a

GAO

United States Government Accountability Office

Report to Congressional Requesters

October 2005 INDIAN TRIBES

EPA Should Reduce 

the Review Time for 

Tribal Requests to 

Manage 

Environmental 

Programs

GAO-06-95
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

www.gao.gov/cgi-bin/getrpt?GAO-06-95.

To view the full product, including the scope 

and methodology, click on the link above. 

For more information, contact John B. 

Stephenson at (202) 512-3841 or 

stephensonj@gao.gov. 

Highlights of GAO-06-95, a report to 

congressional requesters 

October 2005

INDIAN TRIBES

EPA Should Reduce the Review Time for 

Tribal Requests to Manage Environmental 

Programs 

EPA generally followed its established processes for reviewing and 

approving tribal requests for TAS and program authority under the three 

acts, according to GAO’s analysis of approved requests. However, the 

review time for approving these requests generally took from about 1 year to 

more than 4 years. In addition, nearly all of the requests currently under 

review were submitted more than 1 year ago. Key factors contributing to the 

lengthy reviews include the multiple reviews required by the agency’s 

regional and headquarters offices, a lack of emphasis within the agency to 

complete the reviews in a timely manner, and turnover of tribal and EPA 

staff. Moreover, EPA has not developed a written strategy that establishes 

overall time frames for reviewing requests. EPA officials agreed that more 

could be done to improve the timeliness of the review process but said that 

complex issues—including evolving Indian case law and jurisdictional 

issues—may have contributed to the lengthy reviews. Furthermore, EPA’s 

review process is not always transparent on the status of tribes’ TAS 

requests. Lack of transparency limits tribes’ understanding of what issues 

may be delaying EPA’s approval and what actions, if any, may be needed to 

address the issues. 

EPA provided Indian tribes about $360 million in grants to fund a broad 

range of tribal environmental activities from fiscal years 2002 through 2004. 

About half of these funds were distributed through two acts: the Indian 

Environmental General Assistance Program Act (about $114 million)—to 

help build capacity to administer environmental programs—and the Clean 

Water Act (about $66 million)—to help prevent and reduce water pollution. 

Since 1986, when Congress began amending the three environmental acts to 

allow TAS for tribes, disagreements over land boundaries and environmental 

standards have arisen between tribes, states, and others. Disagreements 

have been addressed through litigation, collaboration, and federal laws. 

States Where Tribes Are Approved for Program Authority, as of June 2005 

The Clean Water, Safe Drinking 

Water, and Clean Air Acts authorize 

the Environmental Protection 

Agency (EPA) to treat eligible 

Indian tribes in the same manner as 

a state (referred to as TAS) for 

implementing and managing 

environmental programs on Indian 

lands. Some states are concerned 

that tribes receiving authority to 

manage these programs may set 

standards that exceed the state 

standards and hinder states’ 

economic development. GAO was 

asked to report on the (1) extent to 

which EPA has followed its 

processes for reviewing and 

approving tribal applications for 

TAS and program authorization 

under the three acts, (2) programs 

EPA uses to fund tribal 

environmental activities and the 

amount of funds provided to tribes 

between fiscal years 2002 and 2004, 

and (3) types of disagreements 

between parties over EPA’s 

approval of TAS status and 

program authorization and 

methods used to address these 

disagreements. 

What GAO Recommends

GAO recommends EPA develop a 

written strategy, including 

estimated time frames, for 

reviewing tribes’ TAS applications 

for program authority and updating 

the tribes on the review status. In 

commenting on a draft of this 

report, EPA agreed with GAO’s 

findings and emphasized its 

commitment to addressing the 

issues raised in the report. 
Page i GAO-06-95 Indian Tribes

Contents

Letter 1

Results in Brief 5

Background 7

EPA’s Approval Process for TAS and Program Authorization Was 

Generally Followed, but Some TAS Approvals Were Delayed by 

Lengthy Reviews 12

EPA Provides a Variety of Grants to Help Tribes Manage Their 

Environmental Programs 21

Differences between Tribes and States over Environmental Issues 

Have Been Addressed in Various Ways 24

Conclusion 27

Recommendation for Executive Action 28

Agency Comments 28

Appendixes

Appendix I: Objectives, Scope, and Methodology 30

Appendix II: Tribal Entities and Dates Requests Were Submitted and 

Approved for TAS, as of June 2005 33

Appendix III: TAS Requests under Review, as of June 2005 35

Appendix IV: Elapsed Time for EPA’s Approval of Tribes’ Water Quality 

Standards for 18 Clean Water Act Cases Reviewed 37

Appendix V: Comments from the Environmental Protection Agency 38

Appendix VI: GAO Contact and Staff Acknowledgments 39

Table Table 1: Grant Dollars Provided to Tribes under Four EPA Acts for 

Fiscal Years 2002 through 2004 23

Figures Figure 1: States Where Tribes Have Submitted and Been Approved 

for TAS under the Three Environmental Acts, as of June 

2005 10

Figure 2: Review Times for the 32 Requests Approved for TAS, 

1991-2005 15

Figure 3: Review Time for TAS Requests under Review, 1994-June 

2005 16

Figure 4: Number of TAS Requests Submitted and under Review, 

1992-June 2005 17
Contents

Page ii GAO-06-95 Indian Tribes

Figure 5: Elapsed Time for EPA’s Approval of Tribes’ Water Quality 

Standards for 18 Clean Water Act Cases Reviewed 21

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Page 1 GAO-06-95 Indian Tribes

United States Government Accountability Office

Washington, D.C. 20548

A

October 31, 2005 Letr

The Honorable James M. Inhofe

Chairman, Committee on Environment

and Public Works

United States Senate

The Honorable John McCain

Chairman, Committee on Indian Affairs

United States Senate

The Clean Water Act, Safe Drinking Water Act, and Clean Air Act authorize 

the Environmental Protection Agency (EPA) to treat Indian tribes in the 

same manner as it does states,1

 referred to as TAS,2 for the purposes of 

implementing these laws on tribal lands. Recent lawsuits and 

disagreements between parties over EPA’s approval of tribes’ TAS status 

and authority to implement and enforce a given environmental program 

(program authority) highlight the sensitivities associated with TAS 

approval. On the one hand, tribes want to be treated as states and assume 

program responsibilities to protect their environmental resources because 

they are sovereign governments and have specific knowledge of their 

environmental needs.3

 Tribes also generally believe that TAS status and 

program authority are important steps in addressing the potential impacts 

of economic development affecting their land. On the other hand, in some 

cases, states are concerned that tribes with program authority may impose 

standards that are more stringent than the state’s, resulting in a patchwork 

of standards within the state and potentially hindering the state’s economic 

development plans. In addition, conflicts sometimes arise between states 

and tribes over the extent of tribal jurisdiction in cases where Indian lands 

are no longer located within formal reservations or in cases in which 

nontribe members live within reservation areas. 

1

Under these laws, EPA may authorize states to establish their own standards and carry out 

a state program in lieu of the federal program. State standards must meet or exceed federal 

requirements. 

2

The acts generally use the term “treat as states.” EPA and most Indian tribes prefer to use 

the term “treatment in the same manner as a state.”

3

As sovereign governments, Indian tribes have inherent authority to establish tribal 

environmental programs under their own laws. However, to administer federal 

environmental programs on their land, tribes must obtain approval from EPA.
Page 2 GAO-06-95 Indian Tribes

EPA’s Indian policy, established in 1984, states, among other things, that 

EPA “will take affirmative steps to encourage and assist tribes in assuming 

regulatory and program management responsibilities...within the 

constraints of its authority and resources.” As such, EPA offers several 

financial assistance programs to tribes.4

 For example, the Indian General 

Assistance Program, established under the Indian Environmental General 

Assistance Program Act of 1992, supports tribes’ efforts to develop their 

capability to implement environmental programs. In addition, grants under 

the Clean Water, Safe Drinking Water, and Clean Air Acts help tribes to 

develop water quality programs, create drinking water protection 

programs, and plan and manage air quality activities. Some of these grants 

require TAS status, others do not. 

To be approved for TAS, which is a prerequisite for obtaining program 

authority under the three environmental acts, a tribe must demonstrate its 

eligibility by showing that it (1) is officially recognized by the Secretary of 

the Interior, (2) has a governing body that is currently carrying out 

substantial governmental duties and powers over a defined area, (3) has 

jurisdiction over the land where the resources are located,5

 and (4) is 

capable of administering the program. Once EPA receives a tribe’s 

application for TAS, it has 30 days to notify appropriate governmental 

entities of the tribe’s request. 

After EPA approves a tribe’s TAS request, the tribe needs to obtain EPA 

authorization to implement and enforce a given program. EPA generally 

recommends that tribes adopt the standards of the adjacent states when 

first setting tribal standards. However, EPA does not track the extent to 

which tribes adopt adjacent state standards. Under its regulations for 

implementing the Clean Water Act, EPA requires a tribe to hold a public 

hearing so that interested parties can review and comment on the tribe’s 

4

EPA also provides financial assistance to other entities such as state and local 

governments, educational institutions, and not-for-profit organizations.

