47430 Federal Register / Vol. 80, No. 152 / Friday, August 7, 2015 / Proposed Rules 

5 In particular, the written request for confidential 

treatment that accompanies the comment must 

include the factual and legal basis for the request, 

and must identify the specific portions of the 

comment to be withheld from the public record. See 

FTC Rule 4.9(c), 16 CFR 4.9(c). 

any ‘‘[t]rade secret or any commercial or 

financial information which is . . . 

privileged or confidential,’’ as discussed 

in Section 6(f) of the FTC Act, 15 U.S.C. 

46(f), and FTC Rule 4.10(a)(2), 16 CFR 

4.10(a)(2). In particular, do not include 

competitively sensitive information 

such as costs, sales statistics, 

inventories, formulas, patterns, devices, 

manufacturing processes, or customer 

names. 

If you want the Commission to give 

your comment confidential treatment, 

you must file it in paper form, with a 

request for confidential treatment, and 

follow the procedure explained in FTC 

Rule 4.9(c), 16 CFR 4.9(c).5 Your 

comment will be kept confidential only 

if the FTC General Counsel, in his or her 

sole discretion, grants your request in 

accordance with the law and the public 

interest. 

Postal mail addressed to the 

Commission is subject to delay due to 

heightened security screening. As a 

result, we encourage you to submit your 

comments online. To make sure that the 

Commission considers your online 

comment, you must file it at http://

ftcpublic.commentworks.com/ftc/

riyocoppaconsent, by following the 

instructions on the web-based form. If 

this Notice appears at http://

www.regulations.gov/#!home, you also 

may file a comment through that Web 

site. 

If you file your comment on paper, 

write ‘‘Jest8 Limited (Trading as Riyo) 

Application for Parental Consent 

Method, Project No. P–155405’’ on your 

comment and on the envelope, and mail 

your comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, 600 Pennsylvania Avenue 

NW., Suite CC–5610 (Annex E), 

Washington, DC 20580, or deliver your 

comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, Constitution Center, 400 7th 

Street SW., 5th Floor, Suite 5610 

(Annex E), Washington, DC 20024. If 

possible, submit your paper comment to 

the Commission by courier or overnight 

service. 

Visit the Commission Web site at 

http://www.ftc.gov to read this Notice 

and the news release describing it. The 

FTC Act and other laws that the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives on or 

before September 3, 2015. For 

information on the Commission’s 

privacy policy, including routine uses 

permitted by the Privacy Act, see 

http://www.ftc.gov/ftc/privacy.htm. 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2015–19425 Filed 8–6–15; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Parts 1, 25, 26, and 301 

[REG–102837–15] 

RIN 1545–BM68 

Guidance Under Section 529A: 

Qualifies ABLE Programs; Correction 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Correction to a notice of 

proposed rulemaking and notice of 

public hearing. 

SUMMARY: This document contains 

corrections to a notice of proposed 

rulemaking and notice of public hearing 

(REG–102837–15) that was published in 

the Federal Register on Monday, June 

22, 2015 (80 FR 35602). The proposed 

regulations under section 529A of the 

Internal Revenue Code that provide 

guidance regarding programs under The 

Stephen Beck, Jr., Achieving a Better 

Life Experience Act of 2014. 

DATES: Written or electronic comments 

and request for a public hearing for the 

notice of proposed rulemaking at 80 FR 

35602, June 22, 2015, are still being 

accepted and must be received by 

September 21, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Taina Edlund or Terri Harris at (202) 

317–4541, or Sean Barnett (202) 317– 

5800, or Theresa Melchiorre (202) 317– 

4643 (not a toll-free number). 

SUPPLEMENTARY INFORMATION: 

Background 

The notice of proposed rulemaking 

that is subject of this document is under 

section 529A of the Internal Revenue 

Code. 

Need for Correction 

As published, the notice of proposed 

rulemaking and notice of public hearing 

(REG–102837–15) contains errors that 

may prove to be misleading and are in 

need of clarification. 

Correction of Publication 

Accordingly, the notice of proposed 

rulemaking and notice of public hearing 

(REG–102837–15) that are subject to FR 

Doc. 2015–15280 are corrected as 

follows: 

1. On page 35603, in the preamble, 

second column, twelfth line, the 

language ‘‘Section 529(d)(2) provides 

that the’’ is corrected to read ‘‘Section 

529A(d)(2) provides that the.’’ 

2. On page 35603, in the preamble, 

second column, nineteenth line, the 

language ‘‘529(d)(3) requires qualified 

ABLE’’ is corrected to read ‘‘529A(d)(3) 

requires qualified ABLE.’’ 

