### 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~** waterquality standards regulation that governs the development, review. revision and approval ofwaterquality standards under the Clean WaterAct. The revisions would establish the criteria and procedures by which an Indian Tribe can qualify for treatment as a State for purposes ofthe Clean Water Act section 303 waterquality 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 ofwater. This action is being taken pursuantto the requirements ofsection 518 ofthe Clean WaterAct 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, iftime permits, EPA will briefhearing attendees on the requirements ofthe
waterquality standards program, including a general overview ofthe
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 ofWaterRegulations and Standards, U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460. (202) 475-7315.

FOR FURTHER INFORMATION CONTACT: David K. Sabock, Standards Branch, Criteria and Standards Division (WH585), Office ofWaterRegulations 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 ofthe ProposedRulemaking

1. State-Tribal Dispute· Resolution

Mechanism 2. Treatment ofIndian Tribes as States 3. Establishing Water Quality Standards on

Indian Lands D. Summary ofProposed 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 ofSubjects 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 ofTitle II (Construction Grants), section 104 (Research, Investigation, andTraining), 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 waterquality standards on common bodies ofwater.

This proposed regulation is in

.response to the CWA section 518 requirements pertaining to the section 303 waterquality standards program and the section 401 certification
program. Such requirements include a directive to specify how Tribes will be treated as States for purposes ofthe
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) ofthe Clean WaterAct (33 U.S.C. 1313(c)) requires the States to develop, review, and revise
waterquality standards for all surface
waters ofthe 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 waterquality standards and, where necessary, to promulgate Federal
water quality standards.

Promulgation ofthis regulation would supplement the standards program by establishing a procedu_re by which Tribes can adopt standards pursuant to the Clean WaterAct. Under this regulation, waterquality standards / would be fashioned to meet the requirements ofindividual reservations, adopted by an authorizedTribal governing body, and submitted to EPA for review and approval/disapproval.

Ifapproved, the Tribal standards would be applicable to other Clean WaterAct programs, such as the National Pollutant Discharge Elimination System (NPDES) permit

·program. 

### Ifdisapproved, EPA would have a responsibility to promulgate Federal standards ifthe Indian Tribe did
not adopt changes required by EPA's disapproval. Such an EPA promulgation would only be for those portions ofthe standards disapproved by EPA.

B. EPA's Indian Policy

This rule would be consistent with Federal Policy statements regarding Indian Tribes. OnJanuary 24, 1983, the Federal government established an Indian policy statement providing for
treatment ofTribal 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

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## I Proposed Rules 

### 39099

close involvement ofTribal 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 ofStates.

C. Discussion ofthe Proposed 

### Rulemaking

1. 

### State-TribalDisputeResolution Mechanism

Section .518 requires EPA to establish

a "* * • 

### mechanism for the resolution of
any unreasonable consequences that
may arise as a result ofdiffering water quality standards that may be set by States and Indian Tribes located on

common bodies ofwater." 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.

EPAdoes not believe, for example, that section 518 grants EPA the

.authority to override section 510 ofthe Act. CWA section 510 is·a "savings clause" which provides that States are not precluded from adopting requirements respecting control or abatement ofpollution as long as such requirements are not less stringent than the requirements ofthe Clean Water Act. See 

### InternationalPaperv. 

### 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 waterquality 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 ofresolving 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 waterquality standards more stringent than EPA may believe to be necessary or appropriate. EPA invites further public comment

on the Agency's interpretation ofCWA section 510. Comments received on various drafts oftoday's proposal have been mixed. Many commenters have supported EPA's interpretation ofCWA section 510 as contained in this proposed rulemaking. Other commenters, however, have argued that

as a means ofresolving a State-Tribal dispute which has otherwise been intractable, section518 does provide a

narrow exception to section 510 and authorizes EPA: (1) To disapprove a State orTribal**~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 ofscientific 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 ofwater quality criteria more stringent than natural background water

.quality. However, EPA's water quality standards regulation does not require a justification ofa use designation which
meets or exceeds the "fishable-