5

The specific language pertaining to jurisdiction under the Clean Water Act states 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...or otherwise within the borders of an 

Indian reservation.” 33 U.S.C. § 1377(e)(2). The specific language pertaining to jurisdiction 

under the Safe Drinking Water Act states that “the functions to be exercised by the Indian 

Tribe are within the area of the Tribal government's jurisdiction.” 42 U.S.C. § 300j11(b)(1)(B). The specific language pertaining to jurisdiction under the Clean Air Act states 

that “the functions to be exercised by the Indian tribe pertain to the management and 

protection of air resources within the exterior boundaries of the reservation or other areas 

within the tribe’s jurisdiction.” 42 U.S.C. §7601(d)(2)(B).
Page 3 GAO-06-95 Indian Tribes

proposed water quality standards before EPA approves them.6 EPA’s 

regulations under the Safe Drinking Water Act require the agency to 

announce in the Federal Register that the tribe has the authority to 

administer a program and allow 30 days to request a public hearing. Under 

its regulations for implementing the Clean Air Act’s operating permits 

program,7

 EPA must also announce its approval for a tribe to administer a 

program in the Federal Register; however, the notice is not subject to 

public comment. 

There are 562 federally recognized tribes.8

 Fifty-seven tribal entities have 

requested TAS in order to obtain program authority under at least one of 

the three acts, and some for multiple programs, for a total of 61 requests.9

 

EPA has approved 32 of these requests and is still reviewing 29. Thirty of 

the approved TAS requests were to implement a clean water program, 1 

was for a safe drinking water program, and 1 was for a clean air program. 

For 26 of the 32 approved TAS requests, tribes have also received EPA 

approval of water quality standards, or authorization to administer public 

water systems or issue and enforce federal air permits.

You asked us to report on the (1) extent to which EPA has followed its 

processes for reviewing and approving tribal requests for treatment as a 

state and program authorization under the Clean Water, the Safe Drinking 

Water, and the Clean Air Acts; (2) programs EPA uses to fund tribal 

environmental activities and the amount of funding it has provided to tribes 

between fiscal years 2002 and 2004; and (3) types of disagreements that 

have occurred between parties over EPA’s approval of tribes’ TAS status 

6

The regulations discussed in this paragraph also apply to states. 

7

For the purposes of our report, we only looked at TAS requests for Part 71—operating 

permits under the Clean Air Act. Indian tribes have also been approved for treatment as an 

affected state under title V of the Clean Air Act, which allows them to review and comment 

on permits issued by neighboring states to facilities having the potential to impact tribal 

lands. 

8

68 Fed. Reg. 68180 (Dec. 5, 2003). 

9

Tribal entities may include tribes as well as bands or Indian communities within a tribe. For 

example, the Chippewa tribe in Minnesota includes the Grand Portage Band, the Fond du 

Lac Band, the Bois Forte Band, the Mille Lacs Band, the Leech Lake Band, and the White 

Earth Band. For purposes of this report, we refer to these entities as tribes. The tribes 

referred to in these analyses are tribes that have submitted TAS applications for program 

authority. The analyses do not include tribes that have requested TAS status to secure 

certain grants.
Page 4 GAO-06-95 Indian Tribes

and program authorization and the methods that have been used to address 

these disagreements. 

To address these issues, we met with selected officials from EPA and the 

Department of the Interior’s Bureau of Indian Affairs in Washington, D.C., 

and three EPA regions—in Region 6 (Dallas), Region 9 (San Francisco), and 

Region 10 (Seattle). We chose these regions because they had the largest 

number of approvals for program authority—18 approvals under the Clean 

Water Act, and 1 each under the Safe Drinking Water and Clean Air Acts. 

We reviewed a total of 20 case files in detail in these three regions—

accounting for 77 percent of all approved tribal requests (20 of 26) for 

program authorization under the three acts—to determine whether EPA 

had followed established TAS and program authorization processes. Our 

case file review included, among other things, an assessment of whether 

EPA met its requirements to notify appropriate governmental entities of a 

tribe’s request within 30 days of receipt.10 We also reviewed data provided 

by EPA on another 12 TAS and/or program authority approvals, bringing 

the total number of TAS approvals reviewed to 32. We focused primarily on 

the Clean Water Act because most activity has occurred under the act. 

However, we also reviewed EPA’s process for reviewing and approving 

tribal requests under the Safe Drinking Water and Clean Air Acts. In 

addition, we met with state officials and representatives of Indian tribes in 

Arizona, New Mexico, Oklahoma, and Washington. To address the second 

objective, we analyzed EPA’s Integrated Grants Management System grants 

data for tribes that have received financial assistance for environmental 

programs for fiscal years 2002 through 2004.11 We assessed the reliability of 

EPA’s grants data system and found it sufficiently reliable for the purposes 

of our report. Finally, we interviewed selected EPA, state, and tribal 

officials to discuss the methods used to address issues associated with 

areas of possible disagreements, such as jurisdictional boundaries, that 

interested parties may raise. A more detailed description of our scope and 

methodology is presented in appendix I. We performed our work between 

November 2004 and October 2005, in accordance with generally accepted 

government auditing standards. 

10See 40 C.F.R. §131.8 for the Clean Water Act and 40 C.F.R. §49.9 for the Clean Air Act.

11We obtained the data from EPA’s Integrated Grants Management System, a computer 

database used by the agency to manage and report on information about grants.
Page 5 GAO-06-95 Indian Tribes

Results in Brief EPA followed its processes in most respects for approving tribal requests 

for TAS status and program authorization for the 20 cases we reviewed, but 

we found some lengthy delays in these processes. Specifically, for these 20 

cases, EPA verified that the tribe is federally recognized, has authority 

within its tribal boundaries, and is technically capable of carrying out the 

requested environmental program. However, in 17 of the 20 cases, EPA did 

not notify affected governmental entities within its established 30 day time 

frame of a tribe’s TAS request, but instead took about 5 months, on average. 

Moreover, EPA has not established overall time frames for reviewing 

requests, and for the 20 cases, 10 took more than 1 year for approval and 2 

took more than 4 years. Furthermore, the lack of transparency of EPA’s 

review process may hinder a tribe’s understanding of the status of its 

request and what actions, if any, may be needed. Multiple reviews, a lack of 

emphasis within EPA about the timeliness of the TAS review, and turnover 

in EPA and tribal staffs contributed to delays in the approval process. EPA 

officials agreed that more could be done to improve the timeliness of its 

review process and stated that several complex issues, including evolving 

Indian case law and jurisdictional issues, contributed to the length of some 

reviews. Delays in the approval process may hinder a tribe’s efforts to 

control its environmental resources. Tribal officials in one state told us that 

they have not submitted a TAS request because of EPA’s lengthy review 

process. EPA has recently begun working with its regions to update the 

status of pending TAS requests and to address how best to expedite 

reviews. To improve EPA’s process for reviewing tribal requests for TAS for 

program authorization, we are recommending that the Administrator of 

EPA develop a written strategy with estimated time frames for reviewing 

and approving tribal requests for TAS for program authorization under the 

three acts and periodically provide status reports to affected tribes.

For fiscal years 2002 through 2004, EPA provided Indian tribes about $360 

million in grants to fund a broad range of environmental activities. Half of 

the funds were distributed through two specific programs: (1) the Indian 

General Assistance Program to help tribes build capacity to administer 

environmental programs, including planning, developing, and establishing 

environmental protection programs—approximately $114 million and (2) 

the Clean Water Act to help tribes prevent, reduce, and eliminate water 

pollution—approximately $66 million. In addition, EPA provided funds 

through a variety of other programs, including the Safe Drinking Water Act, 

the Clean Air Act, the Toxic Substances Control Act, and the 

Comprehensive Environmental Response, Compensation, and Liability Act. 
Page 6 GAO-06-95 Indian Tribes

Nearly all tribal requests for grants are reviewed and funded at the regional 

level. 

Since 1986, when Congress amended the first of the three environmental 

laws to allow TAS status for tribes, a number of disagreements between 

tribes, states, and municipalities have arisen, concerning land boundaries, 

environmental standards, and other issues. The disagreements have been 

addressed in various ways, including litigation, collaborative efforts, and 

changes to federal laws. In terms of litigation, for example, in City of 

Albuquerque v. Browner,12 the city challenged EPA's approval of the 

Pueblo of Isleta tribe’s water quality standards, which are more stringent 

than those of New Mexico, where the Pueblo of Isleta tribe is located, but 

EPA’s approval was upheld. In other situations, some tribes and states have 

addressed issues more collaboratively. For example, the Navajo Nation and 

the Arizona Department of Environmental Quality entered into a 

cooperative agreement that, among other things, recognizes the 

jurisdiction of the Navajo Nation’s lands within its reservation and 

establishes a plan to share the cost of pilot projects. In some cases, EPA 

facilitates resolution of disagreements between states and tribes during the 

review process. Regarding federal legislation, a federal statute enacted in 

August 2005, requires Indian tribes in Oklahoma to enter into a cooperative 

agreement with the state before EPA can approve a tribe’s TAS request.13 

Currently, the Pawnee Nation is the only Oklahoma tribe that has been 

awarded TAS status to set its own water quality standards. In addition, EPA 

has established a dispute resolution mechanism under the Clean Water Act 

to address disagreements between tribes and states but no parties have yet 

used this mechanism to address such disagreements.

We provided EPA with a draft of this report for its review and comment. In 

commenting on the draft report, EPA agreed with our findings and stated 

that it was currently engaged in addressing many of the issues we raised. 

EPA also provided technical comments, which we have incorporated into 

this report as appropriate. Appendix V contains the full text of the agency’s 

comments.

