Corey Buffo, Chief 

Regional, State and Tribal Standards Support Branch 

U.S. EPA, Mail Code 4305T 

1200 Pennsylvania Avenue, NW 

Washington, DC 20460 

By email to: TASreinterpretation@epa.gov 

June 18, 2014 

Re: Comments on Potential Reinterpretation of Clean Water Act TAS Provisions 

Dear Mr. Buffo: 

The Pueblo of Laguna strongly supports a·n interpretation of Clean Water Act ("CWA") § 

518(e), 33 u.s.c. § 1377(eL as a congressional delegation of authority to lndi~m :tribes to 

administer CWA programs throughout their reservations• This interpretation is consistent with 

the express language of the CWA and is an appropriate recognition of tribal sovereignty. 

The Pueblo -O-r Laguna is ·in the process of applying for feder-al approval of the Laguna 

Water Quality Standards and has prepared a "treatment as a state" application for that 

purpose. The· most t ime-consuming portion of preparing that application was the 

demonstration, required by EPA's c·urrent interpretation of CWA § 518(e), that the Pueblo has 

authority to administer its standards withi~ its reservation pursuant to Montana ·v. United 

States, 450 U.S. 544 (1981). Interpreting CWA § 518(e) as a congressional delegation of 

authority, thereby obviating the need for tribes to make Montana demonstrations, would 

substantially expedite the application and approval process and would constitute a step toward 

ensuring that all the Nation's waters an~ prbt~Cted , 'see CWA § 101(at 33' ·u.s.c. § 1251{a-), 

fncludin'g tho~e on'tr,iballands-.: 

. , • 

Mon:iover~ 'EPA's proposed reinterpretation is in ·fact the correct interpretation of the 

CWA, as confirmed by case law. As EPA acknowledged in its initial rulemakings under CWA § 

518(e), that provision was· specifically cite-d by tne ·· sup.reme Court -as an example of a 

congressional delegation of authority to tribes: Brendale v. ·confed. Tribes & Bands of the 

Yakima Nation, 492 US 408, 428' (1989}; see also Montana v. EPA, 941 F. Supp. 945, 951-52, 

957 and n. 12. Further, EPA's subsequent interpretation of comparable language in Clean Air 

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Act § 301(d), 42 U.S.C. § 7601(d), as a congressional delegation was upheld in Ariz. Pub. Service 

Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000). Compare CWA § 518(e) (acknowledging tribal 

authority over water resources "within the borders of an Indian reservation") with Clean Air Act 

§ 301(d) (acknowledging tribal authority over air resources "within the exterior boundaries of 

the reservation"). 

EPA also has noted that "the activities regulated under the various environmental 

statutes generally have serious and substantial impacts on human health and welfare;" that the 

CWA itself "constitutes, in effect, a legislative determination that activities which affect surface 

water and critical habitat quality may have serious and substantial impacts;" that "because of 

the mobile nature of pollutants in surface waters and the relatively small length/size of . . . 

water bodies on reservations, it would be practically very difficult to separate out the effects of 

water quality impairment on non-Indian fee land within a reservation with those on tribal 

portions;" and that "any impairment that occurs on, or as a result of, activities on non-Indian 

fee lands are [sic] very likely to impair the water and critical habitat quality of the tribal lands." 

56 Fed. Reg. 64876, 64878 (Dec. 12, 1991). There is therefore little if any reason to require 

each and every tribe applying for CWA approval of water quality standards to demonstrate, 

through application of the Montana test, these very same principles, especially in light of the 

substantial amount of time and effort Montana demonstrations entail. 

Finally, as EPA has recognized, id., it is vital to human health and the environment to 

ensure that all surface waters and critical habitats are protected, including those on tribal lands. 

Therefore, EPA not only should encourage tribes to promulgate and obtain CWA approval for 

water quality standards on their reservations but also EPA should refrain from imposing 

unnecessary burdens on tribes who develop water quality standards. EPA's proposed 

reinterpretation of CWA§ 518(e) serves both purposes. 

For all these reasons, the Pueblo of Laguna encourages EPA to proceed with a 

rulemaking reinterpreting CWA§ 518(e) as a congressional delegation of CWA authority to 

Indian tribes to administer CWA programs throughout their reservations. 

Sincerely, 

Richard B. Luarkie 

Governor, Pueblo of Laguna