1 of 6 C lean W ater A ct Tribal Provision

Discussion Paper Prepared by the U.S. Environmental Protection Agency

Office of Water and Office of General Counsel

May 2015

Purpose : This paper discusses a potential action that EPA is considering to revise its approach to tribal regulatory authority under the Clean Water Act (CWA or Act). From April to September 2014, EPA engaged in several discussions with tribes, states, and tribal and state

o rganizations. During that time, we presented the basic concepts of the potential action, which had also been generally described in a 2011 EPA document titled Plan EJ 2014: Legal Tools

. Th e pertinent part of that document and other information about EPA’s potential action are
available at http://water.epa.gov/scitech/swguidance/standards/wqslibrary/tribal.cfm

.

Background : Congress enacted the CWA tribal provision (Section 518) as part of amendments
to the statute in 1987. Among other things, Section 518 authorized EPA to treat eligible Indian
tribes in a similar manner as states (a process that we refer to as TAS) for a variety of purposes,
inclu ding administering each of the principal CWA regulatory programs and receiving grants under several CWA funding authorities. Section 518(e) establishes the eligibility criteria for TAS, including requirements that t he t ribe ha ve a governing body carrying out substantial governmental duties and powers; that t he functions to be exercised by the t ribe pertain to the management and protection of water resources within the borders of an Indian reservation ; and
that t he tribe be reasonably expected to be capable of carrying out the functions to be exercised in a manner consistent with the terms and purposes of the Act and applicable regulations. For ease of reference, relevant language from Section 518(e) (2) and (h)(1) (which defines Indian reservations for purp oses of the CWA) is excerpted below.

... 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 I ndian tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation... (Section 518(e)(2))

...‘ Federal Indian reservation ’ means all land within the limits of any Indian reservation

u nder the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights

- of

- way running through the reservation... (Section 518(h)(1))

In the early 1990’s, EPA promulgated regulations establishing TAS applicati on and review procedures for a range of CWA regulatory programs available to tribes. Section 518 makes no reference to any demonstration of regulatory authority to obtain TAS ; rather, it requires only that the functions to be exercised by the applicant tr ibe pertain to the management and protection of reservation water resources

. E PA nonetheless took a cautious approach by requiring that tribes seeking TAS for the purpose of administering a regulatory program under
the Act must demonstrate their inherent jurisdiction to do so under principles of federal Indian
law , including a demonstration of inherent authority over the activities of non

- members of the2 of 6

tribe on non

- member

- owned fee lands. 1 EPA recognized at the time that there was significant support for the proposition that Congress had intended to delegate authority to otherwise eligible tribes to regulate their entire reservations under the Act. Notably, in a plurality opinion of the U.S. Supreme Court, Justice White had even cited Section 518 as repr esenting a c ongressional delegation of authority to Indian tribes. 2 EPA also stated the Ag e ncy’s interpretation that in
S ection 518, Congress had expressed a preference for tribal regulation of surface water quality on reservations to assure compliance wi th the goals of the CWA. Nonetheless, in an abundance
of caution

, EPA opted at the time to require tribes to demonstrate , on a case

- by

- case basis, their inherent jurisdiction to regulate under the CWA. EPA was clear, however, that this approach was subje ct to change in light of further judicial or c ongressional guidance. 3

S ubsequent Developments : Since the promulgation of EPA’s CWA TAS rules in the 1990’s, there have been significant developments warranting reconsideration of EPA’s initial cautious approach to tribal jurisdiction. At this point, EPA has approved TAS applications from 49 tribes for the purpose of administering CWA re gulatory programs

– all of which have been for CWA Section 303(c) water quality standards ( W Q S ) and Section 401 certifications. There have been three judicial challenges to these actions, and in all cases EPA’s determinations that the applicant
tribes had demon strated requisite jurisdiction and met the TAS requirements were upheld. 4 Importantly, the first court to review a challenge to an EPA CWA TAS approval readily agreed with an argument proffered by the applica n t tribe

– participating as amicus

– that Section 518 is properly interpreted as an express c ongressional delegation of authority to Indian tribes over
their entire reservations. Montana v. EPA

, 941 F. Supp. 945, 951

- 52 (D. M ont. 1996)

, aff’d , 137
F.3d 113 5 (9 th Cir.)

