39098 Federal Register I Vol. 54, No. 183 I Friday, September 22, 1989 I Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[WH-FRL-3553-7 

RIN 204G-AB36 ] 

Amendments to the Water Quality 

Standards Regulations That Pertain to 

Standards on Indian Reservations 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: This proposed regulation 

would revise th~ water quality 

standards regulation that governs the 

development, review. revision and 

approval of water quality standards 

under the Clean Water Act. The 

revisions would establish the criteria 

and procedures by which an Indian 

Tribe can qualify for treatment as a 

State for purposes of the Clean Water 

Act section 303 water quality standards 

and section 401 certification programs, 

and establish a mechanism to resolve 

unreasonable consequences that may 

arise from an Indian Tribe and a State 

adopting differing water quality 

standards on common bodies of water. 

This action is being taken pursuant to 

the requirements of section 518 of the 

Clean Water Act that pertain to the 

water quality standards and 401 

certification programs. 

DATES: Written comments on this 

proposed rule will be accepted until 

December 21, 1989. Because a number of 

similar proposed rules implementing 

CWA section 518 will be issued more or 

less concurrently, EPA notes that 

general comments pertaining to these 

proposed rules need to be submitted 

only once. Public hearings on this 

proposed rule will be held as follows: 

1. November 14, 1989, Phoenix, Arizona, 

1:00 p.m. and 7:00p.m. (local time). 

2. November 16, 1989, Rapid City, South 

Dakota, 1:00 p.m. and 7:00 p.m. (local 

time). 

3. December 5,1989, Washington, DC, 

9:00 a.m. (local time). 

Following the hearings, if time 

permits, EPA will brief hearing 

attendees on the requirements of the 

water quality standards program, 

including a general overview of the 

program. 

ADDRESSES: The hearings will be held at 

the following locations: 

1. Phoenix, Arizona, Hyatt Regency 

Phoenix, 122 N. Second S~ .. (602) 252-

1234 

2. Rapid City, South Dakota, Howard 

Johnson's, 2211 LaCross St., (605) 343-

8550 . 

3. Washington, DC, EPA Auditorium, 401 

M Street, SW., (202) 475-7315. 

Comments may be addressed to: 

David K. Sabock, Standards Branch, 

Criteria and Standards Division (WH585), Office of Water Regulations and 

Standards, U.S. Environmental 

Protection Agency, 401 M Street, SW., 

Washington, DC 20460. (202) 475-7315. 

FOR FURTHER INFORMATION CONTACT: 

David K. Sa bock, Standards Branch, 

Criteria and Standards Division (WH585), Office of Water Regulations and 

Standards, U.S. Environmental 

Protection Agency, 401 M Street SW., 

Washington, DC 20460. (202) 475-7315. 

SUPPLEMENTARY INFORMATION: 

Information in this preamble is 

organized as follows: 

A. Background 

B. EPA's Indian Policy 

C. Discussion of the ProposedRulemaking 

1. State-Tribal Dispute· Resolution 

Mechanism 

2. Treatment of Indian Tribes as States 

3. Establishing Water Quality Standards on 

Indian Lands 

D. Summary of Proposed Changes to 40 CFR 

131 

E. Consultation With Tribes and States 

F. Alaska Native Villages and Oklahoma 

Tribes 

G. Regulatory Impact Analysis 

H. Regulatory Flexibility Analysis 

I. Paperwork Reduction Act 

List of Subjects in 40 CFR Part 131 

A. Background 

The February 4. 1987 Amendments to 

the Clean Water Act (CWA) added a 

new section 518, which requires EPA to 

promulgate regulations specifying how 

the Agency will treat qualified India11 

Tribes as States for the purposes of Title 

II (Construction Grants), section 104 

(Research, Investigation, and Training), 

section 106 (Grants for Pollution 

Control), section 303 (Water Quality 

Standards), section 305 (Water Quality 

Inventory), section 308 (Inspections, 

Monitoring, and Entry), section 309 

(Federal Enforcement), section 314 

(Clean Lakes), section 319 (Nonpoint 

Sources), section 401 (Certification), 

section 402 (National Pollutant 

Discharge Elimination System), and 

section 404 (Dredge and Fill Material). 

Section 518 also requires EPA, in 

promulgating these regulations, to 

establish a mecjlanism to resolve 

unreasonable consequences that may 

arise from an Indian Tribe and a State 

adopting differing water quality 

standards on common bodies of water. 

This proposed regulation is in 

. response to the CWA section 518 

requirements pertaining to the section 

303 water quality standards program 

and the section 401 certification 

program. Such requirements include a 

directive to specify how Tribes will be 

treated as States for purposes of the 

water quality standards and 

certification programs and a directive to 

establish a mechanism for resolving 

disputes between Tribes and States 

which arise over water quality 

standards. 

Currently, section 303(c) of the Clean 

Water Act (33 U.S.C. 1313(c)) requires 

the States to develop, review, and revise 

water quality standards for all surface 

waters of the United States. EPA's 

implementing regulations (40 CFR part 

131) require that, at a minimum, such 

standards include designated water 

uses, instream criteria to protect such 

uses, and an antidegradation policy. 

EPA's role in this process is to review 

and approve or disapprove the Stateadopted water quality standards and, 

where necessary, to promulgate Federal 

water quality standards. 

Promulgation of this regulation would 

supplement the standards program by 

establishing a procedu_re by which 

Tribes can adopt standards pursuant to 

the Clean Water Act. Under this 

regulation, water quality standards / 

would be fashioned to meet the 

requirements of individual reservations, 

adopted by an authorized Tribal 

governing body, and submitted to EPA 

for review and approval/disapproval. 

If approved, the Tribal standards 

would be applicable to other Clean 

Water Act programs, such as the 

National Pollutant Discharge 

Elimination System (NPDES) permit 

· program. If disapproved, EPA would 

have a responsibility to promulgate 

Federal standards if the Indian Tribe did 

not adopt changes required by EPA's 

disapproval. Such an EPA promulgation 

would only be for those portions of the 

standards disapproved by EPA. 

B. EPA's Indian Policy 

This rule would be consistent with 

Federal Policy statements regarding 

Indian Tribes. On January 24, 1983, the 

Federal government established an Indian policy statement providing for 

treatment of Tribal governments on a 

goverrunent-to-government basis and 

supporting the principle of selfdetermination and local decision making 

by Indian Tribes. EPA subsequently 

adopted its own Indian policy statement 

and implementation guidance in 

November 1984. 

EPA's Indian Policy is "to give special 

consideration to Tribal interests in 

making Agency policy and to ensure the 
Federal Register I Vol. 54, No. 183 I Friday, September 22, 1989 I Proposed Rules 39099 

close involvement of Tribal governments 

in making decisions and managing the 

environmental programs affecting 

reservation lands." In practice, EPA's 

policy is to work directly with Tribal 

governments as independent authorities 

for reservation affairs, and not as 

po_litical subdivisions of States. 

C. Discussion of the Proposed 

Rulemaking 

1. State-Tribal Dispute Resolution 

Mechanism 

Section .518 requires EPA to establish 

a "* * • mechanism for the resolution of 

any unreasonable consequences that 

may arise as a result of differing water 

quality standards that may be set by 

States and Indian Tribes located on 

common bodies of water." EPA's 

primary responsibility in response to 

this CWA requirement is clearly to 

establish a practical procedure to 

address and, where possible, resolve 

such disputes as they arise. The Agency 

notes, however, that its authority to 

resolve such disputes is limited. 

EPA does not believe, for example, 

that section 518 grants EPA the 

. authority to override section 510 of the 

Act. CWA section 510 is·a "savings 

clause" which provides that States are 

not precluded from adopting 

requirements respecting control or 

abatement of pollution as long as such 

requirements are not less stringent than 

the requirements of the Clean Water 

Act. See International Paper v. 

Ouellette, 107 S.Ct. 805 (1987). Pursuant 

to section 510, States have adopted 

water quality standards more stringent 

than EPA may consider necessary or 

appropriate. EPA has taken the position 

that the Agency is not authorized to 

disapprove a State water quality 

standard on the basis that EPA 

considers the standard to be too 

stringent. Consistent with this position, 

EPA does not believe that section 518 

authorizes the Agency to disapprove a 

State water quality standard and 

promulgate a less stringent standard as 

a means of resolving a State/Tribal 

dispute. 

EPA believes that the provisions of 

section 510 would also apply to Indian 

Tribes that qualify for treatment as 

States. Nothing in CWA section 518 

suggests Congress intended to pre-empt 

· Tribes from setting more stringent 

standards than required by the CWA. 

Indeed, the provision for a dispute 

resolution mechanism suggests precisely 

the opposite. EPA believes that Tribes 

are not precluded by the Clean Water 

Act from adopting water quality 

standards more stringent than EPA may 

believe to be necessary or appropriate. 

EPA invites further public comment 

on the Agency's interpretation of CWA 

section 510. Comments received on 

various drafts of today's proposal have 

been mixed. Many commenters have 

supported EPA's interpretation of CWA 

section 510 as contained in this 

proposed rulemaking. Other 

commenters, however, have argued that 

as a means of resolving a State-Tribal 

dispute which has otherwise been 

intractable, section 518 does provide a 

narrow exception to section 510 and 

authorizes EPA: (1) To disapprove a 

State or Tribal ~ater quality standard 

which EPA considers more stringent 

than necessary or appropriate under the 

CWA and (2) to promulgate a less 

stringent or more appropriate Federal 

standard. One commenter suggested 

that EPA should disapprove overly 

stringent water quality standards where 

such standards are not scientifically 

defensible. EPA invites public 

suggestions of scientific factors with 

which overly-stringent water quality 

criteria may be identified. EPA's water 

quality standards regulation requires 

State water quality criteria to be 

developed based on scientifically 

defensible methods (see 40 CFR 

131.11(b)). EPA also does not support the 

adoption of water quality criteria more 

stringent than natural background water 

. quality. However, EPA's water quality 

standards regulation does not require a 

justification of a use designation which 

meets or exceeds the "fishable- . 

swimmable" goals of the CWA (see 40 

CFR 131.10(k)). Similarly, EPA generally 

does not require justification. or other 

evaluation of the scientific merit of 

criteria which meet or exceed levels of 

water quality necessary to support the 

fishable-swimmable goal (i.e., based on 

comparison with CWA section 304(a) 

criteria recommendations). 

