Corey Buffo, Chief Regional, State and Tribal Standards Support Branch U.S. EPA, Mail Code 4305T 1200 Pennsylvania Avenue, NW Washington, DC 20460 By emailto: 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 ofthe CWA and is an appropriate recogn ition oftribal 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. Th e· 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** o n'tr, iballands- . :



# . , •

### Mon:iov**er ~**  ' 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

'· PO BOX 194 • LAGUNA • NEW MEXICO • 87026 PH : 505.552.6654 • F X: 505 .552.6941 • WWW.LAGUNAPU EBLO-NSN.GOV

. ..Page 2 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 oftime 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