, cert. den ied

, 525 U.S. 921 (1998)

. The court also noted that a c ongressional delegation of authority to tribes “comports with common sense” to avoid a result where an interspersed mixing of tribal and state WQS could apply on a reservation d epending on whether
the waters traverse or bound tribal or non

- Indian reservation land. Id

.
Additional judicial guidance arrived several years later during a challenge to EPA’s TAS regulation under a separate statute, the Clean Air Act (CAA). Arizona Pu blic Service Co. v.
EPA , 211 F.3d 1280 (D.C. Cir. 2000), cert. denied

, 532 U.S. 970 (2001). EPA promulgated the CAA TAS rule in 1998 and in that context interpreted th e CAA as including a n express

c ongressional delegation of authority to eligible Indian t ribes to regulate their entire reservations
under that statute . 63 F ed. R eg. 7254 (February 12, 1998). As part of its analysis upholding EPA’s interpretation , the D.C. Circuit acknowledged similarities between the CAA and CWA

1 Under principles of federal Indian law, demonstrations of inherent tribal authority over such non

- member activities are guided by the principles expressed in Montana v. United States

, 450 U.S. 544 (1981)

, and its progeny.

2 Brendale v. Confederated Tribe s and Bands of the Yakima Nation

, 492 U.S. 408, 428 (1989).

3 A useful description of EPA’s initial approach to tribal regulatory authority under the CWA can be found in the preamble to EPA’s TAS regulations for the Section 303(c) water quality standards program. 56 F ed. R eg. 64876 (December 12, 1991).

4 Wisconsin v. EPA , 266 F.3d 741 (7 th Cir. 2001)

, cert. den ied , 535 U.S. 1121 (2002) (Sokaogon Chippewa Community); Montana v. EPA

, 137 F.3d 1135 (9 th Cir.), cert. den ied , 525 U.S. 921 (1998) (Confederated Salish and Kootenai Tribes of the Flathead Reservation); Montana v. EPA

, 141 F.Supp.2d 1259 (D. Mont. 1998) (Assiniboine and Sioux Tribes of the Fort Peck Reservation).3 of 6

TAS provisions, as well as E PA’s different approach under the CWA. 211 F.3d at 1291

- 92. T he court noted with significance that EPA’s approach under the CWA had not been subjected to judicial review and observed favorably the district court’s statements in Montana v. EPA that
S ection 518 plainly indicates c ongressional intent to delegate authority to Indian tribes. Id. Ultimately, the D.C. Circuit recognized that EPA had taken a cautious approach under the CWA
but that there was no reason to do so again under the CAA. Id.

A dissenting judge in the CAA case predicated his disagreement with the majority largely
on the absence from the CAA of language ex pressly describing the reservation areas over which tribes would exercise jurisdiction as including all reservation lands notwi thstanding the issuance of any patent and including rights

- of

- way running through the reservation

. Id. at 1301

- 05. The dissent viewed this language as critical to an expression of c ongressional intent that tribes are to exercise delegated authority over all reservation lands, including lands owned by non

- members
of the tribes

. Id. Notably, the dissent observed that the key “notwithstanding” language is, in fact, included in the relevant tribal provisions of the CWA

. Id. at 1302 ( also referencing
Brenda le

, 492 U.S. at 428). The dissent noted that in spite of the statement in Brendale , EPA
had determined not to treat CWA S ection 518 as a c ongressional delegation; however, the dissent also observed that no court had yet resolved the issue. Id.

Although no court has decided the issue of whether CWA Section 518 constitutes an express delegation of authority to tribes , EPA believes it is of great import that the three courts that have considered the issue have favorably viewed such an interpretatio n: the U.S. Supreme
Court in Brendale

, the federal district court in Montana v. EPA

, and the D.C. Circuit in APS

. EPA also believes that the CAA TAS provision

– enacted only three years after CWA Section
518

– provides useful guidance regarding Congress’ understanding of the importance of uniform tribal regulation of mobile environmental pollutants within reservations , and that this understanding can fairly be traced back to the 1987 enactment of CWA S ection 518. In light of this clear direction, EPA bel ieves it is appropriate to revisit our interpretation of tribal regulatory authority under the CWA . Revising our interpretation and concluding definitively that Section
518 constitutes a c ongressional delegation of authority would eliminat e unnecessary ad ministrative burd ens not set forth in the statute, would provide greater consistency in the processing of TAS applications across EPA statutes with similar tribal provisions, and would thus ultimately provide greater fairness to applicant Indian tribes.

