register

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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 ofthe effect ofsection 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 ofthose mentioned in section 518(e)(2) (which lists the sections ofthe CWA for which EPA is authorized to treatTribes as States), EPA is precluded from reading section 510 as applying to standards setby 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 ofthe CWA sections referenced in section 518(e)(2) reveals that all ofthese provisions are CWA regulatory program elements or grant authorizations that are implemented by/funded for States. The sections ofthe 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 ofthe CWA that discusses a role for State governments that is not a regulatory program provision orgrant.

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 ofsection 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, SenatorBurdick,

a member ofthe Conference Committee

on the Water Quality Act of 1987, stated that:

The intent ofthe conferees was to assure that Indian tribes wouldbe able to exercise the

same regulatoryjurisdiction overwater qualitymatters with regard to waters within Indian jurisdiction that States have over their
water. The conferees believe that tribes shouldhave theprimaryauthority to set
waterqualitystandards to assurefishable

2 One notable exception is section 405, which establishes a Federal/State permit program for the disposal ofsewage sludge. EPA has already determined that it is appropriate to treatTribes as States for purposes ofsludge programs, despite the omission ofsection 405 from section 518(e)(2). andswimmable waterandto satisyall beneficialuses. The act alsoprovides 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 establishedby today's regulation.

EPA also believes there are strong policy reasons to allowTribes to set any water quality standards consistent with 40 CFR 131.10. First ofall, it puts Tribes and States on an equal footing with respect to standard setting.There is no indication that Congress intended to treatTribes 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 underFederal law. EPA has developed
water quality criteria under the authority ofsection 304(a) ofthe CWA; these criteria, however, are only guidance for use by States in developing their own standards. The Federal recommendations are not enforceable absent State orFederal waterquality 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 ofsection 510 is reasonable and fully consistent with the legislative intent ofSection 518.



### Comment: EPA specifically invited
comments regarding whether the ·Agency should attempt to establish scientific factors by which overlystringent waterquality 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 ofresolving 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 ofnumeric criteria more stringent than required to meet the CWA's fishable and swimmable goals. A numbe'r ofthese 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 ofcultural/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 ofTribal 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 waterquality standards regulation already requires that criteria

, be developed based on scientifically

defensible methods. EPA also does not advocate the adoption ofwater quality criteria more stringent than natural background waterquality. 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 beliefis premised on the Agency's legal interpretation ofCWA section 510 (discussed above). Thus. EPA does not require justification or otherevaluation ofthe scientific merit of criteria which, based on a comparison with EPA's CWA section 304(a) criteria recommendations, meet or exceed levels ofwater 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 ofcost-effectiveness and achievability
cannot override this requirement. Under the CWA, economic factors may be considered in conjunction with designating appropriate wateruses.

In reviewing water quality standards submitted by States andTribes, EPA will continue to evaluate the adequacy

### Federal Register 

## I Vol. 56, No. 239 / Thursday, December 12. 1991 

## I Rules and Regulations 64887

·ofnumeric criteria.Where EPA determines that such criteria are substantially more stringent than
necessary to meet the fishable and swimmablegoals ofthe CWA andare

more stringent than presently existing
waterquality conditions, EPA will advise the StateorTribe, and affected adjacent States orTribes ofthisfinding. EPA will usebestprofessionaljudgment
to make such determinations. Such determinations will not begrounds for disapprovalbecause, asexplained above, EPA doesnotbeHeve theAgency has thelegal authority to disapprove a State orTribal water quality criterion solely on the basis that EPA considers the standard to be more stringent than required by theAct.



### Comment: EPA should set a time limit (e.g., 12 months. 18months) afterreceipt oftherequest for disputeresolution within which a mutually acceptable agreement must bereached via either mediation orarbitration(§ 131.,(£) (1)**an~** (2)). 

### Ifafter18months thepartiesdo
not seem close to an agreement the Agency should act to resolvethe dispute.EPA has the authority to actin

some situations (e.g.. where anupstream discharger is violating the waterquality standards in a downstreamjurisdiction). Lack oftime tablesmay allow disputes
to continuefor indefiniteperiods oftime and to beintentionally prolonged by uncooperativeparties.



### Response: No time limit wasadded to the rule.WhileEPA intends to proceed

as quickly aspossible andto encourage theparties to the dispute toresolveit quickly and toestablish informal time frames. thevariety ofpotential disputes
to beresolved would appear topreclude EPA specifying 

### a single regulatory time limit. Itis expected that somedisputes will be resolved very quickly while others may take longer than the suggested 18months. EPA believes itis better to obtain a reasonable agreement/decision than to arbitrarily establish a timeframe within which an agreement/decision must bemade.

EPA notes that the dispute resolution mechanism includedin today'srule provides the Regional Administrator with several alternativecourses of action. EPA believes that having a variety ofalternative options may help
to prevent delays because theRegional Administratorwill beable to select the option most appropriate tothe taskand. where necessary, proceed from one option to another to conclude a dispute resolution action in a timely manner.An example would 

### be whereanarbitration panel is unable toreach a unanimous finding. In such a situation theRegional Administratormay. after a reasonable period oftime, direct the panel to issue a nonbinding decision bymajority vote.