In reviewing WQS submitted by 

States and Tribes, EPA will be 

evaluating the adequacy of th~ numeric 

criteria. Where EPA determines that 

such criteria are substantially more 

stringent than necessary to meet the 

"fishable-swimmable" goal of the CWA, 

EPA will advise the State or Tribe of 

this finding. EPA will use best 

professional judgment to make such 

determinations. Such determinations, 

however, will not necessarily be 

grounds for disapproval of State or 

Tribal WQS because, as explained 

above, EPA does not believe the Agency 

has the authority to disapprove a State 

or Tribal water quality standard on the 

basis that EPA considers the standard to 

be too stringent. . 

EPA clearly has the authority, 

however, to disapprove water quality. 

standards that are less sttingent than 

necessary to comply with the 

requirements of the CWA, as interpreted 

in EPA's regulation at 40 CFR part 131. 

EPA also has the discretionary 

authority to object to an NPDES permit 

which does not comply with a 

downstream State's water quality 

standards (see CWA sections 

301(b)(1)(C), 402(d)(2); 40 CFR 122.4(d), 

123.44). EPA's assumption of permit 

issuing authority was recently upheld in 

a case in which EPA assumed authority 

to issue a permit for. a North Carolina 

discharge that, among other factors, did 

not meet Tennessee's downstream 

water quality standards (Champion· 

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

(4th Cir. 1988). 

In light of the statutory authorities in 

the CWA, EPA considered a number of 

dispute resolution techniques for 

inclusion in this proposed regulation. 

The techniques considered were: [1) 

Mediation, (2) non-binding arbitration, 

[3) voluntary binding arbitration, (4) 

involuntary binding arbitration, and (5) 

Federal promulgation. The following 

discussion summarizes EPA's analysis 

of each of these techniques . 

The first technique, mediation, would 

allow the Regional Administrator to 

appoint a mediator whose primary 

function would be to facilitate 

discussions between the parties with the 

objective of arriving at a State-Tribal 

agreement or other resolution 

acceptable to the parties. The mediated 

negotiations could be informal or formal, 

public or private. The mediator could 

also establish an advisory group, 

consisting in part of representatives 

from the affected parties, to study the 

problem and recommend an appropriate 

resolution. 

The second technique, non-binding 

arbitration, would require the Regional 

Administrator to appoint an arbitrator 

(or arbitration panel) whose 

responsibilities would include gathering 

all information pertinent to the dispute, 

considering the factors listed in the 

CW A, and recommending an 

appropriate solution. The parties would 

not be obligated, however, to abide by 

the arbitrator's or arbitration panel's 

decision. The arbitrator or arbitration 

panel would be responsible for issuing a 

written recommendation to all parties 

and the Regional Administrator. 

Arbitrators or arbitration panel 

members which are EPA employees 

would be allowed to operate 

independently from the normal chain of 

command within the Agency while 

conducting the arbitration process. 

Arbitrators or arbitration panel 

members would not be allowed to have 
39100 

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Federal Register I Vol. 54, No. 183 / Friday, September 22, 1989 I Proposed Rules 

ex parte-communication pertaining to 

the dispute; except thanhey would be 

allowed to contact EPA's Office of 

General Counsel for legal advice. 

The third technique, voluntary binding 

. arbitration, would be the same as the 

second technique with the exception 

that the parties would voluntarily · 

·consent, in advance, to abide by the 

·arbitrator's ·or arbitration panel's · 

decision. Because the parties would 

enter into a binding agreement to 

implement the arbitrator's 

recommendation, this. technique has an 

advantage over non-binding arbitration, 

because arbitration generally refers to a 

process whereby all parties participate. 

It is EPA's judgment that involuntary 

binding arbitration, although,desirable 

in certain ways, is not authorized by the 

CWA and 'for that reason it has not been 

included in the proposed dispute 

resolution mechanfsm. The fifth 

technique; federal promulgation, is also 

not included in the proposed regulation 

. because that authority is already 

described elsewhere in 40 CFR part 131. 

The Agency envisions a number of· 

possible actions or "outcomes" that, 

individually or in combination, would 

becau.se it would increase the likely resolve most of the disputes that 

probability of resolving a dispute. ·- will arise. These actions might include, 

Under the fourth technique, 

involuntary binding arbitration, the 

parties would be required to enter.into 

an agreement to abide by the 

arbitrator's decision. EPA does not 

believe, however, that the Agency has 

the. authority, under CWA sections 518 

. and 303, to compel a -Tribe or a State to 

submit to binding arbitration of a water 

quality standards dispute. ·-

, The fifth technique would involve 

EPA promulgation of. Federal water 

quality st!lndards for the disputed 

waters. Al~hot1gh this technique. is not a dispute resolution ~·process' in the way 

the other four techniques are, it was 

considered for inclusion in the dispute 

resolution mechanism. As stated 

previously, Federal promulgations are 

·' authorized by the CWA where the State 

or Tribe adopts water quality standards 

that are·not compliant with the · 

requirements of the CWA. EPA dpes not 

believe that the Agency has tlie 

authority to proml!lgate Federal 

standards which are less stringent -than ' 

those aqopted by a State or Tribe and 

approved by EPA as a means of 

resolving a State/Tribal dispute._ 

EPA clearly possesses adequate 

authority to implement the first two of 

the above techniques, mediation and 

non-binding arbitration. These two 

techniques are therefore included in the 

proposed regulation to be used at the 

discretion of. the Regional · 

Administrator. The proposed regulation 

emphasizes use of mediation because it 

is consistent with CWA section 518(d), 

which encourages the establishment of 

State-Tribal cooperative agreements. 

The third technique, voluntary binding 

arbitration, is mentioned briefly in the 

proposed regulation as an option where 

parties consent. EPA has also provided 

for a dispute resolution default 

procedure to be used where one or more parties refuse to participate in mediation 

or arbitration. This dispute resolution 

technique would be very similar to · arbitration, but has been 'included as a 

separate Regional Administrator option 

. but are not limited to, the following: (1) 

A State or Tribe agrees to revise the 

limits of a permit to ensure that 

downstream water quality standards are 

met, (2) a State or Tribe agrees to 

permanently downgrade a water quality 

standard, pursuant' to the provisions of 

40 CFR part 131, to eliminate the 

unreasonable consequences whiCh have 

resulted~ (3) a State or Tribe issues a 

temporary variance from water quality 

standards for a particular discharge~ (4) 

a permittee or landowner agrees to · 

provide additional water pollution. 

controls to eliminate the unreasonable 

consequences·, (5) EPA assumes permit' 

issuing authority for a State or Tribe and 

re-issues a permit to ensure that 

· downstream water quality standards are 

met, or (6) EPA promulgates Federal 

· water quality standards where a State 

or Tribal standard does not meet the 

requirements of the Clean Water Act. 

The proposed regulation establishes 

the conditions urider which the Regional 

Administrator would be responsible for 

initiating a dispute resolutionactibn. 

Such actions Would be initiated where, 

in the judgment of the Regional 

Administrator: (1) There are 

unreasonable consequences, (2) the 

dispute is between a State and a Tribe 

(i.e., is riot between 11 Tribe and another 

Tribe or a State and another State), (3) a· 

reasonable effort ha's been made to 

resolve the dispute prior to requesting 

EPA involvement, (4) the requested 

relief is within the authority of the CWA 

(e.g., is not a request to replace State/ 

Tribal standards which comply with the 

·Clean Water Act with less stringent 

Federal standards), (5) the differing 

standards have been adopted pursuant 

to State/Tribal law and approved by 

EPA, and' (6) a valid written request for 

EPA involvement has been submitted to 

the Regional Administrator by the' State 

or Tribe. Although th{! Regional · Administrator may decline to initi(;lte a· · 

dispute resolution action based on any 

of the ab9ve factors. EPA will always. be 

willing to hold preliminary discussions. 

on the situation. EPA will also be willing 

to informally mediate disputes between· 

Tribes consistent with the ·procedures 

previously established for mediating 

disputes between States (see 48 FR 

51412). - . . . . 

The proposed regulation lists the 

requirements for written requests for . 

EPA involvement. Such requirements. 

would include: (1) A statement 

describing the unreasonable · : , . . 

consequences, (2) a description of th~ 

actions which have been taken to 

resolve the dispute prior to requesting 

EPA involvement, (3) a statement 

describing the water quality standards 

provision (i.e., a particular criterion or 

other requirement) which has resulted in 

unreasonable consequences, (4) factual 

data which substantiate the claim of 

unreasonable consequences, and (5) a 

statement of the relief sought (i.e., the 

desired outcome of a dispute resolution 

action). . . . . The proposal defines the "parties" to 

a dispute as the State and Tribe, 

although the Regional Administrator 

mayinclud_e other groups or individuals 

as parties where appropriate. In some 

cases the inclusion of permittees or , 

landowners subject to a non-point 

source restriction should be.allowed 

and, in fact, may be needed in order to 

arrh·e at a meaningful resolution of the 

dispute .. 