. swimmable" goals ofthe CWA (see 40 CFR 131.10(k)). Similarly, EPA generally does not requirejustification.or other evaluation ofthe 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 ofthe CWA, EPA will advise the State orTribe of this finding. EPA will use best professionaljudgment to make such determinations. Such determinations, however, will not necessarily be grounds for disapproval ofState or Tribal WQS because, as explained above, EPA does notbelieve the Agency has the authority to disapprove a State

orTribal 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 sttingentthan
necessary to comply with the requirements ofthe CWA, as interpreted in EPA's regulation at40 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 ofpermit 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 ofthe 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 ofeach ofthese 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 ofarriving at a State-Tribal agreement or otherresolution 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 ofrepresentatives 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 CWA, andrecommending 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 . ' I 

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## I Proposed Rules

exparte-communication pertainingto the dispute;except thanhey would be allowed to contact EPA's Office of General Counsel for legal advice.

The third technique, voluntary binding

.arbitration, wouldbe 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. Itis EPA'sjudgment 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 likely resolve most ofthe disputes that becau.se it would increase the probability ofresolving 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, thatthe Agency has the.authority, under CWA sections 518

.and 303, to compel

## a-Tribe or a State to submit to binding arbitration ofa 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 otherfour 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 ofthe CWA. EPA dpes not believe that the Agency has tlie authority to proml!lgate Federal standards which are less stringent-than ' those aqoptedby a State orTribe and approved by EPA as a means of resolving 

## aState/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 ofmediation 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 asan 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 verysimilar to · arbitration, but has been'included as a separate Regional Administrator option .but are not limited to, the following: (1) A State orTribe agrees to revise the limits ofa permit to ensure that downstream water quality standards are met, (2) a State orTribe 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 orTribe issues a temporary variance from water quality standards for a particular**discharge~** (4)

a permittee or landowner agrees to · provide additional waterpollution. controls to eliminate the unreasonable
consequences·, (5) EPA assumes permit' issuing authority for a State orTribe and re-issues a permit to ensure that

· downstream water quality standards are

met, or (6) EPA promulgates Federal

· waterquality standards where a State

orTribal standard does not meet the requirements ofthe Clean WaterAct.

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 ofthe 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 reliefis within the authority ofthe CWA (e.g., is not a request to replace State/ Tribalstandards which comply with the ·CleanWaterAct 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

orTribe. Although th{! Regional · Administrator may decline to initi(;lte a· · dispute resolution action based on any ofthe 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 otherrequirement) which has resulted in unreasonable consequences, (4) factual data which substantiate the claim of unreasonable consequences, and (5) a statement ofthe relief sought (i.e., the desired outcome ofa dispute resolution action).

. . . .

The proposal defines the "parties" to

a dispute as the State andTribe, although the Regional Administrator mayinclud_e othergroups or individuals

as parties where appropriate. In some

cases the inclusion ofpermittees 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 ofthe dispute

..

EPA has not proposed_a definition of "unreasonable consequences" because the occurrence ofsuch 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/orlarge waterresources.

The proposed regulation establishes that mediators and arbitrators will be EPA employees, employees ofother Federal agencies; or'other individuals with appropriate qualifications, Because ofresource 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 

## afair 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

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anticipates that in some cases it will be appropriate to have such panels consist ofone representative from each party to the dispute plus one neutral panel member.

Wht;!re one ofthe 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 ofthe 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 ·forresolution ofall disputes. EPA intends to provide each step in the
process a reasonable amount oftime.

With regard to the Federal trust responsibility to IndianTribes, EPA believes that the scope ofthe Agency's "responsibility," however characterized, is defined by the Clean WaterAct. Where resolution ofdisputes 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 · ofthe Clean WaterAct. EPA intends to act primarily as a neutral facilitator of discussions and to encourage establishment ofState-Tribal cooperative agreements which resolve disputes.



### 2. Treatment of Indian TribesAsStates · Consistent with the statutory requirement in section 518 ofthe CWA, this rule would also establish the procedures by which anIndian Tribe
may qualify for treatment as a State for purposes ofthe waterquality standards and CWA section 401 certification
programs. For the standards program, such procedures would be established in

a new § 

### 131.8 ofthe 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 EPAwould use toprocess the Tribal applications. Proposed § 

### 131.8 is

. intended to ensure that Tribes treated as States for the purposes ofwaterquality standards are qualified, consis.ient with Clean WaterAct**requireni~nts,** 

### to conducta standards**progr~m.that** 

### is protective ofpublic 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 ofthe waterquality standardsprogram, that Tribe would, without further effort or submission of information, also qualify to .be treated as

a State-for purposes ofthe section 401 certification program.