EPA also believes that specifying such

a time limit would beineffectivein thosecaseswhere at the end ofthe time limit the Agency would have insufficient authority to "acttoresolve that dispute,'' because ofCWA section 510 which, as discussed above, would prohibit EPA from disapproving. standards solely on the basisthatEPA considers the standard to be more stringent thanrequired bythe Act.

In some cases, EPA recognizes that theAgency will have authority to "actto resolve the dispute." An example would be a situation where a National PollutantDischargeElimination System (NPDES) permit for anupstream discharger does not provide for the attainment ofthe waterq'uality standardsfor a downstreamjurisdiction. EPA notes that the existingNPDES permitting and certification processes under the CWA may be utilized bythe downstreamjurisdiction to address such situations. and that today'srule does not alter orminimize therole ofthese
processesin establishing appropriate permitlimits thatensureattainment of
waterquality standards. States.and Tribes are encouraged to participatein these permitting and certification
processesratherthanto waitfor unreasonableconsequencesto occur.

In such cases. aswasassertedin the proposal,EPA believesthat.theAgency

. has the authoritytoobject tothe upstream NPDES permit and, if
necessary, toaSBUme permitting authority. Thisauthority wasupheld in

a caseinwhichEPA assumed authority
to issue a permitfor a North Carolina discharge that, among other factors, did
not meetTennessee's downstream
water quality standards

### (Champion International Corp. v.

### EPA. 850F.Zd 182 (4th Cir. 1988}).

EPA alsoanticipates thatmany ofthe disputes which will requireEPA dispute resolutionunder 131., oftoday'srule will arise over such situations (i.e., in which anupstreamdischarge is creating allegedunreasonable consequences ina downstreamjurisdiction). EPA recognizes that such situations arelikely
to occur, and thatnot all such situations

arelikely toberesolved to the satisfaction ofall parties during the

· permitissuance andcertification

processes.

Where suchcasesproceedto dispute resolution, theAgency'sfirst courseof action will betoconduct a dispute resolution action asprovidedin 131.7 of today's rule andrequired byCWA section 518. In situations wherethe

, dispute resolution action does**~ot** result in a satisfactory.agreement orother resolution (e.g., the upstreamjurisdiction
agrees to revise thelimits ofthe permit), EPA would then give due consideration
to any possible further Agency actions, ·where authorized bythe CWA. 

### Comment: Several commenters supported EPA's statement that the Agency does not have the authority to compel partiesto enterbinding arbitration.



### Response:EPA agrees with these
comments andhas 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 shouldhave the opportunity to approve 

### 8 mediator/arbitratorand to remove anyone showingbias.



### Response:Section 131.,(£)(2) was modified (as discussedin section BChimges to the Proposed Rule) to provide that arbitrators and arbitration panel members shall beselected to only include individuals that: (1) Are agreeabletoall affected parties, 

### {2) are knowledgeable concerningthe requirements ofthewaterquality standardsprogram, (3) have a'basic understanding ofthepolitical and economic interests ofTribes, and (4} is expected to fulfill theduties fairly and impartially. No such provision

## is
included in§ 131.,(£)(1) dealing with mediation. EPA did notprovide for Tribal approval ofmediatorsbecause: (1} EPA believesthat such anapproval
process wouldprovide toogreat an opportunity to delay the initiation ofthe mediationprocess. and (2) therole of the mediatorislimited to acting as a neutralfacilitator. That is significantly less ofa rolethan being an arbitratoror memberofanarbitration panel.

Thereis no prohibition againstthe

. Regional Administratorconsulting with thepartiesregarding a mediator; there is justnorequirement to d.o so. Although
not specificallycovered in the rule, EPA believesit iswell within thepowers of the RegionalAdministrator toremove any mediatororarbitratorfor any

reason including showingbias or unfairness, ortaking illegal/unethical actions.



### Comment: EPA should clarify how its Indian Policy, which istogive special consideration to Tribal interests. wiU affect its role in dispute resolution actions (see § 131.7lfl(ii)).



### Response:EPAbelieves that itsrole in disputeresolutionis to work with all parties to the disputein an effort to reach an agreementthat 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 · ofc'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 andTribe 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 ofdiscussions 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 thatEPA 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 anduse 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 itselffrom the resolution
process.