EPA has not proposed_ a definition of 

"unreasonable consequences" because 

the occurrence of such consequences is 

dependent on the unique circumstances 

associated with the dispute. For 

example, what might be viewed as an 

unreasonable consequence on a stream 

.segment in a large, relatively · 

unpopulated, water poor' area with a 

single discharge would likely be viewed · 

quite differently in or·near an area 

characterized by numerous discharges 

and/or large water resources. 

The proposed regulation establishes 

that mediators and arbitrators will be 

EPA employees, employees of other 

Federal agencies; or' other individuals 

with appropriate qualifications, Because 

of resource constraints, EPA anticipates 

that mediators and arbitrators will 

generally be EPA employees rather than 

consultants. Employees from other 

Federal agencies would be selected 

where appropriate subject to their 

availability. EPA intends for mediators 

and aribtrators ·to conduct the dispute . 

resolution process in a fair and impartial 

manner; and will select individuals who 

have not been involved wrth the' . 

particula~ dispute. Members of . arbitnHion·panels will be selected by 

the Regional Administrato'r in · · 

consultation with parties. EPA 
·Federal Register I Vol, .54, No. 183 I Friday, September 22, 1989 I Proposed Rules 39101 

anticipates that in some cases it will be 

appropriate to have such panels consist 

of one representative from each party to 

the dispute plus one neutral panel 

member. 

Wht;!re one of the parties to a dispute 

believes that an arbitrator has 

recommended an action to resolve the 

dispute wh_ich is not authorized by the 

CWA, the proposal allows the party to 

appeal the arbitrator's decision to the 

Regional Administrator. Suchrequests 

would be required to be in writing and 

to·include a statement of the statutory 

basis for altering the arbitrator·~ 

recommendation. 

. The proposed regulation qoes not 

include a fixed time-frame· for resolving 

disputes, primarily because EPA does 

not believe that setting such a time limit 

would be appropriate. Each dispute will 

be different, and EPA believes it is 

impossible to set a meaningful time limit 

·for resolution of all disputes. EPA 

intends to provide each step in the 

process a reasonable amount of time. 

With regard to the Federal trust 

responsibility to Indian Tribes, EPA 

believes that the scope of the Agency's 

"responsibility," however characterized, 

is defined by the Clean Water Act. 

Where resolution of disputes under 

CWA section 518 is called for, EPA 

believes that the Agency's responsibility 

is clearly to attempt to resolve such 

disputes consistent with the provisions · 

of the Clean Water Act. EPA intends to 

act primarily as a neutral facilitator of 

discussions and to encourage 

establishment of State-Tribal 

cooperative agreements which resolve 

disputes. 

2. Treatment of Indian Tribes As States · 

Consistent with the statutory 

requirement in section 518 of the CWA, 

this rule would also establish the 

procedures by which an Indian Tribe 

may qualify for treatment as a State for 

purposes of the water quality standards 

and CWA section 401 certification 

programs. For the standards program, 

such procedures would be established in 

a new § 131.8 of the water quality 

standards regulation. Section 131.8 

would include the criteria Tribes would 

be required to meet to be treated as States, list the information the Tribe 

would be required to provide in its 0 

application to EPA, and describe the 

procedure EPA would use to process the 

Tribal applications. Proposed § 131.8 is . 

intended to ensure that Tribes treated as 

States for the purposes of water quality 

standards are qualified, consis.ient with 

Clean Water Act requireni~nts, to 

conducta standards progr~m.that is 

protective of public health and the 

environment. The procedures are not 

intended to act as a barrier to Tribal 

program assumption. For the 401 

certification program, § 131.4(c) would 

establish that where EPA determines 

that a Tribe is qualified to be treated as 

a State for purposes of the water quality 

standards program, that Tribe would, 

without further effort or submission of 

information, also qualify to .be treated as 

a State-for purposes of the section 401 

certification program. 

The criteria Tribes. would be required 

to meet in order to be treated as States 

for purposes of water quality standards 

are provided in CW A ~ection 518, which 

stipulates that the Tribe must: (1) Be 

federally recognized; (2) c&rry out . 

substantial governmental duties and 

powers over a Federal Indian .. 

.reservation; (3) have appropriate · 

authority to regulate the quality of 

reservation waters; and (4) be 

reasonably expected to be capable of 

administering the standards program. 

These criteria are included in proposed 

§ 131.8(a) and are discussed below. 

The first criterion for treatment as a 

State would require the Tribe to be 

recognized by the Department of the 

Interior. The Tribe may address this 

requirement either by stating that they 

are included on the list of federally 

recognized Tribes published periodically 

by the Department of the Interior, or by 

submitting other appropriate 

documentation (e.g., if the Tribe is 

federally recognized but not yet 

included on the Department of the 

Interior list). 

The second criterion would require 

the Tribe to have a governing body · 

which is "carrying out substantial 

governmental duties and powers." The 

Agency defines·"substantial · 

governmental duties and powers" to mean that the Tribe is currently 

performing governmental functions to 

promote the health, safety, and welfare 

of the affected population within a defined geographical area. Examples of 

such functions include, but are not 

limited to, the power to tax, the power 

of eminent domain·, and police power. 

Federal recognition by the Department 

of the Interior would not, in and of itself, 

satisfy this criterion. The Agency 

. believes that, based on comments 

received on similar proposed regulations 

under the Safe Drinking Water Act 

(SDWA) and discussions with the 

.Tribes, most Tribes should be able· to 

meet this criterion without much 

difficulty (see 53 FR 37399). · 

To address the second criterion, the 

Tribe would be required to submit a narrative statement: (1) Describing the 

form of Tribal government; (2) 

describing the types of essential 

governmental functions currently · 

performed, such as those listed above; 

and (3) identifying the sources of 

authorities to perform these functions 

(e.g., Tribal constitutions, codes, etc.). 

The third criterion, concerning Tribal 

authority, means that EPA may treat an 

Indian Tribe as a State for purposes of 

water quality standards only where the 

Tribe already possesses and can 

adequately demonstrate authority to 

manage and protect water resources 

within the borders of the reservation. 

The Clean Water Act authorizes usc of 

existing Tribal regulatory authority ~or 

managing EPA programs, but it does. not 

grant additional authority to Tribes. 

In comments received on the SDWA 

Indian regulations (53 FR 37396), Tribes 

stated that they should not face the 

burden of proving their authority to 

regulate water quality. i.e., they should 

receive the same recognition of 

sovereign authority that EPA accords 

States. The Agency recognizes that, in 

general, Tribes 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 tr~atment as a 

State requests in the absence of 

verifying documentation. Just as when 

EPA considers a State application under 

other CWA programs, EPA would not 

delegate WQS program responsibility to 

a Tribe unless the Tribe were to 

adequately show that it possesses the 

requisite. authority. 

To verify authority, the Tribe would 

be required to include a statement 

signed by the Tribal legal counsel, or an 

equivalent official, explaining the legal 

basis for the Tribe's regulatory 

authority, and appropriate additional 

documentation (e.g., maps, tribal codes 

and ordinances). 

It should be noted that this criterion 

does not concern water quantity rights. 

Section 518 clearly indicates that all of 

the section 518 provisions shall be 

carried out in accordance with the 

provisions of section 101(g), which 

asserts that nothing in the Clean Water 

Act "* •. * shall be construed to 

supersede or abrogate rights to 

quantities of water which have been . 

established by any State." 

The fourth criterion would require that 

the Tribe, in the Regional 

Administrator's judgment, be 

reasonably expected to be capable of 

administering an effective standards 

program. The Agency recognizes that 

certain Tribes have not'had substantial 

experience in administering surfac;e 

water quality programs. For this reason 

the Agency would require Tribes either: 

(1) To show that t}Iey have the 
39102 Federal Register I Vol. 54, No. 183 I Friday,' September 22, 1989 I Proposed Rules 

necessary management and technical 

skills, or (2) to submit a plan detailing 

steps for acquiring the necessary· 

management and technical skills. When 

considering Tribal capability, the · 

Agency would also consider whether the 

Tribe can demonstrate the existence of 

institutions that exercise executive, 

legislative, and judicial functions, and 

whether the Tribe has a history of 

successful managerial performance of 

public health or environmental 

programs. 

EPA specifically invites public 

comment on the proposed . 

demonstration of capability requirement 

for Tribes (see § 131.8(b)(4)(v). Other 

options which EPA is considering with 

respect to the capability demonstration 

are: (1) Exclude the provision to submit 

a plan detailing steps for acquiring the 

necessary management and technical 

skills, (2) include a provision which 

would allow EPA to withdraw a 

treatment as a State determination 

where the Tribe fails to demonstrate 

adequate capability (e.g., by failing to 

submit water quality standards for EPA 

review and approval within 3 years from 

the date of qualifying for treatment as a 

State), and (3) include a provision for 

Tribes to submit draft water quality 

standards as part of the demonstration 

of capability. 

It has been suggested that any of 

these three options might place an 

additional burden on the Tribes or 

prejudice their ability to receive section 

106 program grants. In commenting on 

these options, it should be noted that 

qualifying for treatment as a State for 

purposes of administering the standards 

program has no bearing upon the ability 

of the Tribe to receive Section 106 

program grants to develop water quality 

standards nor upon EPA's providing 

technical assistance to the Tribes. 

Whether a Tribe develops standards 

before recognition or after has no 

bearing on the processes, procedures, 

time, or cost associated with developing 

water quality standards. The only 

difference is in the matter of timing. i.e., 

before or after recognition as a State. 