3. On page 35606, in the preamble, 

first column, second line from the 

bottom of the first paragraph, the 

language ‘‘meaning of § 1.529A– 

1(b)(9)(A) or’’ is corrected to read 

‘‘meaning of § 1.529A–1 (b)(9)(i).’’ 

§ 1.529A–1 [Corrected] 

4. On page 35612, second column, 

second and third line from the bottom 

of paragraph (b)(16), the language 

‘‘within the meaning of § 1.529– 

1(b)(9)(A) or § 1.529–2(e)(1)(i) are not 

qualified’’ is corrected to read ‘‘within 

the meaning of § 1.529A–1(b)(9)(i) or 

§ 1.529A–2(e)(1)(i) are not qualified.’’ 

§ 1.529A–7 [Corrected] 

5. On page 35619, third column, 

paragraph (a)(5)(iii) the language 

‘‘furnished though a Web site posting 

and’’ is corrected to read ‘‘furnished 

through a Web site posting and.’’ 

Martin V. Franks, 

Chief, Publications and Regulations Branch, 

Legal Processing Division, Associate Chief 

Counsel (Procedure and Administration). 

[FR Doc. 2015–19369 Filed 8–6–15; 8:45 am] 

BILLING CODE 4830–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 123, 131, 233, 501 

[EPA–HQ–OW–2014–0461; FRL–9930–57– 

OW] 

Revised Interpretation of Clean Water 

Act Tribal Provision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed interpretive rule; 

request for comments. 

SUMMARY: Waters on the majority of 

Indian reservations do not have water 

quality standards under the Clean Water 

Act to protect human health and the 

environment. Only 40 of over 300 

federally recognized tribes with 


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Federal Register / Vol. 80, No. 152 / Friday, August 7, 2015 / Proposed Rules 47431 

reservations have completed the process 

of obtaining EPA’s approval to be 

treated in a manner similar to a state 

(TAS), and adopting standards for their 

waters that EPA has approved. EPA 

proposes to streamline how tribes apply 

for TAS for the water quality standards 

program and other Clean Water Act 

regulatory programs. The proposal 

would reduce the burden on applicant 

tribes and advance cooperative 

federalism by facilitating tribal 

involvement in the protection of 

reservation water quality as intended by 

Congress. Since 1991, EPA has followed 

a cautious approach that requires 

applicant tribes to demonstrate inherent 

authority to regulate waters and 

activities on their reservations under 

principles of federal Indian common 

law. The Agency has consistently stated 

that its approach was subject to change 

in the event of further congressional or 

judicial guidance addressing tribal 

authority under section 518 of the Clean 

Water Act. Having received such 

guidance, EPA proposes to conclude 

definitively that section 518 includes an 

express delegation of authority by 

Congress to eligible Indian tribes to 

administer regulatory programs over 

their entire reservations. This 

reinterpretation would eliminate the 

need for applicant tribes to demonstrate 

inherent authority to regulate under the 

Act, thus allowing tribes to implement 

the congressional delegation of 

authority unhindered by requirements 

not specified in the statute. The 

reinterpretation would also bring EPA’s 

treatment of tribes under the Clean 

Water Act in line with EPA’s treatment 

of tribes under the Clean Air Act, which 

has similar statutory language 

addressing tribal regulation of Indian 

reservation areas. This action would not 

revise any regulatory text. Regulatory 

provisions would remain in effect 

requiring tribes to identify the 

boundaries of the reservation areas over 

which they seek to exercise authority 

and allowing the adjacent state(s) to 

comment to EPA on an applicant tribe’s 

assertion of authority. As a streamlining 

step, the proposed interpretive rule 

would have no significant cost. 

DATES: EPA must receive comments on 

this proposal on or before October 6, 

2015. EPA will discuss this proposed 

rule and answer questions about it in a 

webinar during the above comment 

period. If you are interested, see EPA’s 

Web site at http://water.epa.gov/scitech/ 

swguidance/standards/wqslibrary/

tribal.cfm for the date and time of the 

webinar and instructions on how to 

register and participate. Additionally, 

under the Paperwork Reduction Act, 

any comments on the information 

collection provisions of this proposal 

are best assured of having full effect if 

the Office of Management and Budget 

receives a copy of your comments on or 

before September 8, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OW–2014–0461, by one of the following 

methods: 

• http://www.regulations.gov: Follow 

the online instructions for submitting 

comments. 

• Email: ow-docket@epa.gov. 

• Fax: 202–566–0409 

• Mail: Water Docket, Environmental 

Protection Agency, Mail Code 2822T, 

1200 Pennsylvania Ave. NW., 

Washington, DC 20460. Attention: 

Docket ID No. EPA–HQ–OW–2014– 

0461. In addition, please mail a copy of 

your comments on the information 

collection provisions to the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, Attn: 

Desk Officer for EPA, 725 17th St. NW., 

Washington, DC 20503. 