Response:

### EPA intends that the default procedure come Into play only

as a last resort, after all other avenues ofresolving 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 ofaction. 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 eithermediation 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 orTribe which adopts standards that are more stringent than necPssary to meet the requirements ofthe 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 ofproblems 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 anunreasonable 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, whatmight 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 ofwho should be parties to the dispute single discharge would likely be viewed resolution process(§ 131.7(g)[2)) EPA quite differently in ornear an area received diametrically opposed characterized by numerous discharges
comments. Some comments suggested ·and/orlarge waterresources. 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 ofparties to just the State andTribe. Also, a Comments on the Conditions Requiring

comment was made that EPA should EPA Dispute Resolution segregate the role ofgovernment · Comment: 

### A statement is needed on regulators from that ofpermittees 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 andretained the provision Response: 

### Section 131.7 [b), (c), and that the Regional Administratormay (d) describe the basis upon which a . include otherparties 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 ofthe 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 ofthe 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 andEPA has made no may be necessary to implement a change. resolution to a dispute) are voluntary on Other Comments on the Dispute the part oflandowners. 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 betweenTribes 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, otherparties may be included Response:

### The rule was written in this in certain cases upon a determination by · mannerbecause section 518 ofthe Clean the Regional Administrator. EPA notes WaterAct 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 orTribe (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 conditionfor 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 yearhistory of informal negotiation ofissues 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 ofany StateTribal agreement to resolve:disputes under § 

### 131.7(e)? '

Response:EPA is charged with the responsibility ofreviewing and either approving or disapproving State or Tribal-adopted standards as being consistent with the requirements ofthe 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 ofsuch 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 ofEPA, part ofa 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 circularA95) is expected to routinely enlist the aid ofother affected regions in resolving the dispute. EPA Headquarters will also

oversee the process to ensure that the interests ofboth 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 ofthe 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 ofwater quality

. .would be willing to grant extensions to standards that may account for unique the 180 day deadline ifthe Tribe could site-specific conditions and waterbody submit a reasonable rationale to the

uses. These three options represent a Regional Administrator.
range ofresource commitments, with The comments submitted on this issue option 1being 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. Ifa Tribe, as a The three yearperiod will be measured sovereign government, negotiates a from the date thatEPA 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 ofthe standards the reservation, that is a legal and program. EPA believes that this is an acceptable option for establishing CWA equitable arrangement and thatTribes
water quality standards on Indian lands. should be allowed sufficient time to It

### is also legal ifa Tribe uses standards develop their programs and adopt ofa 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 ofthe standards in place within three years.

resources and experience ofan adjacent EPA continues to believe that the State to quickly establish, atminimal development ofTribal standards canbe cost, Tribal standards for the reservation. aniterative 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 

### Yto e treate as tates or 2. This initial decision does not preclude purposes ofwater quality standards, the Agency would expectTribal 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 ofTribal design. working to establish programs in other Comments on Federal Assistance to media besides water). IndianTribes

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 offunds 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 ·
.andTribes 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 ofthe 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 availabledirectly from the standards

program. Tribes are eligible toreceive funds from otherAgencygrantprograms andare encOuraged toapply,

·particularly for section 106 program grants. EPA 

### will provide as much technicalassistance as the Agency's

resources will allow. However, under the 1907CWAAmendments the Agency received f1D additional resources to support Indianprograms. Program grants canonlybemade available by reallocatingresources from within
currentbudget allocations. EPA set aside3% ofthe total FY 1990 section 106 furulsfor Indianprograffi8, and

### is plannin,g 

### a similarset-asidefor FY 1991.

ln a continuingeffort to provide assistance toTribes on the standards
program. EPA issued 

### a Reference Guide
to Water QualityStHndards for Indian Tribes,inJanuary 1990. Thisdocument summarizes the standards i·twiew and adoptionpmcess including program requirements and the

### EPA review procedure. Thedocument also identifies availableinformation and contacts to assistTribes inbecoming farnilia'r with the requirements of

### the water quality standardsprosram. ·

The Agency also held a national meeting/seminar at whichTribes received information on the regulatory requirements, technical elements and procedures,and resource needs·for developingw:ater qualitystandardsand implementing a standardsprogram.The meeting washeld on August28-30. 1990 in Denver. Colorado. Further information aboutthis workshop and plansfor additional meetingsmaybe' obtained from the contactlisted atthe beginnillJ

### oftoday'·s ru1e.·

Comments 

### on Extraterritorial !Effects



### Comment: A numberof.COmments

were receivedonthis topic. One
comment pointedoutthatthe extraterritorial effects ofdischarges upstream ofa State or Indian**rese~vation.should** be considered during ·the standaf'dsreviewandadoption
processtoerunsre that'water quality standards providefor thellttainme.ntof standards

## m downstllealli**.juriad.k:tion~** . This commentalso S1:18geaied that 

### !EPA needs to placemore emphasM!.on the importance of

### .aiUlhconsiderations. Suggesooms furhowsucheffectscowd be conside!oe.dincluded**:requiri~** upstreamierisdictionatomeetwith downstreamjurisdictionstodis.ooss

. potentialwn{IU:tsor. :altemativeiy, that ifEPA lis Ito decide suah**issuet~.** 1ha(1he affectediuri'&dictions :should be**.all~»Ved** to have input. Relatedcommeuts were· received_(as

### disi:uss.ed pre\11001Jifto

### #w
response toQ>lnmen:ts 

### ooI;.WA ;section 510/EPA Authority) assertingthatEPA must, where needed. assume pennitting authorityfor upstream discharges that violate the waterquality standards

### of downstream -jurisdictions. One comment

was receivedadvocating that the regulation berevised to preventany extraterritorialeffec1 ofanyT·ribal regulatory action taken pursuantto CWA section 518.