EPA notes that any action to withdraw 

recognition and possibly promulgate 

Federal standards is the antithesis of the 

Agency's policy to work with Indian 

tribes as sovereign governments. 

The specific information required for 

Tribal applications to EPA is described 

in proposed§ 131.8(b). "I:he application 

would be required, in general, to include 

a statement on Tribal recognition by the 

Department of the Interior, 

documentation that the Tribal governing 

bcidy has substantial duties and powers, 

documentation of Tribal authority to 

regulate water quality on the 

reservation, a narrative statement of · 

Tribal capability to administer a water 

quality standards program, and any 

other information requested by the 

Regional Administrator. 

If the Tribe has qualified for treatment 

as a State under other CWA or SDWA 

programs, then the Tribe need only 

provide the information which has not 

been submitted previously; Other CWA 

and SDWA Tribal programs which have 

been established to date include the 

CWA water quality management grant 

program (40 CFR parts 35 and 130), the 

SDWA underground injection control 

program (40 CFR part 145), and the 

SDWA public water system program (40 

CFR part 142). Information submission 

requirements common to all CWA and 

SDW A Tribal programs are included in 

§§ 131.8(b)(1), 131.8(b)(2), and parts of 

§§ 131.8(b)(3) and 131.8(b)(4). 

Requirements which may be unique to 

the water quality standards program are 

described in§§ 131.8(b)(3)(i), 

131.1,l(b)(3)(iv), 131.8(b)(4)(v), and 

131.8{b )(4)(vi). 

The proposed EPA review procedure, 

included in§ 131.8{c), specifies that_ 

following receipt of Tribal applications 

the Regioriaf Administrator would 

process such applications in a timely 

manner. The procedure calls for prompt 

notification to the Tribe that the 

application has been received, 

notification within thirty days to 

appropriate governmental entities (e.g., 

neighboring Tribes and States) of the 

application and the substance of and 

basis for the Tribe's assertion of 

authority over reservation waters, and 

an allowance of 30 days for review of 

the Tribe's assertion of authority. 

Where a Tribe's assertion of authority 

is challenged, the Regional 

Administrator, in consultation with the 

Tribe, the governmental entity 

challenging the Tribe's assertion of 

authority, and the Secretary of the 

Interior would determine whether the 

Tribe has adequately demonstrated 

authority to regulate water quality on 

the reservation. Where the Regional 

Administrator concludes that a Tribe 

has not adequately demonstrated its 

authority with respect to an area in 

dispute, then Tribal assumption of the 

standards program would be restricted 

accordingly. If the authority in dispute 

were focused on a limited area, this 

would not necessarily delay the 

Agency's decision to treat the Tribe as a 

State for the non-disputed areas. 

This procedure does not imply that 

States or Federal Agencies (other than 

EPA) have veto power over Tribal 

·applications for treatment as a State. 

Rather, the procedure is simply intended 

to ensure that the Tribe has the 

necessary authority .to administer the . 

standards program. The Agency will not 

rely solely on the assertions of a 

commenter who challenges the Tribe's 

assertion of authority; EPA will make an 

independent evaluation of the Tribal 

showing. 

EPA has not specified a time frame for 

review of Tribal applications. The 

Agency believes it is impossible to 

approve or disapprove all applications 

within a designated time frame. The 

Agency anticipates that it may be 

necessary to request additional 

information when examining Tribal 

applications. Similarly, the Agency's 

experience with States applying for 

various EPA programs indicates that at 

times meetings and discussions between 

EPA and the State are necessary before 

all requirements are met. The Agency 

believes that the same communication 

with Tribes will be important to ensure 

expeditious processing of Tribal 

applications. 

Where the Regional Administrator 

determines that the Tribal application 

satisfies all of the requirements of 

proposed§ 131.8(b), the Regional 

Administrator would promptly notify the 

Tribe that the Tribe has qualified to be 

treated as a State for purposes of the 

water quality standards program. 

A decision by the Regional 

Administrator that a Tribe does not 

meet the requirements for treatment as a 

State for purposes of water quality 

standards does not preclude the Tribe 

from resubmitting the application· at il · 

future date. If the Regional 

Administrator determines that a Tribal 

application is deficient or incomplete, 

EPA will specify.the changes which are 

necessary. 

3. Establishing Water Quality 

Standards on Indian Lands 

Where Tribes qualify to be treated as 

States for purposes of water quality 

standards, EPA would have a 

responsibility to assist the Tribe in 

establishing standards that are appropriate for the' reservation and 

consistent with the requirements of the 

Clean Water Act. EPA recognizes that 

Tribes have limited resources for 

development of water quality standards. 

Although not included in the proposed 

rule, EPA considers several options as 

acceptable to complete the task of 

establishing water quali~y standards on 

Indian larids. · 

These options for establishing Tribal 

water quality standards include: (1) 

Negotiation of cooperative agreements 

with an adjoining $tate_ to apply the 
Federal Register I Vol. 54, No. 183 I Friday, September 22, 1989 I Proposed Rules 391.01 

State's standards to the Indian lands; (2) 

incorporation of. the standards from an 

adjacent State as the Tribe's QWn, with 

or without revision; or (3) independent 

Tribal development and adoption of 

water quality standards that may 

account for unique site-specific 

conditions and waterbody uses. The first two options would be· the 

quickest and least costly ways of 

establishing Tribal water quality 

standards. Under option 1, requirements 

such as monitoring, permitting, 

certifications, and enforcement of water 

quality standards on the reservation 

could all be part of the negotiated 

agreement. Option 2 would make full 

use of information and data developed 

by the State which may apply to the 

reservation; Options 1and 2 would 

afford T.ribes the opportunity to gain 

experience in developing and 

implementing water quality standards. 

Once a Tribe has had this opportunity, 

the Tribe could then modify these 

standards to meet changing needs. 

Option 3 would require more time and 

r~sources to implement because it would 

require the Tribe to create an entire set 

of water quality standards "from 

scratch." EPA does not intend to 

discourage this approach, but notes that 

Indian Tribes may want to make full 

use, where appropriate, of the programs 

ofadjacent States. 

EPA emphasizes that the development 

of Tribal WQS can be an iterative 

process and that the WQS development 

option initially selected by the Tribe can change in subsequent triennial reviews. 

The three options described above 

represent a range of resource 

commitments, with option ~ being the 

least resource intensive and option 3 the 

most intensive. To get a WQS program 

"off the ground," a Tribe may feel 

compelled to choose option 1 or 2. This 

initial decision does not precl1,.1de the 

Tribe from developing their own 

standards for subsequent triennial 

review cycles. Tribal standards may 

evolve from essentially a codification of 

existing State standards to a rule 

entirely of Tribal origin. 

EPA notes that once designated uses 

are adopted for a waterbody, removing 

the use of adopting a sub-category of the 

use :would be subject to the 

requirements of 40 CFR 131.10. 

Therefore, Tribes which are establishing 

water quality standards for the first time 

should carefully consider ·which 

waterbody uses are appropriate, 

because removing such uses, while not 

impossible, requires a demonstration 

that attaining the use is not feasible. 

In addition.to information available 

from EPA and adjacent States, other · 

sources of technical assistance may be 

available from river basin commissions, 

special interstate or regional · 

organizations, and international 

organizations. Although the Clean 

Water Act recognizes only water quality 

standards adopted by States, EPA. and, 

when this proposed regulatipn is 

promulgated, Indian Tribes which EPA 

determines qualify for treatment as 

States, such organizations often play a 

key role in identifying the need for 

certain water quality standards, 

developing the requisite background 

information to support adoption of the 

standards, imd developing or 

recommending implementation actions. 

EPA would encourage Tribes to seek out 

the expertise of these organizations and 

for these organizations to make Tribes 

aware of the assistance and information 

that is available. In reviewing standards 

adopted by Indian Tribes qualifying as 

States (for purposes of standards), EPA 

would consider, just as it would ~or 

standards adopted by States, any 

areawide or region-wide 

recommendations and plans that exist to 

improve water quality, especially those 

to which EPA is a party. · 

Any of the three options described 

above, or some combination, would be 

acceptable to and encouraged by EPA. 

Actions taken under any of the three 

options would be subject to EPA review 

and approval. However. if EPA 

determines that the Tribe possesses 

authority to regulate water quality on 

the reservation and the Tribe declines to 

seek treatment as a State for purposes of 

water quality standards, EPA would 

have a responsibility under CWA 

section 303 to promulgate Federal water 

quality standards in order to meet the 

CWA directive to establish water 

quality standards for all surface waters. 

Depending on the circumstances, the 

standards of an adjacent State would be 

a likely starting point for such a 

promulgation. Promulgations will be 

prioritized based on varying case-bycase factors. EPA notes that Federal 

promulgation is a slow and deliberate 

process because of resource constraints 

and the complexity of Federal 

rulemaking procedures. Where permits 

come up for renewal, EPA may 

promulgate water quality standards in 

conjunction with re-issuing the permit. 

EPA recently completed promulgation 

of Federal water quality standards for 

the Colville Confederated Tribes 

reservation located in the State of 

Washington (see 54 FR 28622, July 6, . 

1989). EPA notes that this promulgation 

does not establish a precedent for future 

EPA promulgations. The promulgation 

for the Colville reservation is unique. 

because: (1) It was initiated before the 

1987 amendments to the Clean Water 

Act were enacted, and (2) it is based on 

water quality standards previously 

developed by the Colville Confederated 

Tribes for application to waters on their 

reservation. The Colville promulgation is 

not intended as a model foi: other 

reservations. Where other Indian Tribes 

wish to establish standards under the 

CWA, EPA would expect such Tribes to 

await final promulgation of today's 

proposal and apply to be treated a·s 

States for purposes of water quality 

standards. 

