UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 


WASHINGTON, D.C. 20460 


OFFICE OF 

WATER 

Re: Notification of Consultation and Coordination on Draft EPA Guidance Interpreting what 

are "Waters of the United States" 

Dear Honorable Leader: 

The U.S. Environmental Protection Agency (EPA) is initiating consultation and 

coordination with Indian Tribes on draft EPA guidance interpreting what are "waters of the 

United States" that are subject to Clean Water Act (CWA) authority. EPA and the U.S. Army 

Corps of Engineers (Corps) are jointly proposing this draft guidance to clarify how the EPA and 

the Corps understand existing requirements of the CWA and the agencies' implementing 

regulations in light of two Supreme Court decisions concerning the extent of waters covered by 

the Act (Solid Waste Agency of Northern Cook County v. US. Army Corps of Engineers 

(SWANCC) (2001)' and United States v. Rapanos (~a~anos)~'(2006)). 

With this letter, EPA is formally initiating a process to consult with federally-recognized 

Indian tribes. EPA has also invited the Corps to participate in this process. This consultation 

and coordination process will be conducted in accordance with the EPA Policy on Consultation 

and Coordination with Indian Tribes (www.epa.gov/tribal/consuitation/consult-policy.htm).EPA 

invites you and your designated consultation representative(s) to participate in this process. 

Enclosed is a consultation plan for this action that includes a description of the action 

under consultation, and the process EPA intends to follow, including a timeline for the 

consultation and coordination period and information on how you can provide input on this 

action. 

The official EPA contact person for this consultation and coordination process is Felicia 

Wright, Office of Water Tribal Coordinator, at (202) 566-2400, wright.felicia@,epa.gov. Please 

do not hesitate to contact Felicia Wright if you have any questions or would like to request 

alternate arrangements to the process outlined in the consultation plan. 

Nancy K. ~tdner 

Acting Assistant Administrator 

Enclosure 

cc: Tribal Environmental Directors 

Regional Indian Coordinators 

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Consultation Plan 

Background information on this initiative 

Under the Clean Water Act (CWA), permits are required to discharge pollutants, including 

dredged or fill material, into waters of the United States (such as streams, rivers, wetlands, lakes, 

and other waterbodies). If the waters are not considered "waters of the U.S.," no permits-and 

thus no steps to minimize the amount or effects of the fill materials or pollutants-are required 

under the CWA. 

The agencies expect, based on relevant science and recent field experience, that based upon the 

understandings stated in the draft guidance, the extent of waters over which the agencies assert 

CWA jurisdiction will increase compared to the extent of waters over which jurisdiction has 

been asserted under existing guidance. Each jurisdictional determination, however, will be made 

on a case-by-case basis considering the facts and circumstances of the case and consistent with 

applicable statutes, regulations, and case law. 

Potential impacts to tribes 

The agencies understand that decisions concerning whether a waterbody is subject to the CWA 

can ultimately have consequences for tribal, state, and local governments, and for private parties. 

As discussed above, under the draft guidance, the agencies expect an increase in CWA 

jurisdiction compared to the extent of waters over which jurisdiction has been asserted under the 

existing guidance. As a result, businesses and governments that, for example, build homes and 

roads may face increased costs for offsetting the effects of development as part of the permitting 

process. The draft guidance does not change any of the existing agriculture exemptions under 

the CWA. All of the Act's exemptions from permitting requirements for normal agriculture, 

forestry and ranching practices continue to apply. 

The Clean Water Act is one of the Nation's most effective environmental laws, calling for the 

federal government, tribes and states to work together to achieve CWA goals. While Tribes may 

request approval from EPA to administer their own CWA section 402 National Pollutant 

Discharge Elimination System (NPDES) permit program andlor CWA section 404 dredge or fill 

material permit program for discharges into waters of the United States under their jurisdiction; 

to date no tribes have requested approval of a tribal 402 or 404 program. As a result, EPA issues 

NPDES permits and the Corps issues CWA section 404 permits in Indian country, and thus the 

burden for processing more permit applications and conducting associated analyses will 

generally fall on these agencies. 

Please note that the agencies plan to initiate rulemaking to further clarify the jurisdictional scope 

of the Clean Water Act. As part of the rulemaking process, there may be additional decisions 

that impact tribes, and there will be additional tribal consultation and public involvement 

opportunities. 
-- -- 

- - 

Opportunities for tribes to participate 

The table below lays out the process and timeline for governrnent-to-governmentconsultation 

and coordination throughout the consultation process from the date of this letter to July 31,2011. 

Following consultation, EPA will work to finalize the guidance. 

Tribes may also participate in the public review and comment process, such as the public 

announcement teleconference that EPA will hold with tribes upon release of the guidance (see 

below). For more information on the public process see EPA's web site: 

htt~://water.epa.gov/lawsreas/auidance/wetlands/C
 WAwaters.cfm 

EPA will post information for tribes on the Tribal Portal (www.epa.gov/tribal) regarding this 

effort, including specific consultation and coordination opportunities, background information, 

the draft guidance, and response to comments received through tribal consultation and public 

review processes. In addition, you may request to be added to the email listserv that has been 

created for this effort. 

The combined goal for all these efforts is to ensure there is sufficient information for tribal 

officials to make an informed decision about the desire to continue with consultation and to 

understand how to provide informed input. 

May 26,2011 

June 15,2011-

teleconference 

Tribes-only Information 

Webinar 

National Consultation 

teleconference between tribal 

consultation officials and EPA 

senior managers. 

Announcement 

Teleconference time: 3:00 - I 

<

3:30 EDT; i 

Teleconference Call In 3 

Number: 1-877-290-80 17 1 

Conference code: 6 1764173 E 

EPA Contact: Felicia Wright, I 

202-566- 1886 1 

-----a --- --- - - a- -

Webinar time: TBD 

Webinar address and 

telephone information: To be 

posted on www.epa.gov/tribal 

EPA Contact: Felicia Wright, * 

202-566-1 886 "-I _I_-^I.-" 8 

Teleconference time: 1:00 -

2:00 p.m. EDT I 

I 

Teleconference Call-in I 

number: 1-866-299-3 188; 

Conference code: 2025645066 E 

EPA Contact: Felicia Wright, i 

202-566- 1886 i _lli^.~-E1--^l_^l__ll_ll_l~ _A 
- ---- ----we- - 

April 27 - July 31,2011 Posting of all relevant EPA Tribal Portal at 

(Timeframe for Tribal information to EPA Tribal www.epa.nov/tribal 

Consultation) Portal, including written 

responses to questions from L 

tribes. E 

1,531U.S. 159 (2001). 


" Carabell v. U.S. Army Corps of Englrs, 391 F.3d 704 (6" Cir. 2004), Unitedstates v. Rapanos, 376 F.3d 629 (6" 


Cir. 2004). After certiorari was granted, these cases were consolidated, and the resulting opinion cited as Rapanos v. 


United States, 547 U.S. 7 15 (2006).