### Response:The existing standards
program regulation. to which thisro1e 

### ·is simply an amendment. includes the following ·requirement:

In designatins uses .of11 w11terbody andthe appropri11te CTiteria for those uses, theState shalt take into considerationthe water quality standards ofdownstream waters and shuII ensure .that its waterquality st811dards provide for the attainmentandmaintenance ofthe waterquality standards ofdo.wnstream
waters.

{see § 131.10(b)]. 

### EPA agrees with the comment which pointed outthat, pursuant to the ab()ve regulatory requirement, extraterritorial effects·ofwaterquality standards

· shouldbe considered during the

standardsreview and adoptionprecess. OnceTribes qualify for treatment.as States and adopt standardspursuant

## ro the requirements oftoday's rule. upstreamjurisdictions wou1d he required. when revising their standards,
to provide for the attainment and maintenance ofthe downstreamTriba1 standards.Li'kewiee,Tribes quaUiymg for treatment asStates wouldbe required .to develop theirstandardsto provide for the .attainment and maintenance of.the standardsfor downstreamjurisdictions.



### EPA recosllizes that some extrate111'itorialeffects ofTribal participation 

### .in the :standardsprogram

are

### J.ike,\y .tooa:ur.but .the**Agen~y** belie:v.es .that the number

### ofsuch incidences 

### wiU be

### .smalland.the effects relatiwelyminor.

### EPA believ.es .that Congress also recognized .the Hke:lihood ofsuch effec.te inpassing CWA.secUoa 518. .and**~hat** such.effects were tbe driving force behindiru;luc;Un,g >in section 518 the requiremeat for EPA

## ro establiah

·a mechanismforresoJution ofdisputes

over w.ater 

### qualitw .standards.



### BPAemphasizea.however. that

### .wnder theCWA.there

### are anwnber.of oppor.tll&ties for.&uchproblems

### .tob.e considered andresolved**p.N~r** to being

### .a subjectfor thedispt:tte resoluti!>ll mechanismincluded

## an

. .tGday's rule. First..asdiscussed aho¥e. States

### anci Tribes .quaHfymg lfQl' !treatment as

### states

. arerequireduncier40CFR**131L1:0{b~** to· develop

### tthei.rstandardsto:easurethe attainmentaadmaintenanceof

- .. downlltream ·waterquality**ataac,la~$.** - Oneopportunitytopreventsuch problems isthustoconsider.any potentialextraterritorial effectsduring the waterqua1ity review process.and to adopt standardsconsistent with the requirements of40 CFR 11.31.!0{b). EPA
notes that the waterquality standards review processincludes**~pport.u.nities** for publicparticipation

### fsee the response to commentsonpublic participation .elsewhereinthis secti.onJ.

Second, permit limits 'Uilder the National Pollutant Discharge Elimination System (NPDES) prugram (see CWAsection 402) arerequired to be developed such that applicab1e water quality standards areachieved.The · Plilrmit issuaRceprocess, 

### whkh also ind.udes public participation. thus pre11ents a second opportunity to consider andresolvepotentialproblems reg!lrding extraterritmial-effectsof
waterquaii1y standards.

Third, a11 permits are subjec1 to certification under the requirements

### of CWA section 401. Section 401 requires that States andTribesqualifying for
treatment as Statesgrantordeny "certificationH for FederallJy pennittedor licensed aetiviHes thatmayresultina · discharge to watersofthell!Jnited States. The decision to grant or deny certificationisbased:on a State determinaHcm regarding whetherthe pr()pose;d activity wm 

### cC,mpty with,

. among other things,**ap~icabffi** water quali-ty 'Standards.Statm; andTribes qualifying for treatment asStatesmay thti.s deny certification andprohibit thtl ·federal permitting or licensing agency from·issuing a permit or\icensefor

. activitiesthat will vloiate waterquality standards.Section 401 also aHows a State 

### orTribe to participate

### ·in extratenitoriat actionsthat'w'itl affect itswaters'ifa Federa1licenseorpermit is invf!\ved {see section401ftt}{'2)).

EPA basincluded the above discussion toindicatethatthere are 

### a · number ofopportunlties for.resolvlng/ preventingprob1ems resu1tiQg ·from extraterritorial effects of**wat~r** qua1ity standards besides the dispute resolution meChanism inc'luded intoday's rute. EPA.be'lieves tha1 the dispute resolution mechanism wHI be most appropriately. used as

### a final course ofaction**aft~r** tfte other availabte

### .oour:ses ofactionhava been ii!Xhausted.

Comment'S onEPA's Policy Rega11ding Applicable Standard11 Prior tB Tf'ibal Qu.alification for Treatment.as a**Stat~**



### Comment:EPAreceived se-v.er.ai
comments regarding the policy 

### whereim

.