The criteria Tribes.would be required
to meet in order to be treated as States for purposes ofwater quality standards

are provided in CWA**~ection** 

### 518, which stipulates that the Tribe must: (1) Be federally recognized; (2) 

### c&rry out

. substantial governmental dutiesand
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 ofthe Interior. The Tribe may address this requirement either by stating that they

are included on the list offederally recognized Tribes published periodically by the Department ofthe Interior, orby submitting other appropriate documentation (e.g., ifthe Tribe is federally recognized but not yet included on the Department ofthe 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 ofthe affected population within a defined geographical area. Examples of such functions include, but are not limited to, the power to tax, the power ofeminent domain·, and police power. Federal recognition by the Department ofthe Interior would not, in and ofitself, satisfy this criterion. The Agency

. believes that, based on comments

received on similar proposed regulations under the Safe Drinking WaterAct (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 ofTribal government; (2) 

### describing the typesofessential 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 waterresources within the borders ofthe 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 ofproving 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 recognizeTribal authority and approve**tr~atment** 

### as a State requests in the absence of verifying documentation. Just as when EPA considers 

## aState 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 quantitiesofwaterwhich have been

. established by any State."

The fourth criterion would require that the Tribe, in the Regional Administrator'sjudgment, be reasonably expected to be capable of administering an effective standards
program. The Agency recognizesthat 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

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## I Proposed Rules

necessary management and technical skills, or (2) to submit a plan detailing steps for acquiring the necessary· managementand technical skills. When consideringTribal capability, the · Agency would also consider whether the Tribe can demonstrate the existence of institutions that exercise executive, legislative, andjudicial 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 ofcapabilityrequirement 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 3years from the date ofqualifying for treatment as a State), and (3) include a provision for Tribes to submit draft water quality standards as part ofthe demonstration ofcapability.

Ithas 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 ofadministering the standards
program has no bearing upon the ability ofthe 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 oftiming. i.e., before or afterrecognition as a State. EPA notes that any action to withdraw recognition and possibly promulgate Federal standards is the antithesis ofthe 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 ofthe Interior, documentation that the Tribal governing bcidy has substantial duties and powers, documentation ofTribal 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.

Ifthe 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 SDWA 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 ofTribal applications the RegioriafAdministrator 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) ofthe application and the substance ofand basis for the Tribe's assertion of authority over reservation waters, and

an allowance of30 days for review of the Tribe's assertion ofauthority.

Where a Tribe's assertion ofauthority is challenged, the Regional Administrator, in consultation with the Tribe, the governmental entity challenging the Tribe's assertion of authority, and the Secretary ofthe 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 ofthe standards program would be restricted accordingly. Ifthe 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 overTribal ·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 ofa commenter who challenges the Tribe's assertion ofauthority; EPA will make an independent evaluation ofthe Tribal showing.

EPA has not specified a time frame for review ofTribal 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 ofTribal applications.

Where the Regional Administrator determines that the Tribal application satisfies all ofthe 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 ofthe
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 ofwater quality standards does not preclude the Tribe from resubmitting the application·at il · future date. Ifthe 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 ofwater 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 ofthe CleanWaterAct. EPA recognizes that Tribes have limited resources for development ofwater 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 ofcooperative agreements with an adjoining $tate_to apply the

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## 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

orwithout 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 establishingTribal waterquality standards. Under option 1, requirements such as monitoring, permitting, certifications, and enforcement ofwater quality standards on the reservation could all be part ofthe negotiated agreement. Option 2would make full

use ofinformation and data developed by the State which may apply to the reservation; Options 1and2would 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 ofwater 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, ofthe programs ofadjacent States.

EPA emphasizes that the development ofTribal WQS canbe 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 ofresource commitments, withoption**~** 

### being the leastresource intensive and option 3 the
most intensive. To get a WQS program "offthe 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 ofTribal origin.

