# TRIBAL EXECUTIVE COMMITTEE P.O. BOX 305 • LAPWAI, IDAHO 83540 • (208) 843-2253 July 7, 2014 Fred Leutner Office ofScience and Technology (Mail Code 4305T) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW

. Washington, DC 20460

ByElectronic Mail: TASreinterpretation@epa.gov 

### Re: Nez Perce Tribe's comments on Potential Reinterpretation ofClean Water Act Provisions Regarding Tribal Eligibility to Administer Regulatory Programs
DearMr. Leutner:
I write on behalfofthe NezPerce Tribe expressing our strong support for EPA's determination to potentiallyreinterpretthe Clean WaterAct (CWA) provisions regarding treatment oftribes in a manner similarto 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 WaterActregulatory programs over their entire reservations. This reinterpretation would replace EPA's current interpretation that applicant tribes need to demonstrate their inherent regulatory authority. All othertribal eligibilityrequirements established inthe Act and EPA's regulations would remain in place. Forthe reasons below, the Tribebelieves EPA's reinterpretation would be a prudent and timely decision that is supportedbythe plain language ofthe CW A and caselaw, and reinforces water quality protection for the NezPerce Tribe andFredLeutner July 7, 2014 Page 2 othertribes through water q11ality standards that are appropriate to protectthe health and needs ofour communities residing onthe reservation. Background The Nez Perce Tribe is a federally-recognized Indian tribe with approximately 3,500 members. In 1855 the NezPerce Tribe negotiated a treaty with the United States in which the Tribe reserved, andthe United secured, a permanenthomeland 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 retainjurisdictionwithin the present-day 1863 Nez Perce Reservation.
Water is an integral component ofNezPerce Tribal subsistence, social, cultural, spiritual and economic life. Water quality in particularis a critical natural resource for the Tribe because members rely on clean water for drinking, irrigation, and for the exercise oftreaty-reserved fishing, hunting, gathering andpasturingrights. Overall water quality onthe Nez Perce Reservation is not currently maintained at a level that meets Tribal expectations and needs. Waterpollution from agricultural, silvicultural, urban, residential, and municipal activities negatively affecttreatyreserved resources, such as fish and wildlife, as well as the habitat onwhich 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 ofthe tribal public." The WRD is composed ofscientists, policy analysts, and other water resource specialists who collectively manage a number ofon and off-reservation water quality activities. Reinterpreting the CWATAS provisions as a Congressional Delegation of Authority to Tribes is Correct The Tribe fully supports EPA'sreinterpretation ofthe ofsection 518(e) as a delegation by Congress ofauthority to eligible tribes

- rather than needing to demonstrate inherent authority

- to administer Clean WaterActregulatoryFred Leutner July 7, 2014 Page 3
programs onthe 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 ofany Indian reservation under thejurisdiction ofthe United States government, notwithstanding the issuance ofany patent, and including rights-of-way through the reservation." Section 518(e)(2) further supports a broad congressional delegation ofauthority over all lands within the reservation by stating that "the functions to be exercised by the Indiantribe pertain to the management and protection ofwater resources which "are held by an Indiantribe; held by the United States intrust for Indians; heldby a member ofan Indian tribe is such property interest is subject to a trust restriction on alienation; or othwerwise within the borders of anIndian reservation." (emphasis added). Second, the reinterpretation is consistentwith the United States Supreme Court's holding in Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation. InBrendale, the Court specifically referenced section 518 ofthe CW A as an example ofCongress expressly granting authority for environmental regulation over all lands within a reservation to Tribes. 492 U.S. 408, 428 (1989). Inthe Tribe's view, the CWA'splain language and the Supreme Court's interpretation of section 518 as a delegation ofauthority to tribes is similar to EPA's approach in interpreting and implementing the TAS provisions ofthe Clean Air Act. Third, clarifying and simplifying the process ofobtaining 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 oftribal 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 onreservations. Finally, the Tribe believes that reinterpreting the CW A as a congressional delegation ofauthority 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 ofauthority from EPA in 2005; this program has been beneficial to both Tribal and non-Tribal communities on theFredLeutner July 7, 2014 Page4 Reservation, has received national awards, andhas served as a model for the state as itrevised its air qualityrules;
We look forward to consulting with EPA as this reinterpretation proceeds forward. Sincerely,

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