- EPA sta:ted thatulllltil 

### :aTiibeis

### treated.,·.

as a**Sia~e**and**~tab1isbes** Hs own standards.orEPA Otherwise decide$

## ·m ·
.. ; 

### .

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## I Rules and Regulations · 64891

consultation withthe Tribe and State that a State lacksjurisdiction, 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 September9, 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 ofthe Brendale case above). The policy in question is not an assertion that State standards do necessarily apply as a matter oflaw. Rather it is a mere recognition that fully implementing a role for Tribes under the CWA 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 ofwater 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 ofthose 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 ofthe Act, or (2) where the Administrator determines that new

orrevised standards are necessary (see 40 CFR 131.22). A number ofcomments

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 ofstandards. 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 ofdeclination 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 lastresort. One comment asserted that EPA promulgation is: (1) Contrary to the legal status ofIndian 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 ofresponsibility 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 ormore than one Tribe (e.g., where necessary to address needed
water quality based permit actions), EPA re-asserts its beliefthat the standards ofthe adjacent State will be a logical beginning step for EPA iffor no other reason than the consistency required by 40 CFR 131.10(b). Practical considerations ofavailable 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) ofthe 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 CWA requirements. However, Federal promulgation ofwater quality standards on Indian lands is authorized by the CWA (see CWA section 303(c)(4)). The question of Federal promulgation ofstandards for IndianTribes 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 offully acceptable State standards). We agree that the EPA Indian Policy dictates that Federal promulgation should only be pursued**a~** 

### a final course ofaction, as the Agency indicated in the preamble to the proposed rule. However; it does remain an·option, where necessary, for setting standards for waterresources located in Tribal lands.

.Comments on Public**~articipation**



### Comment: Several comments were received regarding the processes for

### 64B9Z**~Federat** 

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### 1991 

## I Ru1es and RegulatiQnfi

publicparticipationin water quality standards development Commenters questioned.whetherpublic 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 processwould be
open to interestedpartiesin the areas surrounding the reservation. Ingeneral. theserommentersrequested additional clarificationofpublic participation requirements.

Response:PUblic participationis

### not limited :in any way.to onlyresidents of the area orjust Indians. EPA expects that Tribes and Stateswill makeevery reasonable effort to ensure that possible interestedparties are made aware oftbe hearingson standards. This mayrequire

a direct written notice toState

### orIndian agencies orotherFederal agencies. One oftherespBnsibilities of

### EPA in reviewing State orIndian adopted standards isto assurethata full range ofpublicparticipation occurred.EPA expects that State representativeswill participate in publichearings 

### on the reservation concerning waterquality standards and that Tribal representativ.es 

### will do the samein State hearings. ·

Standardsadopted by either States or Indian**Tribet~** that appear to bebased on improper orWlduly limited public participationmay be disapprovedby EPA solely on thatbasis since the Clean Water Act requiresfuat standards may onlybe revised oradopted with public participation {seesection 303(c)(1j ofthe Clean WaterActand§§ 131.6{e} and 131.20 (a) and {b) ofthe WaterQuality StandardsRegulationin 40 CFR part 131J.

CommentsonEnf<Jrcement (){ Standal'ds

Comment: Several comments were received on enforcement ofTribal water qualitystandards.These commenters generally asserted that additional clarification should be provided byEPA. Several commenters noted thatEPA shouldenforceTribal standards. One
commenter assumed that, based on the limited scope ofCWA section 518, Tribal standards wouldbe enforcedby eitherEPA .orthe State.

Response:Enfort:ement of standards is not directly a 1:omponent ofthe standardsprogramregulation. Enforcement is theresponsibility ofthe permitting agency or. ln some cases, the
agency which adopted the standards, which maybe·theTribe, ifit qualifiesfor
treatment as a State foradministering the NPDES permit program, orEPA or the State 

### ifthe Tribedoesnot (see4fl CFR 123.1(h)). Where Tribes lack the requisite criminal enforcement authority,.EPA may exercise certain criminalenforcement powers onbehalf ofIndian Tribes that seekto operate NPDES or State Sludge Management Programs.

4. OtherComments

Comments onTrustResponsibility

Comment: EPA received several
comments regarding its assertion that the "Federal trustresponsibility" owed
to Indian Tribes, as it applies to EPA actions under the CWA. isdefined hy the terms <lfthe CWA. EPA went on tm explain that

..the Agency's responsibility isdearly to attempt to resolve * • • disputes {between States and Tribes over standards] consistent wHh theprovisionofthe [CWA]." 54 FR 39101.

· Certaincommenters asserted that EPA .should explicitlyclarify whether theCWA defines any trust obligations
to tribes and, 

### ifso, where andhow 

### that obligation wiU be expressed. In particular, EPA should explicitly.define how the trustresponsibility 

### will affect its role inthe dispute resolutionprocess. Other commenters not only asked for clarification, but a11Serted thatEPAmust
statethat theFederal-Tribal trust relationship "exists independently Q{ and informs EPA decision·making" concerning the CWA and State-Tribat disputes. Still another oommenter asked EPA toclarify that the proposed regulations arenot to be read as modifyingor abrogatingEPA's trust responsibility.