EPA notes that once designated uses

are adopted for a waterbody, removing the use ofadopting a sub-category ofthe

use :would be subject to the requirements of40 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 oftechnical assistance may be available from river basin commissions, special interstate orregional · organizations, and international organizations. Although the Clean Water Act recognizes only waterquality 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 ofthe standards, imd developing or recommending implementation actions. EPA would encourage Tribes to seek out the expertise ofthese organizations and for these organizations to make Tribes

aware ofthe assistance and information that is available. In reviewing standards adopted by Indian Tribes qualifying as States (for purposes ofstandards), 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 ofthe three options described above, or some combination, would be acceptable to and encouraged by EPA. Actions taken under any ofthe three options would be subject to EPA review and approval. However. ifEPA determines that the Tribe possesses authority to regulate waterquality 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 ofan 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 ofresource constraints and the complexity ofFederal 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 ofFederal 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 otherIndian Tribes wish to establish standards under the CWA, EPA would expect such Tribes to await final promulgation oftoday's proposal and apply to be treated a·s States for purposes ofwater quality standards.

EPA emphasizes that Federal promulgation isnot consistent with the intent ofCWA 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 ofwater quality standards tobe completed by EPA. Six ofthe nine completed promulgations have been withdrawn. EPAagain notes that Federal promulgation ofwater quality standards is

## avery deliberate process. In the case ofthe 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 ofwater 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 underprovisions ofthe 1972 Federal WaterPollution Control Act Amendments, when the Federal water quaHty standards program was expanded to include intrastate waters (see section 303(a)(3) ofthe 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 ofwater quality standards would be subject to the same requirements that States are subject to under the Clean·WaterAct and EPA's

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implementing regulations. These include, but are not limited to, requirements for theTribe to: (1) Hold public hearings for the purpose of reviewing waterquality 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 ornarrative criteria to support each designated use, and [5) include an antidegradation policy and implementation method.

Until Tribes qualify for the standards
program and adoptwaterquality standards under the Clean WaterAct, EPA will, when possible, assume that existing waterquality standards remain applicable. EPA's position on this issue is expressed in a September9, 1988 letter from EPA's then General Counsel, Lawrence Jensen, to Dave Frohnmayer, Attorney General for the State of

_ Oregon, a copy ofwhich is availabl_e in the docket for today's rule. This letter indicates that "ifStates have established standards that purport to apply to Indian reservations, EPA will

assume withoutdeciding 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 andTribe 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 ofthat assertion, so that any issues the Tribe may wish to raise can bereviewed as part ofthe 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 ofProposed 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) ofthe 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 ofthe 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 Stateshave theright to establish waterquality standards more stringent than those required by the CWA. Indian Tribes have an inherent right as sovereign governments to adopt
waterquality 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 ofthe Clean Water Act.

4. Proposed § 131.4(c) establishes that where Tribes qualify to be treated as States for purposes ofwater 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 thatresolution ofsuch 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 ofthese would be that, in the judgment ofthe Regional Administrator, the difference in water quality standards results in unreasonable consequences in aqotherjurisdiction, eitherState or Indian reservation. The other necessary conditions for initiation ofthe 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 reliefis 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 ofa written request for resolution ofa 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'sjudgment, 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 orgroups 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 WaterAct 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 ofa written recommendation for resolving the dispute. Ifformal 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 oEthe.regulations**being~dev.eloped.** in response to CWA section 518•. Proposed §.131.8(a) states thatthe RegionaLA.dministrator is:authorized.to treat'an.IndianTribe as- a.State,wliere· the Tribe meetsJourcriteria

..The four criteria.area.direct.r.effection of.the. language oECW.A section 518

..

14. Proposed§ 131.8(b) describes.the minimum required contents ofTribal applications; Wliere the Tribe has· previously qualified for CWA or SDWA
programs, the Tribe would.notbe requiredto 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[dladdresses EPA's procedures for:withdrawihg a treatment as.a$lare for purnoses of:
water qJJality standards determination.

E. ConsultationWith.Tribes andStates:

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·irrNov:ember of1987,.fanuruy of 1988, and'Septemberof1988: fn addition,.the January and'September: dr.afts were·distributed toall States; alL Tribes (based on availableTtibal'

.mailing list), and.severalintertribal. organizations.forcomment. A consultatiommeeting-with·States and, Tribes:was held inDenver, Golorado·in June·of.11J88 for:pllllposes.of.obtaining: additional comments; EPAbelieves that these actions are an appropriate and satisfactoryresponse 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:MetlakatlacIndiarr Community;),are not eligible to.apgly·for
treatment.as States based,on1the definitions.ofi"FederalIndian· Reservation" and "fndian Tribe!' provided.in section.518·o£the·Clean, WaterAct. The €W:A,usesthe 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 ofthe.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£1the Alaska, Nati:v:e Claims·Settlement-Ach(25U,S.C. 1618)·in**1971,.Alils~ Nati~e**  Villages,, with·one·exception noted·ahove;.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!ofthe'Acto..