1297 F.3d 415 (10th Cir. 1996), cert. denied, 522 U.S. 965 (1997).

13Pub. L. No. 109-59, § 10211 (2005). 
Page 7 GAO-06-95 Indian Tribes

Background The Clean Water, Safe Drinking Water, and Clean Air Acts emphasize the 

importance of state involvement in protecting the environment and public 

health and allow EPA to authorize states to implement their own programs 

in lieu of the federal program—referred to as program authorization. From 

1986 to 1990, Congress amended these three acts to authorize EPA to treat 

Indian tribes in the same manner as states for purposes of program 

authorization. 

Under EPA’s implementation of the Clean Water Act, a tribe may submit a 

request to EPA for TAS status and then submit a request for approval of its 

adopted water quality standards, or submit both the TAS request and the 

water quality standards approval request at the same time. Section 518 of 

the Clean Water Act lists the eligibility criteria EPA will use to approve TAS 

status and to authorize Indian tribes to administer Clean Water Act 

programs. 

In applying for TAS under the Clean Water Act, a tribe, among other things, 

submits a descriptive statement that includes a map or legal description of 

the area over which the tribe intends to assert jurisdiction. For purposes of 

this discussion, Indian lands can be separated into three general categories: 

(1) lands within the exterior boundaries of a formal reservation, (2) tribal 

trust lands lying outside formal reservation boundaries, and (3) individual 

allotments lying outside reservation boundaries.14 EPA considers lands 

within the boundaries of a formal reservation and tribal trust lands lying 

outside of formal boundaries to be reservations for purposes of section 518 

of the Clean Water Act. For the third category—individual allotments—

EPA has not historically considered the Clean Water Act to cover 

allotments outside of reservations. 

EPA follows similar processes for TAS under the Clean Water, Safe 

Drinking Water, and Clean Air Acts. EPA’s approval process for tribal 

requests for TAS begins in its regional offices, where officials verify that the 

requests meet eligibility requirements. EPA also requires its headquarters 

staff to review the first TAS request received and approved in each region

14Allotments are parcels of land held in trust by the United States for the benefit of 

individual Indians. 
Page 8 GAO-06-95 Indian Tribes

under the Clean Water and Safe Drinking Water Acts15 and to review all 

other TAS requests, that appear to be nationally significant because, for 

example, of new legal issues. Where practical, regional and headquarters 

reviews are conducted concurrently, according to EPA officials. Except for 

specific tasks, such as the 30-day public comment period, EPA has not 

established time frames or goals for the length of its review process. 

In addition to relevant statutory and regulatory guidance, EPA may refer to 

federal case law concerning Indian tribes when reviewing a tribe’s TAS 

request, which we refer to as Indian case law in this report. For example, 

EPA uses Indian case law to determine whether a tribe has the authority to 

regulate an activity on land owned by nonmembers but located within a 

reservation. In particular, in 1981, the Supreme Court held that, as a general 

rule, absent delegation by federal statute or treaty, Indian tribes lack 

authority to regulate the conduct of nonmembers on non-Indian land within 

reservation boundaries, except when (1) nonmembers enter into a 

consensual relationship with the tribe or (2) activities by nonmembers on 

lands within the reservation threaten or have a direct effect on the political 

integrity, economic security, or health or welfare of the tribe. This ruling is 

known as the Montana test.16 

With respect to program authorization, EPA’s review process is generally 

the same for tribes and states. Specifically:

• For the Clean Water Act, EPA determines, for example, whether the (1) 

water uses are consistent with the requirements of the act, (2) adopted 

criteria protect the designated water uses, and (3) appropriate technical 

and scientific data and analyses have been used. The Clean Water Act 

allows states and tribes to establish water quality standards that are 

more stringent than federal requirements. 

• Under the Safe Drinking Water Act, EPA requires states and tribes to 

demonstrate the capability to administer primary enforcement 

15According to EPA officials, the agency has no similar requirement for TAS applications 

under the Clean Air Act, although they are reviewed in headquarters for national 

significance. 

16Montana v. United States, 450 U.S. 544 (1981). Other Supreme Court cases concerning 

tribal authority include Brendale v. Confederated Tribes and Bands of the Yakima Nation, 

492 U.S. 408 (1989), Nevada v. Hicks, 533 U.S. 353 (2001), and Atkinson Trading Company, 

Inc. v. Shirley, 532 U.S. 645 (2001).
Page 9 GAO-06-95 Indian Tribes

responsibility in a number of key areas. Among other things, EPA 

determines whether the state or tribe has (1) adopted drinking water 

regulations that meet or exceed EPA’s national primary drinking water 

regulations; (2) adopted and is implementing adequate procedures for 

enforcing its regulations, including demonstrating authority to assess 

penalties for violations; and (3) adopted and can implement an adequate 

plan to provide safe drinking water under emergency circumstances, 

such as hurricanes and other natural disasters. 

• Under the Clean Air Act, EPA can authorize states and tribes to issue 

and enforce federal air permits. For this authority, the tribe must, among 

other things, submit a legal opinion, stating that the laws of the Indian 

tribe provide adequate authority to carry out all aspects of the delegated 

program. EPA and the eligible tribe then sign a Delegation of Authority 

Agreement, which specifies the provisions that the tribe is authorized to 

implement on behalf of EPA. EPA is responsible for announcing this 

delegation in the Federal Register.

Since 1988, 57 of the 562 federally recognized tribal entities in the United 

States have submitted 61 requests seeking TAS for program authority under 

the three acts;17 these entities are from 17 states. Of the 61 TAS requests, 

EPA has approved 32: 30 under the Clean Water Act, 1 under the Safe 

Drinking Water Act, and 1 under the Clean Air Act. The remainder are 

under review. Of the 32 approved TAS requests, 26 have also been approved 

for program authority—24 for Clean Water, 1 for Safe Drinking Water, and 1 

for Clean Air.18 Figure 1 shows the states where tribes have submitted and 

been approved for TAS status under the three environmental acts, the 

number of TAS submittals, and the number of TAS approvals in each state. 

17Of the 57 tribal entities, 1 has submitted applications under two of the acts (Clean Water

and Safe Drinking Water) and 1 has submitted four applications under the three acts.

18Technically, the term “program authorization” does not apply to the water quality

standards program under the Clean Water Act; rather EPA approves the tribe’s water quality 

standards. However, for the purposes of our report, we are using the term to represent 

program authority under the three acts.
Page 10 GAO-06-95 Indian Tribes

Figure 1: States Where Tribes Have Submitted and Been Approved for TAS under the Three Environmental Acts, as of June 2005

OR

NV

ID

MT

AZ NM

CO

ND

NE

OK

MN

WI

FL

MI

CA

WA

NY

Source: GAO presentation based on EPA data.

TAS requests submitted by tribes (total 61)

TAS requests approved by EPA as of June 2005 (total 32)

Number of TAS requests

States

0

2

4

6

8

10

12

AZ CA CO FL ID MI MN MT ND NE NM NV NY OK OR WA WI

11

10

9 9

7

4 4

11 1 1 1 1 1 1 1 1 1

0 0 00 0 0

2

6

5

2 2 2 2 22

3
Page 11 GAO-06-95 Indian Tribes

EPA relies on grants as one of its primary ways to carry out its mission of 

protecting human health and safeguarding the environment. Each fiscal 

year, EPA awards approximately $4 billion in grants to state and local 

governments, tribes, educational, nonprofit organizations, and other 

entities for projects that range from conducting environmental research to 

constructing wastewater treatment facilities to developing regulatory 

programs. The funds are generally based on formulas laid out under each 

law or regulation. To be eligible for most EPA grant programs, a tribe must 

be federally recognized.19 In addition, for some grant programs, such as 

section 106—for the prevention, reduction, and elimination of water 

pollution--under the Clean Water Act, a tribe must also have obtained TAS 

status to be eligible. For other grants, such as section 105—to develop and 

administer programs that prevent and control air pollution or implement 

national air quality standards--under the Clean Air Act, a tribe is not 

required to have TAS status, but TAS status has a substantially lower 

matching contribution requirement (from 5 percent with TAS status to 40 

percent without). The grants’ TAS criteria are less demanding and thus the 

review process is less rigorous than the review process for TAS for 

program authority. In addition, the grant decision is based solely on EPA’s 

expertise, and EPA does not generally get public comments on whether the 

tribe has jurisdiction.20 Approval for TAS for grant purposes does not 

qualify tribes for TAS for program authority purposes; however, tribes may 

use their TAS grant status to help demonstrate capability to administer a 

program when applying for program authority TAS. Finally, for other grant 

programs, such as the Indian General Assistance Program, no TAS 

requirement exists. 

Financial assistance for tribal environmental programs is funded under 

EPA’s State and Tribal Assistance Grants appropriation. The funds are 

generally based on specific formulas laid out in law or regulation, and 

regions that have the largest number of tribes receive the largest 

proportion of grant awards and grant dollars. The five states receiving the 

most tribal grants—Alaska, Arizona, California, New Mexico, and 

19Specifically, grants under the Clean Water, Safe Drinking Water, Clean Air, and Indian 

Environmental General Assistance Program Acts require federal recognition. Tribes that are 

not federally recognized may receive grants through other programs. 