Response: EPAbelieves thatthe preamble to the proposed rule statedthe applicableprim::iples Clearly andthat

### no furtherclarification is needed. EPA recognizes the responsibility owed

### by the Federal government as trustee for the affairs ofIndianTribes. 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 ofbothTribal and State commenteniregarding the trust responsibility's impact on the dispute resolution process and EPA's other activities undertoday's reguiation are likely unfounded. Ifso appointedby the Regional Administrator, EPA employees willbe acting solely as mediators or non-binding arbitrators in theproE;ess. Thus, they will nothavethe powerto impose a binding decisfon on eitherthe Tribe ortheState absentprior consent from both11ides. Furthermore, ifboththe Tribe and the Statehave adopted 

### va'lid
water quality standards approved by EPA, the dispute reso1utioo process W<luld not beabte to supersede those standards.Thus, the ."trust responsibility"' would not 

### affect the
outcome of the dispute resolution
process and anyEPA statements regarding its overall srope would be strictly hypothetical. By the sametoken, EPA recognizes its duty to work with Tribes who wish to develop and adopt standards and to eliminate all potentia1 barriers toTribes accomplishing th1s goal.

Commentson DefinitionsPwposed for Section 131.:3

Comment: EPA shou1d change the proposed definition ofaTribe in section 131.3 to. mean any IndianTribe, band,
group, or communityrecognized bythe 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 playin subsurface flows emanatingfrom

onejurisdiction that flow into and impact the surface waters ofanother jurisdiction?

Response: Notwithstanding the strong language in thelegislative history ofthe CleanWater Act to the effect that the Act does not grant EPA authority to re,gulate pollution ofgroundwaters, EPA and most courts addressing the issues have recognized two limited instances where, for the purpose ofprotecting surface**wat~rs** and their uses, EPA may exercise authorities thatmay affect underground waters.First, the Act requires NPDES permits for discharges
to groundwaterwhere there is a direct hydrologicalconnection between groundwaters and surface waters.ln these situations, the affected groundwaters are.not considered "waters ofthe United States

.. but discharges to them areregulated because such discharges are effectively discharges to the directlyconnected surface waters. Second. HisEPA's longestablishedposition 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
mustbe sufficiently stream-tike so as

# to possibly allow thepassage.offish and other aquatic organisms from a surface segmentofthe stream into the**unde~;ground** segment.

Comments

### on WaterQuantity Rights

Comment:Severa\comments were received regarding water quantity issues.These comments generally asserted that the statementin the preamble t'? the proposalf54 FR 39101} which indicatesthat all·section 518

..

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## 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 orabrogate rights to quantities ofwater which have been established by any State.



### Response: Since sections 101(g) and 518(a) are clearin the Clean WaterAct, EPA believes it unnecessary to restate such language in the regulation. Nevertheless, a briefreference is made
to them in § 131.4 ofthese regulations.

Comments on Applicability ofStandards
to Federal Projects



### Comment: EPA should clarify that Tribal waterquality 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 orentities with duly adopted State standards (see CWA section 313). This will apply likewise to any standards duly adopted byIndian 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 ofsmall 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 numberofsmall

- businesses may be required to provide additional treatment ofwastewaters to meet Tribal waterquality standards. EPA should investigate and acknowledge this result before asserting

a lack ofsubstantial impact on small entities.



### Response: As stated in the proposal, EPA recognizes that an IndianTribe which qualifies for treatment as a State could adopt waterquality 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 ofsmall entities.

While it is entirely possible that some small entities in Utah maybe affected by a Tribe adopting waterquality standards, it is difficult for EPA to make conclusive findings when the Agency does not know ifany Tribe in Utah will attempt to qualify for treatment as a State orwhat standards may be adopted. EPA also has no evidence to support a conclusion thatTribal 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 waterbody. For example, economics may be used as a basis for not designating uses in support ofthe fishable-swimmable goal cite.d in section 101(a)(2) ofthe Act (see §§ 131.10 (a) and (j) ofthe 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 ofManagement and Budget underthe Paperwork Reduction Act, 44 U.S.C. 3501 

### etseq, on October 17,**1989,approvalnurnber2040-0049,~th** an expiration date ofOctober31, 1992. A copy ofthe Information Collection ·Request documentmay be obtained from the Information Policy Branch (PM-223Y), Environmental Protection Agency, 401 M Street, SW., Washington, DC, 20460, orbycalling (ZOZ)-475-9498.

F. Regulatory ImpactAnalysis

UnderExecutive Order 12291, EPA
mustjudge whethera regulation is "major" and therefore subject to the requirement ofa Regulatory Impact Analysis. It should be noted that the basic waterquality standards regulation published at48 FR 51400 on November 8, 1983 contains a finding that the regulationis not a majorrule under Executive Order 12291. Itis difficult for EPA to assess the net cost ofthis amendment to the basicregulation because ofthe offsetting characterofthe basicprovisions ofthe standards
program and the fact that there is no good means ofestimating how many Tribes may seek to qualify for treatment

as a State. While qualifying for
treatment as a State will place burdens

onthe Tribes, the basicregulation also provides the ability ofthe Tribes to determine the attainability ofstream
uses, to set site-specific criteria sufficient to protect those uses, and to focus limited Tribal resources on**revie~ng** or adopting standardson priority waterbodies. For these reasons, the Agencyjudges this amendment to the basic standards regulation not to be

a majorrule. List ofSubjects 

### in 40 CFR Part 131

Indian reservation waterquality standards, Waterpollution control, Waterquality standards.