Section·518(g)'of· the:CWAldocs·not. affect:EPA.'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, ordiininisli,

orin any way,. affecttlie·scope·of.the• governmentarautliority,if any, ofany·Alaska Native organization, including any. federally recognized 'I:riOe;.traditional Alaska.Native? council; orNative Council'organized'pursuant
to the Act ofJune 18; 193it (ita·stat. 987}; over lands or persons·in•Alaska; [2) create or: validate any assertion by such organization,

or any form ofgovemmentarauthority 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 Tribalpartioipation under the**cw~** illianc:Lofilself: does not change tlie legalstatus o£the.Alaska Native Villages.

The Agency also has concli.Ided'tliat certain Tribes on.formerrese:cvations:in Oklahoma and elsewhere, because they also do notmeet1the 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:

UnderExecutive CJrder 12291,EPA musfjudge whether·a·regulation is "major" and therefore subject to;the requirement ofa Regulatory Impact; Analysis

..Amajpr.rule:is defmed.aS'a, regulationwhichis·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;·orgeogJ:apliic regions;,or.

(3).Sigp.ificantadv.erse effect.on. competition,.employ,.ment•. in'W3stment. productivity,.inno\Ultion.,or.tlie.ability of, United States"based:enterprises.to ·compete.witfi.foreigp.-liasedenterprises in domestic or export marl<ets

..

Because tlie proposedrule does not'
meet the definitiOn ofa,major regulation,**tlie.Ag~ncy** is.not:conducting.

a regulatory impact'analysis. This proposed rule was suomitted to the Office:ofManag_ementandBudget (OMB) for review as required by Executive·Order 12291. Any written: commentsfromOMB·to EPA and,any EPA response·to·those'comments are available.forpubllcinspection·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!proposedregulations; thathave a significant impact on.a: substantial,numberof.small.entities:.The RFA recognizes,thtee kinds,ofsmall entities

..and,defines·.them1as.follow.s:.

• SmalLgovernmentaLj)Jfisdiction,-
any governmentofa.district.with:a. population ofless,than,50,000.

• Small.business-any,business. which is.independently,owned.and operated and.not dominant in.its field·as definedby Smal[Business Administration regulations und!m section a.oftlie Sinall Business.Act

• Small'organization-any·not-forprofit enterprise.that is independimtly owned and operated'andnot dominant inits field'(e.g,, private hospitals and. educational institutions)

.

Using tfie above definitionofsmall' entity, EP.Ahas concluded tliat:the proposed'regulation. irpromulgated, wilt
not have:a signiffcantimpact·on- a· substantialnumBerofsmall 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• substantiafnumbe1ofsmall' governmental:organizationsi .Approximately.275 Tribes are· potentially eligible fol" treatment as. States under the standards program

.. EPA.believ.es;that;,i£**this.reg~lation:.**is promulgated, rougj1ly"50 to.60Tribes will! ultimately apply 1to be·treatedas·States for. purposes of,watenqJiality.standards,, with.only about.20of•those.apP,ly;ing, during the firs.t.y.ear

..The greatest. deterrent is the fact.thatrthe new.CWA,

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provisions do not appear to provide significant monetary incentives for Tribes to assume the standards program. While most Indian Tribes would meet the definition ofsmall governmental organization provided above, EPA believes the number ofTribes subject to significant impacts as a result ofthe proposed regulation being promulgated will be a very small fraction ofthe total that apply. This is primarily because assumption ofthe water quality standdrds program is voluntary on the part ofTribes. EPA assumes that a Tribe will not voluntarily apply to be treated

as a State for purposes ofwater quality standards ifdoing so will result in significantadverse impacts on the Tribe. · Moreover, the proposed regulation .recognizes that Tribes have limited

resources for development oforiginal
water quality standards and outlines several cost-effective,options for Tribal establishment ofappropriate water quality standards on Indian reservations by use ofexisting State water quality standards.