20Specifically, EPA does not obtain public comments on grants under the Clean Water or 

Safe Drinking Water Acts. However, for TAS determinations under the Clean Air Act, EPA 

seeks comments from appropriate governmental entities on the tribe’s reservation 

boundaries or jurisdictional claims.
Page 12 GAO-06-95 Indian Tribes

Oklahoma—are located in EPA’s Regions 6, 9, and 10. Of the 1,343 grants 

awarded to Indian tribes under the Clean Water, Safe Drinking Water, Clean 

Air, and Indian General Assistance Program Acts between fiscal years 2002 

through 2004, about 99 percent were awarded by EPA’s regions. 

Each grant program has its own request and award process and grant 

opportunities are based on funding availability. As a result, a tribe may 

receive a grant in one year and not in another. While funding of tribal grants 

has remained relatively constant, according to EPA officials, the agency’s 

outreach to tribes and the growing awareness of environmental issues 

among tribes, has led to steadily increasing numbers of requests and grants 

being awarded. 

EPA’s Approval 

Process for TAS and 

Program Authorization 

Was Generally 

Followed, but Some 

TAS Approvals Were 

Delayed by Lengthy 

Reviews

For the 20 cases we examined in detail, EPA followed its processes for 

approving tribal requests for TAS and for program authorization, except for 

adhering to the 30-day time frame for notifying governmental entities. 

However, for these 20 cases, as well as for another 12 tribal requests for 

TAS that EPA approved,21 the TAS review process was often lengthy.22 In 

addition to those 32 TAS approvals, EPA is currently reviewing 29 TAS 

requests, 27 of which were submitted more than a year ago. EPA officials 

agreed that more could be done to improve the timeliness of the review 

process, and the agency has recently begun working with its regions to 

determine the status of outstanding requests and how best to expedite 

reviews. The officials stated that evolving Indian case law and complexities 

associated with some jurisdictional issues sometimes required them to 

spend more time evaluating tribal TAS requests. Delays in the approval 

process may hinder a tribe’s efforts to control its environmental resources. 

Furthermore, as we learned during our review, lengthy delays and a lack of 

transparency in the review process may discourage tribes from even 

submitting requests for TAS status. In terms of tribal requests for approval 

of water quality standards, EPA approved most tribal requests in less than 1 

year but the agency generally did not meet its own standard for approval 

within 60 days. 

21Our analysis of these 12 requests, which we did not review in detail, is based on EPAprovided data.

22According to EPA, 6 of these 12 TAS requests have been approved for program 

authorization. 
Page 13 GAO-06-95 Indian Tribes

EPA Followed Its 

Procedures for Reviewing 

and Approving Tribal 

Requests, except for Timely 

Notification to Affected 

Governmental Entities

According to our review of 20 approved cases in Regions 6, 9, and 10, EPA 

generally followed its established processes for reviewing and approving 

TAS requests. For example, EPA’s files included the required 

documentation to support its decision to approve a TAS request. First, EPA 

always ensured that the tribe included a statement that the tribe is 

recognized by the Secretary of the Interior. 

Second, we found that EPA always ensured that tribes provided a 

statement that their governing body is carrying out substantial 

governmental duties and powers. To meet this requirement, tribes (1) 

described the form of tribal government; (2) described the types of 

governmental functions currently performed by the tribal governing body; 

and (3) identified the source of the tribal government’s authority to carry 

out these governmental functions. Among other things, tribes provided 

tribal constitutions, by-laws, and treaties to demonstrate that they were 

carrying out substantial governmental duties and powers.

Third, the cases we reviewed showed that EPA always ensured that the 

tribe documented its jurisdiction. Specifically, the files showed that EPA 

collected a map or legal description of the area over which the tribe 

intended to regulate—surface water quality, drinking water, or air quality; a 

statement by the tribe’s legal counsel describing the basis for the tribe’s 

assertion of authority; and documentation identifying the resources for 

which the tribe proposed to establish environmental standards. Some cases 

indicated that EPA followed up with a tribe when the request lacked 

adequate documentation to meet this requirement.

Finally, EPA ensured that tribes submitted a narrative statement describing 

their capability to administer the program to which they were applying. For 

example, EPA ensured that tribes submitted a description of

• their previous management experience; 

• existing environmental or public health programs administered by the 

tribal governing body and copies of related tribal laws, policies, and 

regulations; 

• the entity that exercises the executive, legislative, and judicial functions 

of the government; 

• the existing, or proposed, agency that will assume primary 

responsibility for the environmental standards; and 
Page 14 GAO-06-95 Indian Tribes

• the staffs’ technical and administrative capabilities for managing an 

effective program, and a plan for how the tribe will acquire and fund 

additional expertise. 

Additionally, EPA is required to promptly notify the tribe when the agency 

has received the TAS request. In three cases, EPA did not have evidence 

showing that it had notified the tribe that it had received the tribe’s request. 

In these cases, an EPA regional official told us, the agency may have 

telephoned the tribe to acknowledge receipt of the tribe’s request, and this 

information would not necessarily be documented.

The only two time frames EPA has established require the agency to 

provide (1) appropriate notice to affected governmental entities within 30 

days of receipt of a tribe’s request for TAS and (2) interested parties with 30 

days to comment on the tribe’s request.23 For the 20 cases we reviewed, 

EPA always provided affected governmental entities and interested parties 

30 days to comment. However, in 17 of the 20 cases, EPA did not notify 

affected governmental entities within its established 30-day time frame of a 

tribe’s TAS request, but instead took about 5 months, on average.24 EPA 

officials told us that, in most cases, they worked with Indian tribes to 

develop their TAS applications prior to the tribe’s submission of its 

application. However, they said that in some cases, applications were still 

not complete when they were received, resulting in delays in providing 

notification to governmental entities. EPA said it does not like to notify 

affected governmental entities of a tribal request until EPA agrees with the 

tribe that the application is complete. 

EPA’s Process for Approving 

TAS Requests Was Often 

Lengthy and Not Guided by 

Clear Time Frames

Figure 2 shows the review times for the 32 TAS requests approved from 

1991 through June 2005. Appendix II provides additional details on the 32 

tribal entities that were approved for TAS as of June 2005, the dates that the 

requests were submitted, and the date EPA approved them. 

23Although EPA has established a 30-day comment period, the agency has extended this time 

period when requested.

24Under its regulations implementing the Safe Drinking Water Act, EPA is not specifically 

required to obtain comments from governmental entities concerning a tribe’s jurisdiction on 

its TAS request. Thus, EPA did not have to meet the 30-day requirement on the one approved 

application under the Safe Drinking Water Act.
Page 15 GAO-06-95 Indian Tribes

Figure 2: Review Times for the 32 Requests Approved for TAS, 1991-2005

Note: Of the 32 cases, 30 were approved under the Clean Water Act, 1 under the Safe Drinking Water 

Act, and 1 under the Clean Air Act. Of the 32 cases, 26 were approved for program authority.

Review times for the 32 requests ranged from 3 months to nearly 7 years. 

As figure 2 shows, 19 of the TAS reviews took 1 year or more for approval. 

Specifically, for the 20 cases we examined, 10 took more than 1 year for 

approval, with 2 taking more than 4 years. EPA regulations require that the 

agency process TAS requests in a “timely” manner and internal guidance 

issued in 1998 emphasizes the importance of an efficient review process. 

However, EPA has never developed a written strategy that clarifies what it 

means by timeliness, including performance goals, and does not routinely 

track the time it takes to complete its review of these requests.

Reviews for Pending TAS 

Requests Continue to Be 

Lengthy

Figure 3 shows the 29 TAS requests under review as of June 2005 and the 

time elapsed between the request and June 2005. As the figure shows, the 

time required for reviewing these TAS requests is generally taking 1 or 

more years, with 24 of the TAS requests under review for more than 2 years; 

2 of the 24 requests have been under review for over 10 years. See appendix 

III for the details on the dates that requests were submitted.

13

12 24+ months

7

0-12 months

12-24 months

Source: GAO analysis of EPA data.
Page 16 GAO-06-95 Indian Tribes

Figure 3: Review Time for TAS Requests under Review, 1994-June 2005

The number of TAS requests awaiting EPA approval has increased along 

with the average review time. Specifically, as of 1998, 12 requests were 

under review, and by June 2005, this number had increased to 29. In 

addition, the average review time for TAS requests approved as of 1998 was 

12 months and the average review time for TAS requests approved between 

1998 and June 2005 was 28 months. The average review time for the 29 TAS 

requests pending as of June 2005 was about 63 months (or over 5 years). 

Figure 4 shows the number of requests submitted and the number that 

remained under review at the end of each year, from 1992 through June 

2005. 

24 24+ months

3

2

0-12 months

12-24 months

Source: GAO analysis of EPA data.
Page 17 GAO-06-95 Indian Tribes

Figure 4: Number of TAS Requests Submitted and under Review, 1992-June 2005

Note: One TAS request was submitted in 1988. The total number of TAS requests submitted for 

program authority between 1988 and June 2005 was 61.

According to EPA officials, 15 of the 29 TAS requests currently awaiting 

approval require some type of action on the part of the tribe, such as 

providing additional documentation on the tribe’s jurisdiction. The other 14 

requests are awaiting EPA action, such as analysis and discussion with the 

tribe, consideration of comments received, and final regional and 

headquarters review.

Number of TAS requests

Calendar year

Source: GAO analysis of EPA data.