EPA emphasizes that Federal 

promulgation is not consistent with the 

intent of CWA sections 303(c) and 518(e) 

to provide States, and Tribes qualifying 

for treatment as States, with the first 

opportunity to set standards. In 

response to this intent, EPA's preference 

· over the years has been to work 

cooperatively with States on water 

quality standards issues and to initiate 

Federal promulgation actions only 

where absolutely necessary. The 

Colville promulgation represents only 

the ninth Federal promulgation of water 

quality standards to be completed by 

EPA. Six of the nine completed 

promulgations have been withdrawn. 

EPA again notes that Federal 

promulgation of water quality standards 

is a very deliberate process. In the case 

of the Colville promulgation, it took EPA 

more than three years (from the date of 

the request by the Tribes) to promulgate 

final water quality standards. 

EPA expects that, where Tribes 

qualify to be treated as States for 

purposes of water quality standards, 

water quality standards would be 

adopted and submitted for review to· 

E~A within 180 days. This is exactly the 

time which was provided to States 

under provisions of the 1972 Federal 

Water Pollution Control Act 

Amendments, when the Federal water 

quaHty standards program was 

expanded to include intrastate waters 

(see section 303(a)(3) of the CWA). 

When the 1972 Act was adopted, 

however, most States already had 

interstate water quality standards in 

place. By contrast, many Tribes have 

not yet developed standards for 

reservation waters. As a result, EPA 

intends to allow Regional . . 

Administrators to grant extensions to 

this time limit where. the Tribe can provide a reasonable rationale in 

writing to the Regional Administrator. 

Once EPA determines that a Tribe 

qualifies for the standards program. 

Tribal development, review, and 

adoption of water quality standards 

would be subject to the same 

requirements that States are subject to 

under the Clean· Water Act and EPA's 
39104 Federal Register I Vol. 54, No. 183 I Friday, September 22, 1989 I Proposed Rules 

implementing regulations. These 

include, but are not limited to, 

requirements for the Tribe to: (1) Hold 

public hearings for the purpose of 

reviewing water quality standards at 

least once every three years, (2) 

designate appropriate and attainable 

uses for all waterbodies such that 

downstream uses are protected, [3) 

conduct use attainability analyses, 

where appropriate, (4) adopt appropriate 

numeric or narrative criteria to support 

each designated use, and [5) include an 

antidegradation policy and 

implementation method. 

Until Tribes qualify for the standards 

program and adopt water quality 

standards under the Clean Water Act, 

EPA will, when possible, assume that 

existing water quality standards remain 

applicable. EPA's position on this issue 

is expressed in a September 9, 1988 

letter from EPA's then General Counsel, 

Lawrence Jensen, to Dave Frohnmayer, 

Attorney General for the State of _ 

Oregon, a copy of which is availabl_e in 

the docket for today's rule. This letter 

indicates that "if States have 

established standards that purport to 

apply to Indian reservations, EPA will 

assume without deciding that those 

standards remain applicable until a 

Tribe is authorized to establish its own 

standards or until EPA otherwise 

determines in consultation with a State 

and Tribe that the State lacks 

jurisdiction • • • ." 

Where a State asserts authority to 

establish future water quality standards 

for a reservation, EPA policy is to 

ensure that the affected Tribe is made 

aware of that assertion, so that any 

issues the Tribe may wish to raise can 

be reviewed as part of the normal " 

standards setting process. EPA will also 

encourage State-Tribal communication on standards issues, with one possible 

outcome being the establishment of 

short-term cooperative working 

agreements pertaining to standards and 

NPDES permits on reservations. 

D. Summary of Proposed Changes to 40 

CFR Part 131 

1. The first change would be to the 

definitions contained in § 131.3. A 

change is proposed to the term States to . include, in addition to the fifty States 

and seven Territories, Indian Tribes 

which EPA determines qualify for 

treatment as States. Also added to this 

section would be definitions ofFederal 

Indian Reservation, Indian Reservation, 

or Reservation, and Indian Tribe or Tribe taken directly from section 518(h) 

of the Act. 

2. Existing § 131.4 is proposed to be 

re-numbered § 131.4(a) and changed to 

replace the phrase "Under section 510 of 

this Act, States may develop • • *" 

with "At their discretion, States may 

develop • * *" An additional change to 

this paragraph would be to clarify that 

the definition of the word "States" is the 

one listed in the Definitions section. 

These changes are proposed to clarify 

that both States and Tribes qualifying 

for treatment as States have the right to 

establish water quality standards more 

stringent than those required by the 

CWA. Indian Tribes have an inherent 

right as sovereign governments to adopt 

water quality standards within their 

territorial jurisdictions, but such 

standards are cognizable under the 

CWA only where EPA has determined 

that the Tribe qualifies for treatment as 

a State under CWA section 518. 

3. Proposed § 131.4(b) establishes that 

States [as defined in § 131.3) have 

responsibility for issuing certifications 

under section 401 of the Clean Water 

Act. 

4. Proposed § 131.4(c) establishes that 

where Tribes qualify to be treated as 

States for purposes of water quality 

standards, they would also qualify for 

treatment as States for purposes of 

CWA section 401 certifications. 

5. Existing § 131.5 is proposed to be 

re-numbered as § 131.5(a) and new 

§ 131.5(b) is proposed to be added to 

establish that EPA has authority for 

issuing certifications under CWA 

section 401 where a State or interstate 

agency lacks such authority. 

6. A new § 131.7 is proposed to 

incorporate a dispute resolution 

mechanism. Paragraph [a) would 

establish that resolution of such 

disputes would be the responsibility of 

the lead Regional Administrator. In 

those cases where Indian reservations 

cross EPA Regional lines, the lead 

Regional Administrator would be 

assigned as directed in OMB Circular 

A-105. 

7. Proposed § 131.7[b) discusses the 

conditions under which the Regional 

Administrator would initiate the dispute 

resolution mechanism. Most important 

of these would be that, in the judgment 

of the Regional Administrator, the 

difference in water quality standards 

results in unreasonable consequences in 

aqother jurisdiction, either State or 

Indian reservation. The other necessary 

conditions for initiation of the dispute 

resolution process would be that: (1) The 

dispute is between a State and an 

Indian Tribe, [2) the parties have . 

attempted to resolve the dispute prior to 

EPA involvement. (3) the requested 

relief is consistent with the Clean Water 

Act, [4) the State and Tribal standards are legally adopted and approved by 

EPA, and (5) a valid written request for 

EPA intervention has been submitted by 

either the Tribe or State. 

8. Proposed § 131.7(c) details the 

required contents of a written request 

for resolution of a dispute to be filed by 

either a State or a Tribe. 

9. Proposed§ 131.7(d) establishes that 

EPA would initiate a dispute resolution 

action only where, in the Regional 

Administrator's judgment, such EPA 

involvement is appropriate based oil the 

factors listed in proposed § 131.7(b). 

Where EPA involvement is appropriate, 

the Regional Administrator would 

promptly notify the parties in writing· 

and solicit their written response. The . 

Regional Administrator would also 

make reasonable efforts to notify other 

interested individuals or groups that an 

EPA dispute resolution action is 

underway. 

10. Proposed § 131.7(e} stipulates that 

if, in accordance with applicable State 

and Tribal law, an Indian Tribe and 

State have entered into an agreement 

that resolves a dispute or establishes a 

mechanism for resolving a dispute, EPA 

shall defer to this agreement where it is 

consistent with the Clean Water Act 

and where it has been approved by EPA. 

11. Proposed §-131.7(£) describes the 

three options which would be available 

to the Regional Administrator for 

resolving State/Tribal disputes. The 

mechanism is broadly worded so that 

the EPA Regional Administrator would 

have enough flexibility to account for 

varying legal, economic, scientific, 

environmental and other factors 

associated with such disputes. 

Mediators appointed by the Regional 

Administrator would be responsible for 

simply facilitating discussions between 

the State and Tribe with the objective of 

arriving at a State/Tribal cooperative 

agreement. Arbitrators appointed by the 

Regional Administrator or arbitration 

panels appointed by the Regional 

Administrator in consultation with 

parties would be responsible for 

examining all pertinent information and 

issuing a written recommendation. 

Parties would not be responsible for 

abiding by the recommendation except 

where they voluntarily entered into a 

binding agreement to do so. Where one 

or more parties refuse to participate in 

mediation or arbitration, the Regional 

Administrator would have the option of 

proceeding with an arbitration-like 

default procedure that would result in 

issuance of a written recommendation 

for resolving the dispute. If formal public 

hearings are held in connection with · 

dispute resolution actions, Agency 

requirements at 40 CFR 25.5 would be 

followed. 
Federal Registen /, Vol.. 54,. Nn~. 183 / Fdday,. September· 22, 1989· /, Proposed Rules; 

12. Proposed! 131.7{g),defines.sevcral. 

terms used. within proposed §, 131:.7,, 

name!~ Dispute resolution, meclianismr 

and Parties. 

131 Amew §.131.8·is.proposed.whi:ch 

describes. the. req~irementsJor. treating. 

Indian Tribes as.States.for purposes of 

the water. quality stand.ards.P,rogr.am"' 

EPA is including similar. req~irements;in: 

each oE the.regulations being~dev.eloped. 

in response to CWA section 518 •. 

Proposed §.131.8(a) states thatthe 

RegionaLA.dministrator is:authorized.to 

treat' an. Indian Tribe as- a.State,wliere· 

the Tribe meetsJour criteria . .The four 

criteria. are a. direct.r.effection of. the. 

language oE CW.A section 518 .. 