Potential Change : If EPA proceeds with the new approach, a tribe applying for TAS to administer CWA regulatory programs would be able to rely on a congressional delegation under Section 518 as the source of its authority to regulate reservation waters, in cluding the water

polluting activities of non

- tribal members on their reservation lands. Tribes would no longer need to make a separate showing of inherent authority. All other aspects of the TAS criteria and regulatory procedures would remain unchanged.4 of 6 Q uestions and Answers

During the 2014 outreach discussions

, EPA received questions that helped clarify some of the issues that may be raised as we consider revising our interpretation of Section 518. W e provide our initial views on some of those issues below.

1. Would the potential revised interpretation affect the processing of eligible tribes’
CWA regulatory programs?

No. Tribes that receive TAS would remain subject to all existing requirements applicable
to submission and review of their actual r egulatory programs. EPA’s review of a tribe’s program
submission

– e.g. , a tribe’s submission of water quality standards under Section 303(c)

– involves a separate action from the approval of TAS eligibility. The potential revised interpretation would no t approve any tribe’s actual regulatory program; nor would it alter any applicable programmatic requirements.

2

. Would the potential re vised interpretation alter the g eographic s cope of TAS ?

No. The potential re vised interpretation would not affect

– either by expanding or contracting

– the geographic scope of tribal TAS eligibility under the CWA. U nder S ection 518,
tribes can only obtain TAS status over their reservations. Tribes can seek TAS with respect to water resources pertai ning to a ny type of on

- reservation land, including , for example, reservation land held in trust by the United States for a tribe , reservation land owned by or held in trust for a member of the tribe, and reservation land owned by non

- tribal members. 5 But tribes cannot obtain TAS under the CWA for water resources pertaining to any non

- reservation land. 6 This basic limitation would be unaffected by the potential revised interpretation. In addition, EPA’s existing CWA TAS regulations provide for applicant t ribes to submit a map or legal description of the reservation area that is the subject of the TAS application. See

, e.g. , 40 C

. F

. R

. 131.8(b)(3)(i). This provision would continue to apply and would ensure that each tribe applying for a CWA regulatory program submits information adequate to demonstrate the location and boundaries of the subject reservation.

3

. Would the potential re vised interpretation affect t ribal criminal enforcement authority ?

No. The p otential revised interpretation w ould not affect any existing limitations on tribal criminal enforcement authority. Th e interpretive change EPA is considering relates solely

5 F or purposes of EPA’s programs

, Indian reservatio ns include both formal reservations and informal reservations ( i.e.

, trust lands validly set aside for Indian tribes that have not been formally designated as an Indian reservation )

. See, e.g.

, 56 F ed. R eg. at 64881.

6 Many tribes have rights to hunt, f ish, gather resources, or perform other activities in areas outside of their
reservations. To the extent the lands on which these rights are exercised are not Indian reservation lands as defined at 18 U.S.C. 1151(a), tribes cannot obtain TAS under the CWA for water resources pertaining to such lands.5 of 6

to Indian tribes’ civil regulatory authority to administer CWA programs on their reservation s ; it
would not address or in any way alter the scope of tribal criminal enforcement jurisdiction.

4

. Would interested entities still be able to comment on a tribe’ s assertion of jurisdiction?

Yes. EPA’s existing CWA TAS regulations provide opportunities for potentially interested entities to provide input to EPA regarding any jurisdictional issues associated with a tribe’s TAS application. For instance, EPA’s TAS regulations for the CWA Section 30 3(c) WQS program include a process for notice to appropriate governmental entities

– states, tribes and other federal entities located contiguous to the reservation of the applicant tribe

– and provide an opportunity for such entities to comment on the app licant tribe’s assertion of authority. EPA also routinely makes such notices broad enough

– e.g. , through publication in local newspapers and electronic media

– that other potentially interested entities can participate in the process. These procedures w ould continue to apply in full. Under the potential revised interpretation of Section 518, the principal jurisdictional issue would likely be the boundaries of the subject reservation. 7 However, to the extent a particular application presents a separate jurisdictional issue, the existing notice

- and

- comment proce dures would be available to raise such
an issue to EPA for due consideration.