0

5

10

15

20

25

30

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 June-05

6

8

11

6

9

12

17

24

26 26 26

29 29

2

55 5

9

1

3

6

7

4

3

2

6

0

4

Requests under review 

Requests submitted
Page 18 GAO-06-95 Indian Tribes

Several Factors Cited for 

Delays in the TAS Approval 

Process 

According to EPA officials, several factors contribute to lengthy TAS 

reviews. First, both regional offices and headquarters often review the 

requests. Regional offices have primary responsibility for reviewing and 

approving TAS requests, but EPA headquarters may repeat the review to 

ensure that the regional review fully addressed all legal requirements. EPA’s 

policy is for headquarters to review the first TAS request received and 

approved in each region under the Clean Water and Safe Drinking Water 

Acts25 and to review all other TAS requests, that appear to be nationally 

significant because, for example, of new legal issues. In this regard, 

officials cited evolving Indian case law and complexities associated with 

some jurisdictional issues as significant contributing factors to added 

review time. In some cases, EPA officials explained, multiple reviews occur 

because, for example, a tribe may assert jurisdiction over lands outside of 

its recognized boundaries. These assertions have led to disagreements 

among the states and tribes, contributing to delays in EPA’s review process. 

Moreover, EPA has never disapproved a tribe’s TAS request. Rather than 

disapprove a tribe’s request, EPA continues working with the tribe until it 

meets all the eligibility requirements, which could contribute to delays. 

EPA officials explained that to the extent possible, it conducts its regional 

and headquarters reviews concurrently. 

Second, EPA did not emphasize timely review of TAS requests for some of 

the 20 cases we reviewed. For example: 

• In one case, 20 months after receiving a tribe’s TAS request, EPA asked 

for necessary information on the tribe’s water bodies, water uses, and 

land status. This information should have been included in the original 

request and followed up on at the time. EPA provided a variety of 

reasons for delays in this tribe’s review, including a lack of timely 

communication between the tribe and EPA. Based on the problems 

experienced in this case, EPA’s responsible regional office reported that 

it has taken steps to increase its tribal outreach activities. 

• In another case, 23 months after receiving supportive comments from 

governmental entities and over 1 year after regional counsel agreed that 

the tribe met all the legal requirements, EPA continued to request 

additional information regarding the tribe’s jurisdiction. According to 

25According to EPA officials, the agency has no similar requirement for TAS applications 

under the Clean Air Act, although they are reviewed in headquarters for national 

significance. 
Page 19 GAO-06-95 Indian Tribes

EPA officials, the agency inadvertently misfiled part of the tribe’s 

application paperwork and was waiting for the tribe to provide a 

replacement copy of the jurisdictional map so EPA could complete its 

review. 

• Finally, in one case under review for more than 4 years, the tribe 

amended its request in response to public comments. However, EPA 

was still requesting basic documentation that should have been included 

in the original request—2 years into the process. Furthermore, more 

than 1 year before approving the tribe’s TAS request, EPA determined 

that the request raised no nationally significant issues and stated that 

the tribal boundaries were clear. EPA officials agreed that there was a 

delay, but stated that they were not requesting basic documentation, 

such as the tribal constitution and codes, for the first time after the case 

had been in review for 2 years. Rather, the region had misplaced the 

original information provided by the tribe, and EPA was requesting that 

the tribe provide replacement copies of important information.

In addition, according to EPA and tribal officials, some of the delays during 

the review process occurred because of turnover in tribal or EPA staffing. 

Specifically, we were told that some tribes have experienced staff turnover 

in their environmental departments that affected their capability to 

administer the environmental program. For example, in one region, EPA 

officials cited tribal turnover as a cause for delay in 3 of the 10 requests 

under review. Furthermore, some tribal officials said that changes in their 

leadership sometimes shift their priorities away from following through 

with their TAS request. Finally, some EPA regional offices have 

experienced staff turnover, which caused some delay in reviewing requests 

because the new staff needed time to become acquainted with the tribes 

and to establish a relationship. For example, in one regional office, officials 

said that certain staff positions—those that deal directly with tribes—have 

changed about every 2 years. According to tribal officials, changes in both 

tribal and EPA regional staff have made it difficult to keep the continuity 

that the tribes believe they need to successfully administer a federal 

environmental program. 

According to EPA headquarters officials, in response to renewed concerns 

from tribes and within EPA, the agency has held management-level 

discussions with its regions to determine the status of outstanding requests 

and to determine how best to address the growing backlog. In October 

2005, EPA headquarters officials stated that they had completed 
Page 20 GAO-06-95 Indian Tribes

discussions with its regions and was analyzing the results to determine 

whether there are any systemic reasons for the lengthy review times. 

Delays and Lack of 

Transparency in the TAS 

Process Have Discouraged 

TAS Requests in One State

Some tribal officials told us that they have not submitted TAS requests 

because the process has become so lengthy. These officials, who 

represented five tribes in one western state, have observed the delays that 

other tribes in the state have experienced. They questioned the value of 

spending time and resources for such a lengthy process. 

Moreover, tribes cannot always determine the status of a particular request, 

the aspect of the review that may be delaying its approval, or the length of 

time it will take EPA to complete its review. This lack of transparency may 

hinder a tribe’s understanding of what issues are delaying EPA’s approval 

and what actions, if any, may be needed to address these issues. In one 

case, the regional office approved the request and sent it to headquarters 

for concurrence. While the request was in headquarters for about 2 years, 

regional officials told us they could not determine the status of the request 

and could not provide the tribe with adequate updates regarding their 

request. Tribal officials said that, even when asked, EPA could not provide 

the tribe with a comprehensive list of documents needed to complete the 

review. The request was under review at the time we completed our 

work—6 years after it was submitted.

Approvals for Program 

Authorization Often Do Not 

Meet Established Time 

Frames

As specified in the regulations for the Clean Water Act, a tribe must provide 

appropriate notice to governmental entities and hold a public hearing to 

discuss its proposed water quality standards. The standards may change in 

response to hearing comments. Thirty days after the tribe approves the 

proposed water quality standards, it must provide the regional office with a 

transcript of the hearing, responses to comments, the tribal-approved 

standards, and a certificate from a responsible legal authority documenting 

that the water quality standards have been adopted in accordance with 

tribal law. Following approval of a tribe’s TAS application, EPA’s guidelines 

call for it to approve a tribe’s water quality standards within 60 days of the 

tribe’s official submission of its water quality standards. 

For the 18 cases we reviewed under the Clean Water Act, EPA met its 60-

day requirement for approving water quality standards for 7 of the 

submissions. However, it did not meet its requirement for the other 11 

cases. Figure 5 shows the review times for the 18 tribes submitting water 

quality standards from 1992 through June 2005. See appendix IV for the 
Page 21 GAO-06-95 Indian Tribes

details on the dates that tribes submitted their water quality standards and 

EPA approved the standards.

Figure 5: Elapsed Time for EPA’s Approval of Tribes’ Water Quality Standards for 18 

Clean Water Act Cases Reviewed

As figure 5 shows, 11 of the reviews for water quality standards took 60 

days or more, with 4 taking 1 year or more for approval. 

EPA Provides a Variety 

of Grants to Help 

Tribes Manage Their 

Environmental 

Programs

For fiscal years 2002 through 2004, EPA provided Indian tribes about $360 

million in grants for a broad range of environmental activities. Of this total, 

1,343 grants totaling approximately $253 million went to 461 Indian tribes 

under four major acts including the Indian General Assistance Program—

which helps tribes develop their capacity to administer environmental 

programs—and three environmental acts—the Clean Water, Safe Drinking 

Water, and Clean Air Acts—which help tribes manage their environmental

Number of days

Number of submittals

Source: GAO analysis of EPA data.

012345678

0-59

60-179

180-364

365-730

730+

7

4

2

2

3
Page 22 GAO-06-95 Indian Tribes

programs.26 Furthermore, during these three fiscal years, EPA awarded an 

additional $106 million under other statutory authorities, including the 

Toxic Substances Control Act, the National Environmental Education Act, 

and the Comprehensive Environmental Response, Compensation, and 

Liability Act. Half of the $360 million was distributed through two specific 

programs: (1) the Indian General Assistance Program to help tribes to plan, 

develop, and establish environmental protection programs—approximately 

$114 million and (2) the Clean Water Act to help tribes prevent, reduce, and 

eliminate water pollution—approximately $66 million. 

Funds provided under the Clean Water, Safe Drinking Water, and Clean Air 

Acts may be used for such things as research, construction, and the 

development of regulatory programs. However, according to EPA officials, 

only a small part of the grant funds are used by tribes to apply for and 

develop regulatory programs under the various statutes. Although some, 

but not all, grants require TAS status, the standards of evidence EPA 

requires for TAS for grants are not as stringent as the standards for TAS for 

program authority. For example, the TAS grant decision is based on EPA’s 

knowledge of the tribe and the tribe’s area of jurisdiction. These decisions 

do not require EPA to seek comment from affected states and generally do 

not require a public comment period. 

Table 1 shows the amount of grant funding awarded under the Indian 

General Assistance Program and the three environmental acts for fiscal 

years 2002 through 2004. 

26Under these four acts, our analysis includes grants where EPA has designated the recipient 

type as an Indian tribe in the agency’s Integrated Grants Management System database. 

