TRIBAL EXECUTIVE COMMITTEE 

P.O. BOX 305 • LAPWAI, IDAHO 83540 • (208) 843-2253 

July 7, 2014 

Fred Leutner 

Office of Science and Technology (Mail Code 4305T) 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, NW 

. Washington, DC 20460 

By Electronic Mail: TASreinterpretation@epa.gov 

Re: Nez Perce Tribe's comments on Potential Reinterpretation of Clean 

Water Act Provisions Regarding Tribal Eligibility to Administer 

Regulatory Programs 

Dear Mr. Leutner: 

I write on behalf of the Nez Perce Tribe expressing our strong support for EPA's 

determination to potentially reinterpret the Clean Water Act (CWA) provisions 

regarding treatment of tribes in a manner similar to a state (T AS)~ and looks 

forward to consulting directly with EPA on any such reinterpretation. Specifically, 

EPA is considering reinterpreting section 518( e) as a delegation by Congress of 

authority to eligible tribes to administer Clean Water Act regulatory programs over 

their entire reservations. This reinterpretation would replace EPA's current 

interpretation that applicant tribes need to demonstrate their inherent regulatory 

authority. All other tribal eligibility requirements established in the Act and EPA's 

regulations would remain in place. 

For the reasons below, the Tribe believes EPA's reinterpretation would be a 

prudent and timely decision that is supported by the plain language of the CW A 

and caselaw, and reinforces water quality protection for the Nez Perce Tribe and 
Fred Leutner 

July 7, 2014 

Page 2 

other tribes through water q11ality standards that are appropriate to protect the 

health and needs of our communities residing on the reservation. 

Background 

The Nez Perce Tribe is a federally-recognized Indian tribe with approximately 

3,500 members. In 1855 the Nez Perce Tribe negotiated a treaty with the United 

States in which the Tribe reserved, and the United secured, a permanent homeland 

for the Tribe, as well as off-reservation fishing, hunting, gathering and pasturing 

rights. Treaty with the Nez Perces, 12 Stat. 957 (June 11, 1855). The United 

States and the Nez Perce Tribe retain jurisdiction within the present-day 1863 Nez 

Perce Reservation. 

Water is an integral component ofNez Perce Tribal subsistence, social, cultural, 

spiritual and economic life. Water quality in particular is a critical natural resource 

for the Tribe because members rely on clean water for drinking, irrigation, and for 

the exercise of treaty-reserved fishing, hunting, gathering and pasturing rights. 

Overall water quality on the Nez Perce Reservation is not currently maintained at a 

level that meets Tribal expectations and needs. Water pollution from agricultural, 

silvicultural, urban, residential, and municipal activities negatively affect treatyreserved resources, such as fish and wildlife, as well as the habitat on which those 

resources depend; and also impacts unique Tribal cultural and ceremonial activities 

that Tribal members have engaged in since time immemorial. 

Recognizing water's critical role in Tribal history and lifeways, the Tribe created 

the Water Resources Department (WRD) whose mission is to "manage, protect, 

develop and restore the Tribe's surface and ground water resources and watershed 

environments in the treaty-reserved homeland, for the benefit, health, culture and 

welfare of the tribal public." The WRD is composed of scientists, policy analysts, 

and other water resource specialists who collectively manage a number of on and 

off-reservation water quality activities. 

Reinterpreting the CWA TAS provisions as a Congressional Delegation of 

Authority to Tribes is Correct 

The Tribe fully supports EPA's reinterpretation of the of section 518( e) as a 

delegation by Congress of authority to eligible tribes - rather than needing to 

demonstrate inherent authority - to administer Clean Water Act regulatory 
Fred Leutner 

July 7, 2014 

Page 3 

programs on the Reservation. First, congressional delegation is consistent with the 

plain language ofthe Clean Water Act. Section 518(h) specifically defines a 

"federal Indian reservation" to mean "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 through the reservation." 

Section 518( e )(2) further supports a broad congressional delegation of authority 

over all lands within the reservation by stating that "the functions to be exercised 

by the Indian tribe pertain to the management and protection of water resources 

which "are held by an Indian tribe; held by the United States in trust for Indians; 

held by a member of an Indian tribe is such property interest is subject to a trust 

restriction on alienation; or othwerwise within the borders of an Indian 

reservation." (emphasis added). 

Second, the reinterpretation is consistent with the United States Supreme Court's 

holding in Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation. 

In Brendale, the Court specifically referenced section 518 of the CW A as an 

example of Congress expressly granting authority for environmental regulation 

over all lands within a reservation to Tribes. 492 U.S. 408, 428 (1989). In the 

Tribe's view, the CWA's plain language and the Supreme Court's interpretation of 

section 518 as a delegation of authority to tribes is similar to EPA's approach in 

interpreting and implementing the T AS provisions of the Clean Air Act. 

Third, clarifying and simplifying the process of obtaining CW A authority is 

consistent with the GAO's 2005 report, EPA Should Reduce the Review Time for 

Tribal Requests to Manage Environmental Programs. In that report the GAO 

recognized the significant time and effort required by Tribes seeking federal 

program authority from EPA and recommended measures "to better facilitate the 

timely review of tribal requests for TAS status." Despite EPA subsequently 

adopting internal measures to facilitate such reviews, EPA has made no significant 

progress in assisting tribes with establishing TAS authority on reservations. 

Finally, the Tribe believes that reinterpreting the CW A as a congressional 

delegation of authority similar to the CAA will result in better environmental 

compliance on reservation that benefit the Tribal and non-Tribal communities 

alike. The Tribe administers EPA's CAA Federal Air Rules for Reservations on 

the Nez Perce Reservation through a delegation of authority from EPA in 2005; 

this program has been beneficial to both Tribal and non-Tribal communities on the 
Fred Leutner 

July 7, 2014 

Page4 

Reservation, has received national awards, and has served as a model for the state 

as it revised its air quality rules; 

We look forward to consulting with EPA as this reinterpretation proceeds forward. 

Sincerely, 

-~ce::-5w~ Silas C. Whitman 

Chairman