• The proposed regulation will not have a significant impact on a substantial number ofsmall 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 ofsmall businesses which might be required to provide additional
treatment as a result ofTribal adoption ofwater quality standards will likely be

a minute fraction ofthe 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 canjustify variances from water quality standards based on factors such as the existence ofwidespread economic and social impacts.

• The proposed regulation will not have a significant impact on a substantial number ofsmall organizations for the same reasons that the proposed regulation will not have a significant**impac~** on a substantial number ofsmall businesses. I. Paperwork Reduction Act

The information collection ·requirements in this proposed rule have been submitted for approval to the Office ofManagement and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 

### etseq. An Information Collection Request (ICR) document has been prepared byEPA (ICR No. 988) and a copy may be obtained from David Ogden; Information Policy Branch; EPA; 401 M St., SW. (PM223); Washington, DC 20460 orby calling (202) 475-9498.

-

The public reporting burden for this collection ofinformation is estimated to average forty-three hours perresponse, including reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection ofinformation.

Send comments regarding the burden estimate or any other aspect ofthis collection ofinformation, 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 ofRegulatory 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 ofSubjects in 40 CFR Part 131

Indian reservation water quality standards, Waterpollution 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, oftitle 40 ofthe 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 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 Sta'tes for purposes ofwater quality standards.

(k) 

### Federal indian Reservation, Indian Reservation, or

### Reservation means all land within the limits ofany Indian reservation under thejurisdiction ofthe United States Government, notwithstanding the issuance ofany 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 ofthe 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 ofthe Clean WaterAct, 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 ofClean WaterAct 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 ofwater quality standards. The Tribe likewise qualifies for
treatment as a State for purposes of certifications conducted under Clean WaterAct 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 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 and Indian Tribes arise·as a result of differing water quality standards on

common bodies ofwater, the lead EPA Regional Administrator, as determined

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# amo7

based.upon OMB circular fu-105,shall· be resJ?onsible for actinginaccordance with the provisions oftliis section.

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

(1) The difference in waterquality

.standardS.results in.unreasonable
consequences in anotherjurisdiction, either a**State·m~·an** Indian reservation;

(2) The dispute is between a State.(as defined iii§ 131.3(j),butexclusive ofall Indian Tribes) and'a Tribe·whichEPA has determined qualifies·tb betreated as·

a State for purposes ofwaterquality standards;

(3) A reasonable·effort to resolve the" disputewithoutEPA involvementhas· been made;

( 4) The requested reliefis consistent' with the provisions of

### tlie Clean Water Actand other-relevant·law;

(5) The differing State andTribal'
waterquality·standards havebeen• adopted·pursuant'to State and Tribal law.and approved·byEPA; and:

(6) A valid written requestltas been submitted byeither the·Tribe.or.the· State

..

(c) Either a1State orTribe:may request! EPA to>resolve any dispute.which· satisfies the cciteria.ofparagraph (b) of; this section;.Written.requests for EPA involvement·shouldbe submittedto tlia· lead RegionalAdministrator and:must include:

(-1) A concise·statement ofthe unreasonable·consequence·that.are. alleged to h.ave arisen because of differing water**qualit~** 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 provisionwhich·has resultedin the alleged.unreasonable
consequences;

(4) Factual data to support the alleg!ld unreasonable consequences;·and

(5) A statement ofthe reliefsought from the alleged unreasonable
consequences.

(d) Where, in the Regional Administrator'sjudgment;.EP.A involvement is.appropriate basedon the factors ofparagraph (b) ofthis section, the Regional Administrator. shall. promptly-notify the parties.in writing that he/she is initiating an EPAdispute. resolution action and solicit their written.response. The. Regional Administrator. shall also make reasonable efforts to ensure that other interested individuals orgroups-have notice·of.this•action

...

(e) Ifin.accordance with applicable. State andTribai!aw an·Indian.11ribe and Statehave. entered.into an. agrerment that resolv.es the dispute or. establishes a.mechanism for resolving.a dispute, EPAshall defer to this agreement where.itis consistent with the Clean.WaterAct:and where.it·has, been approved**b~** 

### EPA

..