14. Proposed§ 131.8(b) describes. the 

minimum required contents of Tribal 

applications; Wliere the Tribe has· 

previously qualified for CWA or SDWA 

programs, the Tribe would. not be 

required to provide information. which 

has already been su~mitted' tb EP.A. 

15. Proposed'§' 131.8( c) adtlresses 

EPA's procedures.fur·processihg a TriBal' 

application for treatment as a. State. 

16. Proyosed. §: 13l.8[dl addresses 

EPA's procedures for:withdrawihg a 

treatment as.a$lare for purnoses of: 

water qJJality standards determination. 

E. Consultation With. Tribes and States: 

This proposed rulemaRii:Ig.was 

develbped with the assistance:ofan 

informal· worRgroup composed' of 

representatives oflhdianTribes, States, 

and EPA. Three dhrftS'ofthis proposal 

wete distributed to the workgroup for 

comment·irr Nov:ember of1987,.fanuruy 

of 1988, and'Septemberof1988: fn 

addition,. the January and' September: 

dr.afts were· distributed to all States; alL 

Tribes (based on availableTtibal' 

. mailing list), and. several intertribal. 

organizations .for comment. A 

consultatiommeeting-with·States and, 

Tribes: was held in Denver, Golorado·in 

June· of.11J88 for: pllllposes .of. obtaining: 

additional comments; EPA believes that 

these actions are an appropriate and 

satisfactory response to· the CWA 

section 518 requirement to consult with 

TtiBes:and.States·.Ifublic·hearings:will 

be held' on: this proposed. rulemakingJot:' 

the·purpose'of soliciting further public: 

input. 

F. Alasl<a Native Villages and·.OKlahoma, 

Tribes 

EPA has concluded that Alaska 

Native Villages (except for the Annette 

Island: Reserve: a£ tfte: Metlakatlac Indiarr 

Community;),are not eligible to.apgly·for 

treatment. as States based,on1the 

definitions.ofi "Federal Indian· 

Reservation" and "fndian Tribe!' 

provided. in section.518·o£ the· Clean, 

Water Act. The €W:A,uses the following 

definitions in section 518(h): 

(;tl:'FederaJ.Indian.Reser.:vation'' means all. 

lands within tlie liinits of'any, reservation 

under the jurisdiction of'the Uhited'States 

Government, notwithsUmding,the issuance of 

any· patent; and1iiJcludihg·riglits-of~way 

running through.theressr.:vation: and 

(2} "Indian.Tribe:•·means:any, Tribe, band,, 

group, or community;recognized,bylthe· 

Secretary of the.Interior. and.exercising: 

gp.vernmental.authocit!l ov.er. a.Federal.Indian: 

reservation .. 

The Agency's·conclusion:is basedion 

the fact that since passage o£1 the Alaska, 

Nati:v:e Claims· Settlement- Ach(25U,S.C. 

1618)·in 1971,.Alils~ Nati~e Villages,, 

with· one· exception noted· a hove;. do• not: 

exercise governmentahauihority ave!:' 

Federal Indian•reservations; Bue,to.this. 

lack of.authority;.Alaska;Native Villages· 

are·not•."Tribes'' as:defined by, CW/A, 

section 518. This prevents:Alaska,Nativ:e. 

Villages from heing·.eligible t01assume, 

the wateJ:"quality•stanrlards<progr;run• 

under section:518! of the' Acto.. 

Section·518(g)' of· the:CWAldocs·not. 

affect:EP A.'s analysis; of! the·status:ofl 

Alaska Native:\lilfages:.Section 518(g), 

states:that:: 

• •· •·no provisions·of:this Act llhall'be· 

construed tb"--(tJ').grant, enlarge, or diininisli, 

or in any way,. affecttlie·scope·of. the• 

governmentarautliority,if any, of any· Alaska 

Native organization, including any. federally 

recognized 'I:riOe;.traditional Alaska.Native? 

council; or Native Council'organized'pursuant 

to the Act of June 18; 193it (ita· stat. 987}; over 

lands or persons·in•Alaska; [2) create or: validate any assertion by such organization, 

or any form ofgovemmentar authority over 

lands or. persons-in· Alaska: or (3}•in•any'way 

affect any assertion;thattlhdiamcountr,v· as· 

defined in section 1151 or. title. lB., United. 

States Code, exists or does not.exist in 

Alaska. 

Section 518(g) merely clarifies that 

providing. for Tribal partioipation under 

the cw~ illianc:Lofilself: does not 

change tlie legal status o£ the. Alaska 

Native Villages. 

The Agency also has concli.Ided'tliat 

certain Tribes on.former rese:cvations:in 

Oklahoma and elsewhere, because they 

also do not meet1 the definition·of 

"Tribe" in CW:A sectii:m-5181 likewise' 

are no~eligible:to:apply;fon·the water. 

quality standards:program. 

G. Regulatory fmpact AnalysiS: 

Under Executive CJrder 12291,EPA 

musf judge whether·a· regulation is 

"major" and therefore subject to;the 

requirement of a Regulatory Impact; 

Analysis . .A majpr. rule:is defmed.aS'a, 

regulation which is·likely, to·tesult.im 

(:L)•An;annual.effectron the.economy 

of $100 million or. more; 

(2) Amajor. increase in· costs or. price.s· 

fan consumers; indi:vidual.industcies; 

Federali. State,, andJo.cal government 

agencies;· or geogJ:apliic regions;, or. 

(3).Sigp.ificant adv.erse effect. on. 

competition,.employ,.ment •. in'W3stment. 

productivity,.inno\Ultion.,or. tlie.ability of, 

United States"based:enterprises. to 

·compete. witfi.foreigp.-liased enterprises 

in domestic or export marl<ets .. 

Because tlie proposed rule does not' 

meet the definitiOn of a, major 

regulation, tlie.Ag~ncy is.not:conducting. 

a regulatory impact' analysis. This 

proposed rule was suomitted to the 

Office:ofManag_ement and Budget 

(OMB) for review as required by 

Executive· Order 12291. Any written: 

commentsfromOMB·to EPA and,any 

EPA response·to·those'comments are 

available.forpubllc inspection· from theperson listed at' the oeginning, ofthis· 

.notice. 

H. Regulatory, Flexibility, Analysis. 

Under the Regulator.y: Flexibility· Act1 

(RFA), 51J:S.G .. seatioru601:et,seq;,.EP.t\> 

must'prepare.ruRegulatti>ry:ElexiBilityi 

Analysis for· all! proposed regulations; 

that have a significant impact on. a: 

substantial,number of.small.entities:.The 

RF A recognizes, thtee kinds, of small 

entities .. and, defines·. them1 as. follow.s:. 

• SmalL governmentaL j)Jfisdiction,-

any government of a. district. with: a. 

population of less,than,50,000. 

• Small. business-any, business. 

which is.independently, owned. and 

operated and. not dominant in.its field· as 

defined by Smal[Business 

Administration regulations und!m 

section a.of tlie Sinall Business. Act 

• Small' organization-any·not-forprofit enterprise. that is independimtly 

owned and operated' and not dominant 

in its field' (e.g,, private hospitals and. 

educational institutions) . 

Using tfie above definition of small' 

entity, EP.Ahas concluded tliat:the 

proposed'regulation. irpromulgated, wilt 

not have: a signiffcant impact· on- a· 

substantial numBerof small entitieS', and' 

that• a Regplatory·Flexibility A:nalysis·is· 

unnecessary: EPA· has·· reached. this 

conclusion• based on•the· following· 

considerations: 

• Tii.e'proposed:regulatiorr will' not 

have a significant·iinpact'on a• 

substantiafnumbe1of small' 

governmental: organiza tionsi 

.Approximately.275 Tribes are· 

potentially eligible fol" treatment as. 

States under the standards program .. 

EP A.believ.es; that;,i£ this.reg~lation:. is 

promulgated, rougj1ly"50 to.60Tribes will! 

ultimately apply1to be·treated as· States 

for. purposes of, waten qJiality. standards,, 

with.only about.20of• those.apP,ly;ing, 

during the firs.t.y.ear .. The greatest. 

deterrent is the fact.thatrthe new.CWA, 
39106 Federal Register I Vol. 54, No. 183 I Friday, September 22, 1989 I Proposed Rules 

provisions do not appear to provide 

significant monetary incentives for 

Tribes to assume the standards program. 

While most Indian Tribes would meet 

the definition of small governmental 

organization provided above, EPA 

believes the number of Tribes subject to 

significant impacts as a result of the 

proposed regulation being promulgated 

will be a very small fraction of the total 

that apply. This is primarily because 

assumption of the water quality 

standdrds program is voluntary on the 

part of Tribes. EPA assumes that a Tribe 

will not voluntarily apply to be treated 

as a State for purposes of water quality 

standards if doing so will result in 

significant adverse impacts on the Tribe. · 

Moreover, the proposed regulation 

.recognizes that Tribes have limited 

resources for development of original 

water quality standards and outlines 

several cost-effective ,options for Tribal 

establishment of appropriate water 

quality standards on Indian reservations 

by use of existing State water quality 

standards. 

• The proposed regulation will not 

have a significant impact on a 

substantial number of small businesses. 

Although it is conceivable that an Indian 

Tribe which qualifies for treatment as a 

State could adopt water quality 

standards that might impose additional 

treatment requirements on dischargers 

with NPDES permits, EPA believes that 

these situations will be rare. In general, 

the number of small businesses which 

might be required to provide additional 

treatment as a result of Tribal adoption 

of water quality standards will likely be 

a minute fraction of the total number of 

small businesses on, or upstream from, 

Indian reservations. Moreover, EPA has 

no evidence to support a conclusion that 

water quality standards adopted by 

Tribes will, in general, cause more 

restrictive NPDES permit limits'than 

contained in existing permits. Finally, 

the existing water quality standards 

regulation (40 CFR Part 131) permits 

States, and would permit Tribes 

qualifying for treatment as States, to 

adopt procedures specifying how 

individual dischargers can justify 

variances from water quality standards 

based on factors such as the existence 

of widespread economic and social 

impacts. 