Dated: November 22, 1991.
William K. Reilly, Administrator.

For the reasons set out in the
SUPPLEMENTARY INFORMATION section, part 131, subpart A, oftitle 40 ofthe Code ofFederal Regulations is amended

as follows:

1. The authority citation for part 131 continues to read as follows:

Authority: Clean WaterAct, Pub. L. 92-500,

as amended; 33 U.S.C. 1251 etseq.

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 ofColumbia, Guam, the Commonwealth ofPuerto Rico, Virgin Islands, American Samoa, the Trust Territory ofthe Pacific Islands, the Commonwealth ofthe Northern Mariana Islands, and Indian Tribes that EPA determines qualify for treatment as States for purposes ofwater quality standards.

(k) 

### FederalIndian Reservation, Indian Reservation,. or

### Reservation means all land within the limits ofany Indian reservation under the jurisdiction ofthe United States Government, notwithstandiQg the issuance ofany patent, and including rights-of-way running through the reservation."

(I) 

### Indian Tribe or 

### Tribe means any Indian Tribe, band, group, orcommunity recognized by the Secretary ofthe Interior and exercising governmental authority overa 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 waterquality standards. As recognized by section 510 ofthe Clean WaterAct, States may develop water quality standards more stringent than required by this regulation. Consistent with section 101(g) and 518(a) ofthe Clean WaterAct, .vater quality standards shall .totbe construed to supt:rsede or abrogate rights to auantities ofwater.

· (b) States [as defined in § 131.3) may issue certifications pursuant to the requirements ofClean WaterAct

. 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 consistentwith the

provisions of§ 131.21(c).

(c) Where EPA determines that a Tribe qualifies for treatment as a State for purposes ofwaterquality standards, the Tribe likewise qualifies for
treatment as a State for purposes of certifications conducted under Clean· WaterAct section401.

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 ofthe Clean WaterAct authorizes EPA to issue certifications pursuant to the requirements ofsection 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 andIndianTribes arise as a result·of differing water quality standards on

common bodies ofwater, the leadEPA Regional Administrator, as determined based upon OMB circularA-105, shall beresponsible for acting in accordance with the provisions ofthis section.

(b) The Regional Administrator shall attempt to resolve such disputes where:

(1) The difference in water quality standardsresults in unreasonable
consequences;

(2) The dispute Is between a State (as defined in § 

### 131.3(j) but exclusive ofall IndianTribes) and a Tribe which EPA has determined qualifies to be treated as

a State for purposes ofwaterquality standards;

(3) A reasonable effort to resolve the dispute without EPA involvement has been made;

(4) 

### The requested reliefis consistent with the provisions ofthe CleanWater Act and other relevant law;

(5) The differing State andTribal
water quality standards have been adopted pursuant to State andTribal law and approved byEPA; and

(6) A valid written request has been submitted by either the Tribe orthe State. (1) A concise statement ofthe unreasonable consequences that are alleged to have arisen because of

. differing waterquality standards;

(2) A concise description ofthe actions which have been taken to resolve the dispute without EPA involvement;

(3) A concise indication ofthe 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 ofthe reliefsought from the alleged unreasonable
consequences.

(d) Where, in the Regional Administrator'sjudgment, EPA involvement Is appropriate based on the factors ofparagraph (b) ofthis section, the Regional Administrator shall, within 30 days, notify the parties in writing that he/she is initiating anEPA dispute resolution action and solicit their written response. The Regional Administrator shall also make reasonable efforts to ensure that other interested individuals orgroups have notice ofthis action. Such efforts shall include but not be limited to the following:

(1) Written notice to responsible Tribal and StateAgencies, 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 ofwater.

(3) Public notice in local newspapers, radio, and television, as appropriate,

(4) Publication in tradejournal newsletters, and

(5) Other means as appropriate. (e) Ifin accordance with applicable State andTribal 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 WaterAct and where it has been approved byEPA.

(f) EPA dispute resolution actions shall be consistent with one or a combination ofthe following options:

(1) Mediation. The Regional Administratormay appoint a mediator
to mediate the dispute. Mediators shall beEPA employees, employees from other Federal agencies, or other

.individuals with appropriate qualifications.

(i) Where the State andTribe 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 ofparagraph (b) ofthis section. Written requests for EPA involvement should be submitted to the lead Regional Administrator and
must include:· · · ·' consistent with Clean·WaterActsection 518(d), shallnormally 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 ofindividual disputes shalllw determined by the mediator in consultation with the parties.