(f) EPAdispute resolution actions shall be consistent.with one or

### a combinationofthe 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, orothet 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 WaterActsection· · 518(d), shallnormally be pursued as

### a· first effort.

(ii).Mediators-shalract.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 arrd 1 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) Ifformal public hearings·areheld in connection.with**tlie~actiuns** taken• underthis paragraph; Agency requirements at40 CFR25.5:shall;be followed.

[2)'Arbitratian

..Where.the..parties.tb1 the dispute agree-to·participate.in the dispute resolution process,

..**the~Regii:mal** Administratormay appoint1an.arbitrator:·

or arbitration paneLto arbitrate the, dispute; Arbitrators shall be EP.A, employees, employees•from·other Federal.agencies, or. otherindividuals· with appropriate qualifications. Arbitration..panels shall**i~clude:** appropriate:members to•be.s.elecled·by the Regional.Administrator-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.ofdiffering_waterquality• permit requirements on:UP.Stream.and: downstream dischargers,economic· impacts, presentand.:historicalwatec

uses, the quality ofthe-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) ofthis section, the arbitrator.or· arbitration panel'shall**havt!'t!ie~** authority.and·resgonsibilfty,to;provide all parties;and,the Regional. Administrator;wit&a written recommendationfor.resolution;of the• dispute. Arbitratiompanel· recommendations shall, in;general;

..be reached liy majority•vote; However, where the parties:agree·to**'tlindiitg~** arbitra.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.ftera• reasonable period oftime, the Regional' Administratormay direct'thepaneJ!tb issue a non•binding decision 

### by majority'
vote.

(iii)'Tlie arBitrator or arbitration panel' members may consult with EPA's·Offictr of'Gimeral·Counseronlegal issues, out· otherwise shall have .no exparte· communications·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·ofthe statutory basis for altering the.arbitrator's. recommendation

..

(vi) The procedure·and schedule·for arbitration ofindividual.disputes shall be determinedby·the arbitrator·on· arbitration panel in consultation:with· parties.

(vii)·Ifformal.public hearings·ar.e held' in connectionwith·the·aatiuns tekerr under this.paragr.aph;.**A:genc~r**

.requirements at40'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: Administratormay. 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.shallbe EPAemployees, employees from10ther: Eederal agencies,.•

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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 ofsuch 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 ofdisputes 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 ofthe Act and applicable regulations.

(b) Requests by Indian Tribes for
treatment as States for purposes of
·waterquality 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 ofthe 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) Disputeresolution mechanism

means the EPA mechanism established pursuant to the requirements ofClean WaterAct sec.tion 518(e) for resolving unreasonable consequences that arise (i) Describe the form ofthe Tribal

· government;

as a result ofdiffering waterquality standards that may be set by 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 A-105, may treat anlndianTribe as a State for purposes ofthe waterquality 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 (1).

(2) The Indian Tribe has a governing body carrying out substantial governmental duties and powers.

(3) The waterquality standards
program to be administered by the Indian Tribe pertains to the management and protection ofwater

resources which are within the bo4ndaries ofthe Indian reservation and held by the Indian Tribe, within the boundaries ofthe Indian reservation and**hel~** by the United States in trust for · the Indians, within the boundaries 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.

(4) The IndianTribe is reasonably expected to be capable, in the Regional Administrator's judgment, ofcarrying
out the functions ofan 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 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 the quality ofreservation waters. The
statement shall include:

(i) A map or legal description ofthe

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 ofauthority;

.(iii) A copy ofall documents such as Tribal constitutions, by-laws, 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 statement describing 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 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 ofthe entity (or entities) which exercise the executive. legislative, and judicial functions ofthe Tribal government; ·

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

(v) A description ofthe technical and administrative capabilities ofthe staffto administer and manage an effective
waterquality 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 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 Regional Administrator shall
process an application ofan 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 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 ofroservatio_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 ofauthority.

(4) Ifa Tribe's asserted authority is subject to a competing or conflicting claim. tho Regional Administrator. after consultation with the Secretary ofthe Interior, or his designee, and in

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consideration ofother 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 ofthis 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 ofwaterquality standards and that theTribe may initiate the formulation and adoption ofwater quality standards approvable**u~der** this part.

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

BILLING CODE 6560-50-M 

### . 39109