Other recipient types include state and local governments, educational institutions, and notfor-profit organizations. EPA also awards grants under other acts, including the Toxic 

Substances Control Act and the Federal Insecticide, Fungicide, and Rodenticide Act. EPA’s 

administrative requirements for environmental program grants for Indian tribes, and the 

environmental programs covered, are set out at 40 C.F.R. Part 35, Subpart B. 
Page 23 GAO-06-95 Indian Tribes

Table 1: Grant Dollars Provided to Tribes under Four EPA Acts for Fiscal Years 2002 

through 2004

Source: GAO analysis of EPA’s Integrated Grants Management System data.

a

Of the $252.9 million in total grants for fiscal years 2002 through 2004, approximately $3.7 million was 

awarded under more than one statutory authority. Although the multiple authorities included one of the 

four acts shown above, these grants may also have included other statutory authorities such as the 

Solid Waste Disposal Act or the National Environmental Policy Act. EPA could not provide the specific 

dollar amounts under each authority for these types of grants. 

In general, tribes initially apply for funding under EPA’s Indian General 

Assistance Program before applying for funds under the agency’s 

environmental programs. The Indian General Assistance Program provides 

financial assistance to help tribes build capacity in order to administer their 

environmental programs. The Indian General Assistance Program grant 

does not require a tribe to have TAS status. The duration of these grants (up 

to 4 years) provides tribes with a stable funding source, which is useful to 

tribes without tax revenues. The tribes have used these grants to, for 

example, hire, train, and maintain their own environmental experts, and to 

plan, develop, and establish environmental protection programs. 

Grants for some environmental programs, such as section 106 of the Clean 

Water Act and section 1443 of the Safe Drinking Water Act,27 have special 

provisions for TAS status. For example, EPA requires that tribes receive 

TAS status for section 1443 grants, while EPA regulations provide that 

tribes with TAS status contribute less in matching funds for section 106 

grants. The four TAS criteria for grants are similar to those for program 

authority under the three acts--specifically, a tribe must be federally 

recognized, have a governing body carrying out substantial duties and 

powers, have adequate jurisdiction, and have reasonable capabilities to 

Dollars in millions

Statutory authority FY 2002 – 2004 grants

Clean Water $65.8

Safe Drinking Water 42.8

Clean Air 26.3

Indian General Assistance Program 114.3

Multiple statutory authoritiesa 3.7

Total $252.9

27Grants awarded under section 1443 of the Safe Drinking Water Act help tribes to carry out 

public water system programs, including implementation and enforcement of the act. 
Page 24 GAO-06-95 Indian Tribes

carry out the proposed activities. The primary difference between TAS for 

grants and TAS for program authority is that EPA does not generally seek 

public comments on tribal requests for grants. In addition, there is 

generally no need to determine tribal regulatory jurisdiction for TAS 

eligibility for grants. 

To encourage tribes to apply for these funds, EPA provides fact sheets 

about the various financial assistance programs, sends them grant 

solicitations, and provides training to help them develop their grant 

requests. Nearly all tribal requests are reviewed and funded at the regional 

level.

Differences between 

Tribes and States over 

Environmental Issues 

Have Been Addressed 

in Various Ways

Since the three environmental acts were amended to allow tribes to receive 

TAS status and to implement EPA programs, some tribes, states, and 

municipalities have disagreed over tribal land boundaries and 

environmental standards that may differ from state standards. However, 

neither EPA nor any of the entities we contacted could identify the number 

of disagreements that have arisen between tribes, states, and municipalities 

over environmental issues.28 Generally, the disagreements have been 

addressed through litigation, cooperative agreements, or legislation. 

In terms of litigation, for example:

• In City of Albuquerque v. Browner,

29 the city challenged EPA's approval 

of the Pueblo of Isleta’s water quality standards, which are more 

stringent than New Mexico’s. The city asserted that EPA lacked the 

authority under the Clean Water Act to either (1) approve tribal water 

quality standards that are more stringent than required by the statute or 

(2) require upstream users such as the city to comply with the standards 

set by the Pueblo of Isleta, which is downstream from Albuquerque. A 

federal appellate court upheld EPA’s authority to approve the Pueblo’s 

standards. Among other things, the court noted that EPA is authorized 

to require upstream dischargers to comply with downstream standards. 

28EPA provided some examples of cases where the agency facilitated discussions and 

cooperative agreements between tribes and states in which water quality standards were 

involved.

2997 F.3d 415 (10th Cir. 1996), cert. denied, 522 U.S. 965 (1997).
Page 25 GAO-06-95 Indian Tribes

• In Montana v. EPA,

30 the state challenged EPA regulations allowing 

tribes with TAS authority to issue water quality standards applicable to 

all dischargers within a reservation, even those on land owned by 

nonmembers of the tribe. Montana argued that the regulations permit 

tribes to exercise authority over nonmembers that are broader than the 

inherent tribal powers recognized by the Supreme Court as necessary to 

self-governance. A federal appellate court held that EPA’s regulations 

properly delineated the scope of inherent tribal authority. It noted that 

the Supreme Court had held that a tribe could regulate the conduct of 

nonmembers when that conduct threatens or has some direct effect on 

the political integrity, the economic security, or the health or welfare of 

the tribe. EPA had found that pollution of tribal water resources by 

nontribal members posed such serious and substantial threats to tribal 

health and welfare that tribal regulation was essential. In this case, the 

court held that EPA’s regulations are a valid application of inherent 

tribal authority over nonconsenting nonmembers. 

Some tribes and states have addressed issues more collaboratively. For 

example:

• The Navajo Nation’s Environmental Protection Administration and the 

Arizona Department of Environmental Quality entered into a 

cooperative agreement in which, among other things, the state 

recognizes the jurisdiction of the Navajo Environmental Protection 

Administration over all lands within the Navajo Reservation and does 

not assert authority over those lands. In addition, Arizona and the 

Navajo Environmental Protection Administration agreed to share in the 

cost of pilot projects, including in-kind contributions and technical 

assistance. As a result of this collaborative effort, the tribe and state 

have been able to, among other things, share staff for training and assist 

one another with permit violations. In one instance, the tribe and the 

state investigated and found several areas of potential contamination of 

illegal petroleum leaks and spills. EPA ordered the company to stop its 

illegal actions and prepare an environmental cleanup plan. 

30137 F.3d 1135 (9th Cir.), cert. denied, 525 U.S. 921 (1998).
Page 26 GAO-06-95 Indian Tribes

• Many different parties, including tribal, federal, state, and local 

environmental groups, collaborated in an air toxics study, begun in 1999, 

to help assess the impacts of hazardous air pollutants in the Phoenix 

metropolitan area.31 The study, which is still ongoing, will review the 

status of air toxics studies nationally and identify potential approaches 

that may be useful in the Phoenix area. 

In some cases, EPA facilitates a resolution of disagreements between states 

and tribes during the review process. In these cases, EPA works 

collaboratively with the tribe to facilitate a resolution. For example, in one 

case, after discussing its application with EPA, a tribe amended its TAS 

submission by clarifying that it was not seeking approval to administer 

Clean Water Act programs on a portion of an adjacent river where 

jurisdictional issues had been raised and stated that it would continue its 

efforts to work cooperatively with the affected parties. 

Legislatively, a statute enacted in August 2005 addressed some of the 

jurisdictional concerns in Oklahoma over TAS for program authority.32 

Specifically, to be approved for TAS, the law requires Indian tribes and the 

state to enter into a cooperative agreement in which they agree to TAS 

status and develop a plan to jointly administer program requirements. This 

agreement is subject to the review and approval of EPA’s Administrator 

after notice and an opportunity for a public hearing. The only tribe in 

Oklahoma that currently has TAS status for administering programs is the 

Pawnee Nation. 

According to EPA officials, tribes and states have not used the dispute 

resolution mechanism EPA established under the Clean Water Act in 1987 

to address disagreements over water quality standards.33 Under this 

mechanism, EPA can attempt to resolve disputes when, for example, (1) 

differing water quality standards have been adopted pursuant to tribal and 

state law and approved by EPA; (2) a reasonable effort to resolve the 

dispute without EPA involvement has been made; and (3) a valid written 

31Currently, the State of Arizona Department of Environmental Quality, Maricopa County, 

Pinal County, the Gila River Indian Community, the Ft. McDowell Yavapai Nation, the Salt 

River Pima-Maricopa Indian Community, the U.S. Institute for Tribal Environmental 

Professionals at Northern Arizona University, and the EPA are working together to complete 

the Joint Air Toxics Assessment Project.

32Pub. L. No. 109-59, § 10211 (2005). 

33This mechanism is not available to cities and other governmental entities. 
Page 27 GAO-06-95 Indian Tribes

request for dispute resolution has been submitted by either the tribe or the 

state. We could not determine why states and tribes have not used this 

mechanism to resolve disagreements. 

According to a U.S. Institute for Environmental Conflict Resolution official, 

states and tribes have not used the Institute to resolve disagreements over 

the Clean Water, Safe Drinking Water, or Clean Air Acts. Congress 

established this institute in 1998 to help parties resolve environmental, 

natural resource, and public lands conflicts.34 The U.S. Institute serves as 

an impartial, nonpartisan entity that provides professional expertise, 

services, and resources to all parties to a dispute. The U.S. Institute helps 

parties determine (1) whether collaborative problem solving is appropriate 

for specific environmental conflicts, (2) how and when to negotiate, and (3) 

whether a third-party facilitator or mediator may be helpful in assisting 

parties in their efforts to reach consensus or to resolve conflict. The U.S. 