5

. What about special circumstances unique to speci fic tribes?

EPA is aware that t here could be unusual circumstances that limit or preclude a particular tribe’s ability to accept or effectuate a c ongressional delegation of authority over its reservation. For example, there could be a separate federal st atute establishing unique jurisdictional arrangements for a specific state or a specific reservation that could affect a tribe’s ability to exercise authority under the CWA. It is also possible that provisions in particular treaties or
tribal constitution s could limit a tribe’s ability to exercise relevant authority. Existing CWA TAS regulations require applicant tribes to submit legal statements describing the basis for their
assertion s of authority and provide opportunities for potentially interested en tities to comment on
the assertion of authority . These requirements would continue to apply and would ens ure that any special circumstances are addressed in a tribe’s TAS application and that interested entities

w ill have an opportunity to raise such issu es and provide their views. 8

7 EPA notes that the geographic scope of a tribe’s TAS application

– i.e. , the boundary of the reservation area that a tribe seeks to regulate

– is already a relevant jurisdictional issue under EPA’s current approach to tribal jurisdiction under the CWA. The potential revised interpretation would thus impose no additional burden on entities that wish to comment on an applicant tribe’s reservation boundary

.

8 EPA is aware that Section 10211(b) of the Safe, A ccountable, Flexible, Efficient Transportation Equity Act of 2005 (SAFETEA), Public Law 109

- 59, 119 Stat. 1144 (August 10, 2005) established a unique TAS requirement with respect to Indian tribes located in the State of Oklahoma. Under S ection 10211(b), t ribes in Oklahoma seeking TAS under a statute administered by EPA for the purpose of administering an environmental regulatory program must, in addition to meeting applicable TAS requirements under the EPA statute, enter into a cooperative agreement
with t he S tate that is subject to EPA approval and that provides for the tribe and state to jointly plan and administer program requirements. This requirement e xists apart from, and in addition to, existing TAS criteria, including the
TAS criteria set forth in S ection 518 of the CWA. The potential revised interpretation that EPA is considering6 of 6

6

. Would there be effects on tribes that EPA has previously found eligible for TAS ?

No. There would be no effect on tribes that EPA has previously found eligible for TAS for the purpose of a CWA regulatory program

.

7

. Would the potential re vised interpretation a ffect any EPA

- approved state

programs ?

No. The potential revised interpretation would have no effect on the scope of existing state regulatory programs approved by EPA under the CWA. It would neither diminish, nor enlarge, the scope of such approved state programs

.

8

. How would tribes and states address differences in their respective regulatory programs?

R egulations already exist to address circumstances where a state or tribe believe s that unreasonable consequences could arise or have arisen as a result of differing WQS set by states and eligible Indian tribes on common bodies of water. Section 518(e) of the CWA required EPA to provide a mechanism to address such situations

. T he Age ncy did so at 40 C

. F

. R

. 131.7, which establishes a detailed dispute resolution mechanism

. Th e potential revised interpretation would
not affect t hat process; it would remain available as needed to address potential state/ tribal
issues.

9

. Would the potential revised interpretation affect TAS applications for CWA grant funding?

The potential revised interpretation would not address or affect the TAS requirements or review process for tribes to receive grants. T he receipt of grant funding does not inv olve any exercise of regulatory authority

. Therefore , a determination of TAS eligibility solely for funding purposes does not, under existing regulations, require an analysis or determination regarding an applicant tribe’s regulatory authority.

1 0

. If EPA decides to move forward, what process will it use?

If EPA decides to move forward with the revised interpretation, we would publish a notice proposing the revision in the Federal Register and provide an opportunity for comment prior to proceeding with an y final interpretive change. T here will thus be an additional opportunity for interested entities to provide their views to EPA at that point.

relates solely to the interpretation of an existing CWA TAS requirement; it would thus have no effect on the separate TAS requirement of S ection 10211(b) of SAFETEA.