• The proposed regulation will not 

have a significant impact on a 

substantial number of small 

organizations for the same reasons that 

the proposed regulation will not have a 

significant impac~ on a substantial 

number of small businesses. 

I. Paperwork Reduction Act 

The information collection 

·requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. An 

Information Collection Request (ICR) 

document has been prepared by EPA 

(ICR No. 988) and a copy may be 

obtained from David Ogden; Information 

Policy Branch; EPA; 401 M St., SW. (PM223); Washington, DC 20460 or by calling 

(202) 475-9498. -

The public reporting burden for this 

collection of information is estimated to 

average forty-three hours per response, 

including reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. 

Send comments regarding the burden 

estimate or any other aspect of this 

collection of information, including 

suggestions for reducing this burden, to 

Chief, Information Policy Branch, PM223, U.S. Environmental Protection 

Agency, 401 M St., SW., Washington, DC 

20460; and to the Office of Regulatory 

Affairs; OMB; 725 17th St., NW.; 

Washington, DC 20503, marked 

·"Attention: Desk Officer for EPA." The 

final rule will respond to any OMB or 

public comments on the information 

collection requirements. 

List of Subjects in 40 CFR Part 131 

Indian reservation water quality 

standards, Water pollution control, 

Water quality standards. 

Dated: September 12, 1989. 

William K. Reilly, 

Administrator. 

For the reasons set out in the 

Supplementary Information Section, Part 

131, subpart A, of title 40 of the Code of 

Federal Regulations is proposed to be 

amended as follows: 

PART 131-:-[AMENDED] 

1. The authority citation for Part 131 

continues to read as follows: 

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

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

2. Section 131.3 is amended by 

revising paragraph (j) and adding 

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

§ 131.3 Definitions. 

(j) States include: The 50 States, the 

District of Columbia, Guam, the 

Commonwealth of Puerto Rico, Virgin 

Islands, American Samoa, the Trust 

·Territory of the Pacific Islands, the 

Commonwealth of the Northern Mariana 

Islands, and Indian Tribes· that EPA 

determines qualify for treatment as 

Sta'tes for purposes of water quality 

standards. 

(k) Federal indian Reservation, Indian 

Reservation, or Reservation means all 

land within the limits of any Indian 

reservation under the jurisdiction of the 

United States Government, 

notwithstanding the issuance of any 

patent, and including rights-of-way 

running through the reservation." 

(1) Indian Tribe or Tribe mea:ns any 

Indian Tribe, band, group, or community 

recognized by the Secretary of the 

Interior and exercising governmental 

authority over a Federal Indian 

reservation. 

3. Section 131.4 is revised to read as 

follows: 

§ 131.4 State authority. 

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

responsible for reviewing, establishing, 

and revising water quality standards. As 

recognized by section 510 of the Clean 

Water Act, States may develop water 

quality standards more stringent than 

required by this regulation. 

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

issue certifications pursuant to the 

requirements of Clean Water Act 

section 401. Revisions adopted by States 

shall be applicable for use in issuing 

State certifications consistent with the 

provisions oi § 131.21(c). 

(c) Where EPA determines that a 

Tribe qualifies for treatment as a State 

for purposes of water quality standards. 

The Tribe likewise qualifies for 

treatment as a State for purposes of 

certifications conducted under Clean 

Water Act section 401. 

4. Section 131.5 is amended by 

redesignating the introductory text as 

paragraph (a), paragraphs (a) through (e) 

are redesignated as paragraphs (a)(l) 

through (a)(5), and a new paragraph (b) 

is added to read as follows: 

§ 131.5 EPA authority. 

(b) Section 401 of the. Clean Water Act 

authorizes EPA to issue certifications 

pursuant to the requirements of section 

401 in any case where a State or 

interstate agency has no authority for 

issuing such certifications. 

5. Section 131.7 is added to read as 

follows: 

§ 131.7 Dispute resolution mechanism. 

(a) Where disputes between States 

and Indian Tribes arise·as a result of 

differing water quality standards on 

common bodies of water, the lead EPA 

Regional Administrator, as determined 
Federal Register I Vol. 54, Ncr. 183 l Friday, September 22, 1989 I Ptoposed' Rules amo7 

based. upon OMB circular fu-105,shall· 

be resJ?onsible for acting in accordance 

with the provisions oftliis section. 

(b) The Regional' Administrator. shall 

attempt to· resolve such disputes where: 

(1) The difference in water quality 

. standardS. results in. unreasonable 

consequences in another jurisdiction, 

either a State·m~·an Indian reservation; 

(2) The dispute is between a State.(as 

defined iii§ 131.3(j),butexclusive of all 

Indian Tribes) and' a Tribe·which EPA 

has determined qualifies·tb be treated as· 

a State for purposes of water quality 

standards; 

(3) A reasonable·effort to resolve the" 

dispute without EPA involvement has· 

been made; 

( 4) The requested reliefis consistent' 

with the provisions of tlie Clean Water 

Act and other-relevant· law; 

(5) The differing State and Tribal' 

water quality·standards have been• 

adopted·pursuant'to State and Tribal 

law. and approved·by EPA; and: 

(6) A valid written request ltas been 

submitted by either the·Tribe.or. the· 

State .. 

(c) Either a1State or Tribe: may request! 

EPA to>resolve any dispute. which· 

satisfies the cciteria.ofparagraph (b) of; 

this section;.Written.requests for EPA 

involvement· should be submitted to tlia· 

lead Regional Administrator and:must 

include: 

(-1) A concise· statement of the 

unreasonable·consequence·that.are. 

alleged to h.ave arisen because of 

differing water qualit~ standards;· 

(2).A,concise description of the· 

actions which have been taken to 

resolve the dispute. without EPA 

involvement;. 

(3) A concise indication. of the water. 

quality standards provision which·has 

resulted in the alleged. unreasonable 

consequences; 

(4) Factual data to support the alleg!ld 

unreasonable consequences;·and 

(5) A statement of the relief sought 

from the alleged unreasonable 

consequences. 

(d) Where, in the Regional 

Administrator's judgment;.EP.A 

involvement is.appropriate based on the 

factors of paragraph (b) ofthis section, 

the Regional Administrator. shall. 

promptly-notify the parties. in writing 

that he/she is initiating an EPA dispute. 

resolution action and solicit their 

written. response. The. Regional 

Administrator. shall also make 

reasonable efforts to ensure that other 

interested individuals or groups-have 

notice·of. this• action ... (e) If in.accordance with applicable. 

State andTribai!aw an·Indian.11ribe 

and State have. entered. into an. 

agrerment that resolv.es the dispute or. 

establishes a.mechanism for resolving.a 

dispute, EPA shall defer to this 

agreement where.itis consistent with 

the Clean. Water Act: and where. it·has, 

been approved b~ EPA .. (f) EPAdispute resolution actions 

shall be consistent. with one or a 

combination of the following·options: 

(1) Mediation. Tlie·Regional 

Administrator may, appoiilt.a mediator 

to mediate the· dispute. Mediators slia!J: 

be EPA employees, emJ?loyees from 

othe.r Federal agencies, or othet 

individuals with appropriate 

qualifications .. (i) Where. the State and,Tribe.agree to 

participam in the dispute resolution 

process, mediation with the intent' to 

establish Tribal-State agreements. 

consistent with Clean Water Act section· · 

518( d), shall normally be pursued as a· 

first effort. 

(ii). Mediators-shalr act. as neutral' 

facilitators whose function is to 

encourag_e communication and' 

negotiation between·all garties·tb the· 

dispute. 

(iii) Mediators·may establish ad\risory 

panels, to consist in part of 

representatives-from the-affected 

parties; to study,the problem arrd1 

recommend·an·appropriate solution: 

(iv) The procedure and schedule·for 

mediation. ofindividual· disputes·shall1 be 

determined by· the•mediatol"iil~ 

consultation with. the parties;. 

(v) If formal public hearings· are held 

in connection. with tlie~actiuns taken• 

under this paragraph; Agency 

requirements at 40 CFR25.5:shall;be 

followed. 

[2)'Arbitratian .. Where. the.. parties. tb1 

the dispute agree-to·participate.in the 

dispute resolution process, .. the~Regii:mal 

Administrator may appoint1an.arbitrator:· 

or arbitration paneL to arbitrate the, 

dispute; Arbitrators shall be EP.A, 

employees, employees•from·other 

Federal. agencies, or. other individuals· 

with appropriate qualifications. 

Arbitration..panels shall i~clude: 

appropriate:members to•be.s.elecled· by 

the Regional.Administra tor-in· 

consultation. with· the parties· to· the 

dispute .. (i) The.arbitrator or"arbitration.paneL 

shall conduct one onriore·P.rivate: or. 

public meetings with the:parties and· 

actively solicit information•P.ertaining.to 

the effects.of differing_ water quality• 

permit requirements on: UP.Stream.and: 

downstream dischargers,economic· 

impacts, present and.:historicalwatec 

uses, the quality of the-waters subject to 

such standards,.and·other.factors 

relevant"to the dispute: 

(iiJ Following:conside.ration:of: 

relevant factors as definedJin paragraph. 

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

arbitration panel' shall havt!'t!ie~ 

authority. and·resgonsibilfty, to; provide 

all parties;and,the Regional. 