(v) Ifformal public hearings are tu:ld in connection with the actions taken under this paragraph, Agency requirements at40 CFR25.5 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 otherFederal 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 ofthe waterquality standards program, have a basic understanding ofthe political and economic interests ofTribes 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 ofdiffering 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 otherfactors 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) ofthis section, the arbitrator or arbitration panel shall have the authority and responsibility to providP

· all parties and the Regional ·Administratorwith a written····

-recommendationfor resolution 

### OfthP.

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## 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 ofsuch arbitration panels may be unanimous decisions. Where binding ornon-binding arbitration panels cannot reach a unanimous recommendation after a reasonable period oftime, 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 ofGeneral Counsel on legal issues, but otherwise shall have no 

### exparte 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 ofany 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) Ifa 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 ofthe statutory basis for altering the arbitrator's recommendation.

(vi) The procedure and schedule for arbitration ofindividual disputes shall be determined by the arbitrator or arbitration panel in consultation with parties.

(vii) Ifformal 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) ofthis section) refuse to participate in either the mediation or arbitration dispute resolution processes, the Regional Administrator may appoint a single official orpanel.to review available information pertaining to the dispute and to issue il, w.ri!ren reco(nmendation for resolving the dispute. Review officials shall beEPA 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 ofsuch review officials orpanels shall, to the
extent possible given the lack of participation by one or more parties, be reached in a manneridentical to that for arbitration ofdisputes specified in paragraphs (f}(2}(i) through (f}(2}(vii) of this section.

(g) 

### Definitions. For the purposes of this section:

(1) 

### DisputeResolutionMechanism

means the EPA mechanism established pursuant to the requirements ofClean WaterAct section 518(e) for resolving unreasonable consequences that arise

as a result ofdiffering water quality standards that may be setby States and Indian Tribes located on common bodies ofwater.

(2} 

### Parties to a State-Tribal dispute include the State and the Tribe and may, at the discretion ofthe 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 ofthe water quality standards program ifthe Tribe meets the following criteria:

(1) The Indian Tribe is recognized by the Secretary ofthe 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 ofwater

resources which are within the borders ofthe Indian reservation and held by the Indian Tribe, within the borders of the Imlian reservation and held bythe United States in trust for Indians, within· the borders ofthe Indian reservation and held by a member ofthe Indian Tribe.ifsuch property interest is subject
to a trust restriction on alienation, or otherwise within the borders ofthe Indian reservation, and

(4} The IndianTribe is reasonably expected to be, capable, in the Regional Administrator'!!judgment, ofcarrying
out the functions ofan·effective water. quality standards program in a manner consistentwith the terms and purposes· ofthe Act and applicable regulations.

(b) Requests by Indian tribes for
treatment as States for puq)oses Of
waterquality 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 ofthe 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 ofthe Tribal government;

(ii) Describe the types of governmental functions currently performed by the Tribal governing body such as, but not limited to, the exercise ofpolice powers affecting (or relating to) the health, safety, and welfare ofthe affected population, taxation, and the exercise ofthe power ofeminent domain; and

(iii) Identify the source ofthe Tribal government's authority to carry out the governmental functions currently being performed.

(3) A descriptive statement ofthe Indian Tribe's authority to regulate
water quality. The statement shall include:

(i) A map or legal description ofthe

area overwhich the Indian Tribe asserts authority to regulate surface water quality;

(ii) A statementby the Tribe's legal counsel (or equivalent official) which describes the basis for the Tribes assertion ofauthority;

(iii) A copy ofall documents such as Tribal constitutions, by-law's, charters, executive orders, codes, ordinances, and/orresolutions which support the Tribe's assertion ofauthority; and

(iv) an identification ofthe surface
waters for which the Tribe proposes to establish water quality standards.

(4} A narrative statementdescribing the capability ofthe Indian Tribe to administer an effective water quality .standards program. The narrative
statement shall include:

(i) A description ofthe Indian Tribe's previous management experience including, but not limited to, the administration ·ofprograms and services authorized by the Indian SelfDetermination and Education Assistance Act·(25 U.S.C. 450 

### etseq.); the Indian**Miner<~l** Development Act (25 U.S.C. 2101 

### etseq.), 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 ofexisting environmental or public health programs administered by the Tribal governing body and copies of relatedTribal laws, policies, and regulations;

(iii) A description ofthe entity (or entities) which exercise the executive, legislative, andjudicial functions ofthe Tribal government;

(iv) A description ofthe existing, or proposed, agency ofthe Indian Tribe which will assume primary responsibility for establishing, reviewing, implementing and revising
water quality standards;

(v) A description ofthe technical and administrative capabilities ofthe staffto 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 Administratorwhich, in the judgment ofthe 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 WaterAct or Safe Drinking WaterAct 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 RegionalAdministrator shall
process an application ofan Indian Tribe for treatment as a State submitted pursuant to § 131.8(b) in a timely

manner. He shall promptly notify the IndianTribe ofreceipt ofthe application.

(2) Within 30 days after receipt ofthe 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 ofthe Tribe's assertion ofauthority to regulate the quality ofreservation 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 ofauthority.:

(4)1(a Tribe's asserted authority is subject to a competing orconflicting claim, the Regional Administrator, after consultation with the Secretary of the Interior, or his designee, and in consideration ofother 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 ofthis 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)fwater quality standards ami that·theTribe may initiate the · formulation and adoptionofwater 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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. I.