Institute also established the Native Dispute Resolution Network to 

provide an alternative for American Indians, Alaska Natives, and Native 

Hawaiians facing environmental conflicts. In commenting on a draft of this 

report, EPA advised us that they had recently contacted the Institute for 

assistance in discussions between tribal and state officials in Idaho on 

revising a lake management plan.

Conclusion We recognize that a tribe’s initial request for TAS may not include all 

required documentation and that EPA’s analysis of critical components of 

that request, such as the tribe’s jurisdiction over its land, water, and air, 

may take some time. However, EPA has generally not laid out a written 

strategy, including an estimated time frame, for the TAS review process. 

Such a written strategy would help better focus EPA’s efforts and provide 

greater transparency for the tribes, on the status of EPA’s review. We note 

that EPA has established time frames for completing some of its TAS 

processes, such as those for seeking public comment. We also note that, 

without a written strategy, the average approval time for TAS requests has 

increased from 12 months in 1998 to over 2 years as of June 2005. 

Moreover, in some cases, neither EPA regional officials nor the tribe know 

the status of the tribe’s TAS request. Without time frames or transparency 

34The Environmental Policy and Conflict Resolution Act of 1988 (Pub. L. No. 105-156) 

created the U.S. Institute for Environmental Conflict Resolution to assist parties in resolving 

environmental disputes that involve federal agencies or instrumentalities. 
Page 28 GAO-06-95 Indian Tribes

in the review process, Indian tribes may be discouraged from even applying 

for TAS and program authority. 

Recommendation for 

Executive Action

To better facilitate the timely review of tribal requests for TAS status for 

program authorization and to increase the transparency of the process to 

tribes, we recommend that the Administrator of EPA develop a written 

strategy, including estimated time frames, for its tribal request review 

process and for providing periodic updates to the tribes on the status of 

their requests. 

Agency Comments We provided EPA with a draft of this report for its review and comment. In 

commenting on the draft report, EPA agreed with our findings and 

emphasized their commitment to carefully considering these issues. EPA 

also provided technical comments, which we have incorporated into this 

report as appropriate. Appendix V contains the full text of the agency’s 

comments in a letter dated October 19, 2005. 

We are sending copies of this report to appropriate congressional 

committees; the Administrator, EPA; and other interested parties. In 

addition, the report will be available at no charge on the GAO Web site at 

http://www.gao.gov. 
Page 29 GAO-06-95 Indian Tribes

If you or your staff have any questions about this report, please contact me 

at (202) 512-3841 or stephensonj@gao.gov. Contact points for our Offices of 

Congressional Relations and Public Affairs may be found on the last page 

of this report. GAO staff who made major contributions to this report are 

listed in appendix VI.

John B. Stephenson

Director, Natural Resources

and Environment
Page 30 GAO-06-95 Indian Tribes

Appendix I

Objectives, Scope, and Methodology ApApenednxidexiIs

The Chairman of the Senate Committee on Environment and Public Works 

and the Chairman of the Senate Committee on Indian Affairs asked us to 

report on (1) the extent to which the Environmental Protection Agency 

(EPA) has followed its processes for reviewing and approving tribal 

requests for treatment in the same manner as a state (TAS) and program 

authorization under the Clean Water, the Safe Drinking Water, and the 

Clean Air Acts, (2) EPA’s programs for funding tribes’ environmental 

programs and the amount of dollars provided to tribes in fiscal years 2002 

through 2004, and (3) types of disagreements that have occurred between 

parties over EPA’s approval for granting tribes TAS status and program 

authorization and the methods that have been used to address these 

disagreements. Although our review focused primarily on the Clean Water 

Act, we also reviewed EPA’s process for reviewing and approving tribal 

requests under the Safe Drinking Water and Clean Air Acts. In addressing 

these issues, we collected information through case file reviews and 

interviews. 

To determine the extent to which EPA followed its processes for reviewing 

and approving TAS and program authorization requests, we reviewed EPA’s 

statutory and regulatory authorities, and guidance. Based upon this review, 

we developed a structured review guide for our case file reviews—a total of 

20 reviews. We selected EPA’s regions 6 (Dallas), 9 (San Francisco), and 10 

(Seattle) for our case file review because, collectively, these regions had 77 

percent of all approved tribal requests for program authorization under the 

three acts (20 of 26). These regions also had the largest number of 

approvals for program authority—18 approvals under the Clean Water Act, 

and 1 each under the Safe Drinking Water and Clean Air Acts. We reviewed 

in detail EPA’s TAS and program authorization process under the Clean 

Water Act because most activity has occurred under the act. We also 

reviewed EPA’s process for reviewing and approving tribal requests under 

the Safe Drinking Water and Clean Air Acts.1

 Furthermore, we reviewed 

data provided by EPA on another 12 TAS and/or program authority 

approvals, bringing the total number of TAS approvals to 32. In reviewing 

the case files, we ensured that documentation existed to fulfill the statutory 

and regulatory requirements, compared length of reviews with statutory 

deadlines, and examined the cause of delays. With EPA officials in 

1

For the purposes of our report, we only looked at TAS requests for Part 71—operating 

permits under the Clean Air Act. Among other things, Indian tribes have also been approved 

for treatment as an affected state under title V of the Clean Air Act, which allows them to 

review and comment on permits issued by neighboring states to facilities having the 

potential to impact tribal lands.
Appendix I

Objectives, Scope, and Methodology

Page 31 GAO-06-95 Indian Tribes

headquarters and in regions 6, 9, and 10, we used semistructured interviews 

to obtain their understanding of the TAS and program authorization 

processes under the three environmental acts. EPA also provided data on 

the 57 tribes that had applied for TAS status and/or program authorization, 

and the dates of request and approval (when applicable). We cross-checked 

this information with the case file documents for the 20 cases we reviewed. 

We also conducted interviews with selected officials from the Department 

of the Interior’s Bureau of Indian Affairs, affected states, and 

representatives of Indian tribes in Arizona, New Mexico, Oklahoma, and 

Washington to discuss their knowledge of, and concerns about, EPA’s 

processes for reviewing and approving tribal requests for TAS status and 

program authorization.

To examine EPA’s programs for funding tribes, we obtained data from EPA’s 

Integrated Grants Management System, a computer database used by the 

agency to manage and report on information about grants, to determine the 

number of federally recognized Indian tribes receiving funding for fiscal 

years 2002 through 2004.2

 Specifically, we analyzed information on the 

number of grants and the dollars awarded under specific statutory 

authorities for cases where the recipient type was listed as “Indian tribe.” 

This recipient type only applies to grants awarded to federally recognized 

tribes or intertribal consortia. According to EPA officials familiar with the 

data, tribes that are not federally recognized can receive grants, however, 

only federally recognized tribes are categorized as “Indian tribes” in the 

data element “recipient type.” We assessed the reliability of EPA’s 

Integrated Grants Management System data by (1) performing electronic 

testing of required data elements, (2) reviewing existing information about 

the data, including past GAO reports and workpapers on the system, and 

(3) interviewing agency officials knowledgeable about the data. We 

determined that the data were sufficiently reliable for the purposes of this 

report. In addition, we reviewed and documented the various programs 

available to Indian tribes under the Indian Environmental General 

Assistance Program Act of 1992 and the Clean Water, Safe Drinking Water, 

and Clean Air Acts for fiscal years 2002 through 2004; and EPA’s guidelines 

for providing funding to tribes through these programs. 

To examine the types of disagreements that have occurred between parties 

over EPA’s approval for granting tribes TAS status and program 

2

The data were obtained from EPA’s Office of Grants and Debarment, which among other 

things, compiles grant information for the agency.
Appendix I

Objectives, Scope, and Methodology

Page 32 GAO-06-95 Indian Tribes

authorization and the methods that have been used to address these 

disagreements, we reviewed EPA’s statutory and regulatory processes for 

resolving disputes between different parties under the Clean Water Act. 

Although the dispute resolution provision specified in the Clean Water Act 

regulations has not been officially used, EPA staff provided us with other 

examples of tribes and outside parties creating collaborative agreements 

and resolving disputes. We also interviewed selected EPA, state, and tribal 

officials. In addition, we interviewed an official from the U.S. Institute for 

Environmental Conflict and Resolution to gain an understanding of the 

entity’s objectives, roles, and responsibilities.