Administrator;wit&a written 

recommendation for.resolution;of the• 

dispute. Arbitratiompanel· 

recommendations shall, in;general; .. be 

reached liy majority•vote; However, 

where the parties:agree·to 'tlindiitg~ 

arbi tra.tion,. or: where· required: by the 

Regional· ~dministra tor,. 

recommendations ofsuch arbitration 

panels may be unanimous decisions; 

Where binding-or:non-binding. 

arbitration panels cannot reach a·· 

unanimous recommendation·a.fter a• 

reasonable period of time, the Regional' 

Administrator may direct'the paneJ!tb 

issue a non• binding decision by majority' 

vote. 

(iii)'Tlie arBitrator or arbitration panel' 

members may consult with EPA's·Offictr 

of'Gimeral·Counser on legal issues, out· 

otherwise shall have .no ex parte· 

communica tions·pertaiiling-to ·the 

dispute; Arbitrators or-arbitration. panel' 

members wlio· are· EPA.employees· shall· 

act independtmtl}dfom the'normal 

hierachy·within· the· Agency. 

(iv) The parties are not obligated to 

abide. by, the arbitrator's. or arbitration· 

panel's recommendation unless they· 

voluntarily entered.jnto a binding 

agreement to do so. 

(v) If'a party tb the disP.ute believes 

that the arbitrator or arbitration panel. 

has recommended an.action.contrary, to 

or inconsistentwith.tlie. Clean Water 

Act,.tlie party may appeal. the. 

arbitrator's recommendation to the 

.Regional Administrator. The request for 

appeal must. be in writing and must 

include a description· of the statutory 

basis for altering the.arbitrator's. 

recommendation .. 

(vi) The procedure· and schedule·for 

arbitration of individual. disputes shall 

be determined by· the arbitrator·on· 

arbitration panel in consultation: with· 

parties. 

(vii)·Ifformal. public hearings·ar.e held' 

in connection with· the·aatiuns tekerr 

under this.paragr.aph;. A:genc~r 

. requirements at 40'C:':FR.25.5.shall.be 

followed .. 

[3)'Disputer.esolutiamdefault 

procedure. Where.one:or. roor.e.parties 

(as defined in paragraph!(g),ofthis: 

section)refuse to.participatain either. 

the mediation or' arliitration;disputa· 

resolution processes,. the Regional: 

Administrator may. appoint'a·sfngle 

official or panel to review available 

information·pertaining:to the dispute 

and·to issue a·writtemreaommendallon 

for resolving;the.disputa; Review: 

officials. shall be EPA employees, 

employees from10ther: Eederal agencies,. 
• - • , • • • • • ' • J \ • 1~4 ., : • 1 

39108 Federal Register I Vol. 54, No. 183 I Friday, September 22, 1989 I Proposed Rules 

or other individuals with appropriate . 

qualifications. Review panels shall 

include appropriate members to be 

selected by the Regional Administrator 

in consultation with the participating 

parties. Recommendations of such 

review officials or panels shall, to the 

extent possible given the lack of 

participation by one or more parties, be 

reached in a manner identical to that for 

arbitration of disputes spcified in 

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

this section. 

(g) Definitions. For the purposes of 

this section: 

consistent with the terms and purposes 

of the Act and applicable regulations. 

(b) Requests by Indian Tribes for 

treatment as States for purposes of 

·water quality standards should be 

submitted to the lead EPA Regional 

Administrator. The application shall 

include the following information: 

(1) A statement that the Tribe is 

recognized by the Secretary of the 

Interior. 

(2) A descriptive statement 

demonstrating that the Tribal governing 

body is currently carrying out 

substantial governmental duties and 

powers over a defined area. The 

statement shall: 

(1) Dispute resolution mechanism 

means the EPA mechanism established 

pursuant to the requirements of Clean 

Water Act sec.tion 518(e) for resolving 

unreasonable consequences that arise 

(i) Describe the form of the Tribal 

· government; 

as a result of differing water quality 

standards that may be set by States and 

Indian Tribes located on common bodies 

of water. 

(2) Parties to a State-Tribal dispute 

include the State and the Tribe and may, 

at the discretion of the Regional 

Administrator, include an NPDES 

permittee, citizen, citizen group, or other 

affected entity. 

6. Section 131.8 is added to read as follows: 

§ 131.8 Requirements for Indian tribes to 

be treated as states for purposes of water 

quality standards. 

(a) The Regional Administrator, as 

determined based on OMB Circular 

A-105, may treat anlndian Tribe as a 

State for purposes of the water quality 

standards program if the Tribe meets the 

following criteria: 

(1) The Indian Tribe is recognized by 

the Secretary of the Interior and meets 

the definitions in § 131.3 (k) and (1). 

(2) The Indian Tribe has a governing 

body carrying out substantial 

governmental duties and powers. 

(3) The water quality standards 

program to be administered by the 

Indian Tribe pertains to the 

management and protection of water 

resources which are within the 

bo4ndaries of the Indian reservation 

and held by the Indian Tribe, within the 

boundaries of the Indian reservation 

and hel~ by the United States in trust for · the Indians, within the boundaries of the 

Indian reservation and held by a 

member of the Indian Tribe if such 

property interest is subject to a trust 

restriction on alienation, or otherwise 

within the borders of the Indian 

reservation. 

(4) The Indian Tribe is reasonably 

expected to be capable, in the Regional 

Administrator's judgment, of carrying 

out the functions of an effective water 

quality standards program in a manner 

(ii) Describe the types of 

governmental functions currently 

performed by the Tribal governing body 

such as, but not limited to, the exercise 

of police powers affecting (or relating to) 

the health, safety, and welfare of the 

affected population, taxation, and the 

exercise of the power of eminent 

domain; and 

(iii) Identify the source of the Tribal 

government's authority to carry out the 

governmental functions currently being 

performed. 

(3) A descriptive statement of the 

Indian Tribe's authority to regulate the 

quality of reservation waters. The 

statement shall include: 

(i) A map or legal description of the 

area over which the Indian Tribe asserts 

authority to regulate surface water 

quality; 

(ii) A statement by the Tribe's legal 

counsel (or equivalent official) which 

describes the basis for the Tribe's 

assertion of authority; 

. (iii) A copy of all documents such as 

Tribal constitutions, by-laws, charters, 

Executive orders, codes, ordinances, 

and/or resolutions which support the 

Tribe's assertion of authority; and 

(iv) An identification of the surface 

waters for which the Tribe proposes to 

establish water quality standards. 

(4) A narrative statement describing 

the capability of the Indian Tribe to 

administer an effective water quality 

standards program. The narrative 

statement shall include: 

(i) A description of the Indian Tribe's 

previous management experience 

including, but not limited to, the 

administration of programs and services 

authorized by the Indian SelfDetermination and Education 

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

the Indian Mineral Development Act (25 

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

Sanitation Facility Construction Activity 

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

(ii) A list of exi~ting environmental or. 

pU,blic health programs administered by 

the Tribal governing body and copfes of 

related Tribal laws, policies, 'and 

regulations; . 

(iii) A description of the entity (or 

entities) which exercise the executive. 

legislative, and judicial functions of the 

Tribal government; · 

(iv) A description of the existing. or 

proposed, agency of the Indian Tribe 

which will assume primary 

responsibility for establishing, 

reviewing, implementing, a·nd revising 

water.quality standards; 

(v) A description of the technical and 

administrative capabilities of the staff to 

administer and manage an effective 

water quality standards program or a 

plan which proposes how the Tribe will 

acquire additional administrative and 

technical expertise. The plan must 

address how the Tribe will obtain the 

funds to acquire the administrative and 

techniCal expertise. 

(5) Additional documentation required 

by the Regional Aciministrator which. in· 

.the judgment of the Regional 

Administrator, is necessary to support a· 

Tribal request for treatment as a State. 

(6) Where the Tribe has previously 

qualified for treatment as a State under 

a Clean Water Act or Safe Drinking 

Water Act program, the Tribe need only 

provide the required information which 

has not been submitted in a previous 

treatment as a State application. 

(c) Procedure for processing an Indian 

Tribe's application for treatment as a 

State. 

(1) The Regional Administrator shall 

process an application of an Indian 

Tribe for trea.tment as a State submitted 

pursuant to § 131.8(b) in a timely 

manner. He shall promptly notify the 

Indian Tribe of receipt of the 

application. 

(2) Within 30 days after receipt of the 

Indian Tribe's application for treatment 

as a State, the Regional Administrator 

shall provide appropriate notice. Notice 

shall: 

(i) Include information on the 

substance and basis of the Tribe's 

assertion of authority to regulate the 

quality of roservatio_n waters; and 

(ii) Be provided for 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 Tribe's 

assertion of authority. 

(4) If a Tribe's asserted authority is 

subject to a competing or conflicting 

claim. tho Regional Administrator. after 

consultation with the Secretary of the 

Interior, or his designee, and in 
Federal ~egister I Vol, 54, No. 183 I Friday, September 22, 1989 I Proposed ·Rules: 

consideration of other comments 

received; shall determine whether the 

Tribe. has adequately demonstrated that 

it meets the requirements of 

§ 131.8( a )(3). 

(5) Where the Regional A!lministrator 

determines that a Tribe meets the , 

requirements of this section, he shall 

promptly provide written notification to 

the Indian Tribe that the Tribe has 

qualified to be treated as a State for 

pl)rposes of water quality standards and 

that the Tribe may initiate the 

formulation and adoption of water 

quality standards approvable u~der this 

part. 

[FR D?c· 89-2i962 Filed 9-21-89: 8:45am} 

BILLING CODE 6560-50-M 

. 39109