We performed our work between November 2004 and October 2005, in 

accordance with generally accepted government auditing standards. 
Page 33 GAO-06-95 Indian Tribes

Appendix II

Tribal Entities and Dates Requests Were 

Submitted and Approved for TAS, as of June 

2005 ApendxiI

Cases GAO reviewed in detail (20) Date submitteda Date approved

Time elapsed

(months)

Pueblo of Nambe (NM) 5/11/1995 8/18/1995 3.2

Pueblo of Picuris (NM) 5/1/1995 8/7/1995 3.2

Pueblo of Pojoaque (NM) 12/15/1995 3/21/1996 3.2

Pueblo of Tesuque (NM) 1/8/1997 4/29/1997 3.7

Navajo Nation (AZ)b 6/17/2004 10/13/2004 3.9

Pueblo of Santa Clara (NM) 3/13/1995 7/19/1995 4.2

Pueblo of San Juan (NM) 9/28/1992 5/12/1993 7.5

Pueblo of Isleta (NM) 2/13/1992 10/13/1992 8.0

Pueblo of Sandia (NM) 4/21/1992 12/24/1992 8.1

Puyallup Tribe of Indians (WA) 6/24/1993 5/25/1994 11.0

Confederated Tribes of the Chehalis Reservation 

(WA) 2/16/1994 3/7/1995 12.7

Confederated Tribes of the Warm Springs 

Reservation (OR) 2/20/1998 5/25/1999 15.2

White Mountain Apache Tribe (AZ) 8/2/1995 2/3/1997 18.0

Confederated Tribes of Umatilla (OR) 10/20/1999 4/30/2001 18.3

Kalispel Indian Community (WA) 11/17/2000 11/4/2002 23.6

Pueblo of Acoma (NM) 12/15/1998 4/17/2001 28.1

Hoopa Valley Tribe (CA) 5/21/1993 5/17/1996 35.9

Navajo Nation (AZ)c 4/4/1988 8/9/1991 40.2

Hualapai Indian Tribe (AZ) 3/1/2000 7/22/2004 52.7

Spokane Tribe of Indians (WA) 12/11/1997 7/23/2002 55.4

Other tribal entities receiving TAS approval GAO 

did not review in detail (12)

Port Gamble S’Klallam (WA) 3/6/2003 9/24/2003 6.6

Miccosukee Tribe (FL) 5/27/1994 12/20/1994 6.8

Fond du Lac Band of Chippewa (MN) 6/14/1995 5/16/1996 11.1

Seminole Tribe (FL) 5/19/1993 6/1/1994 12.4

Mole Lake Band of the Lake Superior Tribe of 

Chippewa Indians, Sokaogon Chippewa Community 

(WI) 8/13/1994 9/29/1995 13.5

Assiniboine and Sioux Tribes of the Fort Peck Indian 

Reservation (MT) 3/24/1994 8/29/1996 29.2

Makah Indian Nation (WA) 6/27/2001 12/23/2003 29.9

St. Regis Band of Mohawk Indians (NY) 2/1/2000 10/16/2002 32.5

Tulalip Tribes (WA) 8/11/1993 5/9/1996 32.9
Appendix II

Tribal Entities and Dates Requests Were 

Submitted and Approved for TAS, as of June 

2005

Page 34 GAO-06-95 Indian Tribes

Source: GAO analysis of EPA data.

Note: Of the 32 cases, 30 were approved under the Clean Water Act, 1 under the Safe Drinking Water 

Act, and 1 under the Clean Air Act.

a Our analysis uses the date the tribe’s application was recorded as received in EPA’s official case file. 

According to EPA, that date may not necessarily be the date the agency accepted the tribe's request 

as complete. Even though, in most cases, EPA works with the tribe to develop its application prior to 

submission, according to EPA, some applications present complex legal issues that need to be 

discussed before EPA will accept them.

b

The Navajo Nation’s TAS request was submitted under the Clean Air Act.

c

The Navajo Nation’s TAS request was submitted for the public water systems program under the Safe 

Drinking Water Act.

Grand Portage Band of Chippewa (MN) 10/13/1993 7/16/1996 33.1

Confederated Salish and Kootenai Tribes of the 

Flathead Reservation (MT) 4/22/1992 3/1/1995 34.3

Pawnee Nation (OK) 3/2/1998 11/4/2004 80.1

(Continued From Previous Page)

Cases GAO reviewed in detail (20) Date submitteda Date approved

Time elapsed

(months)
Page 35 GAO-06-95 Indian Tribes

Appendix III

TAS Requests under Review, as of June 2005 ApendxiI

Source: GAO analysis of EPA data.

a

Our analysis uses the date the tribe’s application was recorded as received in EPA’s official case file. 

According to EPA, that date may not necessarily be the date the agency accepted the tribe's request 

as complete. Even though, in most cases, EPA works with the tribe to develop its application prior to 

submission, according to EPA, some applications present complex legal issues that need to be 

discussed before EPA will accept them.

Tribal entities Date submitteda

Time under review

(months)

Shoshone-Bannock (ID) 12/27/2004 6.1

Blackfeet Tribe (MT) 10/6/2004 8.8

Pyramid Lake Paiute (NV) 6/18/2004 12.4

Big Pine Band of Owens Valley (CA) 6/1/2004 13.0

Santee Sioux (NE) 4/4/2004 14.9

Pueblo of Taos (NM) 6/10/2003 24.7

Northern Cheyenne Tribe (MT) 4/29/2002 38.0

Cocopah Tribe (AZ) 2/14/2002 40.5

Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation (AZ) 2/3/2002 40.9

Navajo Nation (AZ)b 10/18/2001 44.4

Yavapai-Prescott Nation (AZ) 1/23/2001 53.2

Agua Caliente Band of Cahuilla Indians (CA) 1/7/2001 53.8

Ute Mountain Ute (CO) 6/29/2000 60.0

Hopi Tribe (AZ) 6/20/2000 60.3

Paiute-Shoshone Indians of the Bishop Community (CA) 6/8/2000 60.7

Red Cliff Band of Chippewa (WI) 3/8/2000 63.7

Lac du Flambeau Band of Chippewa (WI) 11/22/1999 67.3

Navajo Nation (AZ) 11/22/1999 67.3

Assiniboine-Sioux of Ft. Peck Indian Reservation (MT) 7/27/1999 71.1

Salt River Pima-Maricopa Indian Community (AZ) 6/24/1999 72.2

Coeur D’Alene Tribe (ID)c 3/18/1999 75.4

Mille Lacs Band of Chippewa (MN) 12/30/1997 90.0

Leech Lake Band of Chippewa (MN) 11/15/1997 91.5

Bois Forte Band of Chippewa (MN) 7/18/1997 95.4

Three Affiliated Tribes of the Fort Berthold Reservation (ND) 12/30/1996 102.0

Red Lake Band of Chippewa (MN) 11/7/1995 115.8

Keweenaw Bay Indian Community (MI) 8/10/1995 118.7

Lummi Tribe (WA) 3/8/1995 123.7

Confederated Tribes and Bands of the Yakama Indian Nation (WA) 11/4/1994 127.9
Appendix III

TAS Requests under Review, as of June 2005

Page 36 GAO-06-95 Indian Tribes

b

The Navajo Nation’s TAS request was submitted for the underground injection control program under 

the Safe Drinking Water Act.

c

According to EPA, the Coeur D’Alene tribe was approved for TAS in August 2005.
Page 37 GAO-06-95 Indian Tribes

Appendix IV

Elapsed Time for EPA’s Approval of Tribes’ 

Water Quality Standards for 18 Clean Water 

Act Cases Reviewed ApendxiIV

Source: GAO analysis of EPA data.

a

TAS approval is a prerequisite for obtaining program authority to set water quality standards. The date 

submitted reflects a tribe’s TAS approval date or the date the tribe submitted its water quality standards 

following TAS approval. Thus, in those cases where the tribe submitted its water quality standards after 

receiving TAS approval, the elapsed time calculation is based on the date the water quality standards 

were submitted.

Tribal entities Date submitted Date approved

Elapsed time

(days)a

Pueblo of Picuris (NM) 8/7/1995 8/7/1995 0.0

Pueblo of Pojoaque (NM) 3/21/1996 3/21/1996 0.0

Pueblo of Nambe (NM) 8/18/1995 8/18/1995 0.0

Pueblo of Santa Clara (NM) 7/19/1995 7/19/1995 0.0

Pueblo of Acoma (NM) 4/17/2001 4/17/2001 0.0

Pueblo of Tesuque (NM) 4/29/1997 4/29/1997 0.0

Hualapai Indian Tribe (AZ) 7/22/2004 9/12/2004 50.0

Puyallup Tribe of Indians (WA) 8/22/1994 10/31/1994 69.0

Pueblo of Isleta (NM) 10/13/1992 12/24/1992 71.0

Pueblo of San Juan (NM) 5/12/1993 9/16/1993 124.0

Confederated Tribes of Umatilla (OR) 4/30/2001 10/18/2001 168.0

Pueblo of Sandia (NM) 12/24/1992 8/10/1993 226.0

Spokane Tribe of Indians (WA) 7/23/2002 4/22/2003 269.0

Confederated Tribes of the Chehalis Reservation (WA) 3/11/1996 2/3/1997 322.0

Kalispel Indian Community (WA) 3/24/2003 6/24/2004 450.0

White Mountain Apache Tribe (AZ) 3/27/2000 9/27/2001 540.0

Hoopa Valley Tribe (CA) 7/10/2000 9/11/2002 781.0

Confederated Tribes of the Warm Springs Reservation (OR) 5/25/1999 9/28/2001 843.0
Page 38 GAO-06-95 Indian Tribes

Appendix V

Comments from the Environmental 

Protection Agency ApendxiV
Page 39 GAO-06-95 Indian Tribes

Appendix VI

GAO Contact and Staff Acknowledgments ApendxiVI

GAO Contact John B. Stephenson, (202) 512-3841, stephensonj@gao.gov

Staff 

Acknowledgments 

In addition to the individual named above, Ronald E. Maxon, Jr., Assistant 

Director; Tyra DiPalma-Vigil; Chad Factor; Doreen Feldman; Richard 

Johnson; Crystal Jones; Jeff Malcolm; Rebecca Shea; and Carol Herrnstadt 

Shulman made key contributions to this report. 

(360531)
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