• Hand Delivery: EPA Docket Center, 

EPA West Room 3334, 1301 

Constitution Ave. NW., Washington, DC 

20004, Attention: Docket ID No. EPA– 

HQ–OW–2014–0461. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation. Please make 

special arrangements for deliveries of 

boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OW–2014– 

0461. EPA’s policy is to include all 

comments received in the public docket 

without change and make them 

available online at http://

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http://

www.regulations.gov or email. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through http://

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disc you submit. If EPA cannot read 

your comment due to technical 

difficulties and cannot contact you for 

clarification, EPA might not be able to 

consider your comment. Electronic files 

should avoid the use of special 

characters, any form of encryption, and 

be free of any defects or viruses. For 

additional information about EPA’s 

public docket visit the Docket Center 

homepage at http://www.epa.gov/

epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http://

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available (e.g., CBI or other 

information whose disclosure is 

restricted by statute). Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http://

www.regulations.gov or in hard copy at 

the Office of Water Docket Center, EPA/ 

DC, EPA West, Room 3334, 1301 

Constitution Ave. NW., Washington, DC 

20004. This Docket Facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744; the 

telephone number for the Office of 

Water Docket Center is (202) 566–2426. 

FOR FURTHER INFORMATION CONTACT: Fred 

Leutner, Standards and Health 

Protection Division, Office of Science 

and Technology (4305T), Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460; 

telephone number: (202) 566–0378; fax 

number: (202) 566–0409; email address: 

TASreinterpretation@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. What should I consider as I prepare my 

comments for EPA? 

1. Resubmitting Relevant Comments From 

Consultations and Listening Sessions 

2. Submitting CBI 

3. Tips for Preparing Your Comments 

II. What is the statutory and regulatory 

history of the CWA TAS provision? 

A. Statutory History 

B. Regulatory History 

III. How did EPA interpret the CWA TAS 

provision when establishing TAS 

regulations for CWA regulatory 

programs? 

IV. What developments support EPA’s 

proposed statutory reinterpretation? 

A. Relevant Congressional, Judicial and 

Administrative Developments 

B. EPA and Tribal Experience in 

Processing TAS Applications for CWA 

Regulatory Programs 


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C. Request for Reinterpretation From 

Tribes 

V. How does EPA propose to reinterpret the 

CWA TAS provision? 

A. Statement of Proposal 

B. Geographic Scope of TAS for Regulatory 

Programs 

C. Treatment of Tribal Trust Lands 

D. Tribal Criminal Enforcement Authority 

E. Special Circumstances 

F. Tribal Inherent Regulatory Authority 

G. Existing Regulatory Requirements 

VI. How would the proposed change in 

interpretation affect existing EPA 

guidance to tribes seeking to administer 

CWA regulatory programs? 

VII. What are the anticipated effects of the 

proposed reinterpretation? 

A. Effects on Tribes That EPA Has 

Previously Found Eligible for TAS 

B. Effects on New Tribal Applications 

C. Effects on EPA-Approved State 

Programs 

VIII. Economic Analysis 

IX. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. General Information 

A. Does this action apply to me? 

This action applies to tribal 

governments that seek eligibility to 

administer regulatory programs under 

the Clean Water Act (CWA, or the Act). 

The table below provides examples of 

entities that could be affected by this 

action or have an interest in it. 

Category Examples of potentially affected or interested entities 

Tribes .............................................. Federally recognized tribes with reservations that could potentially seek eligibility to administer CWA regulatory programs, and other interested tribes. 

States .............................................. States adjacent to potential applicant tribes. 

Industry ........................................... Industries discharging pollutants to waters within or adjacent to reservations of potential applicant tribes. 

Municipalities ................................... Publicly owned treatment works or other facilities discharging pollutants to waters within or adjacent to reservations of potential applicant tribes. 

If you have questions regarding the 

effect of this proposed action on a 

particular entity, please consult the 

person listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

B. What should I consider as I prepare 

my comments for EPA? 

1. Resubmitting Relevant Comments 

from Consultations and Listening 

Sessions. EPA held multiple 

consultations and listening sessions 

with tribes and states concerning the 

issue addressed in this proposed action, 

and considered views and comments 

received from these sessions in 

developing this proposal. The proposed 

rule has evolved from the materials EPA 

shared at the time. Therefore, if you 

submitted comments based on these 

sessions and wish for EPA to consider 

them as part of the public comment 

opportunity for this proposed action, 

you must resubmit your comments to 

EPA in accordance with the instructions 

outlined in this document. 

2. Submitting CBI. Do not submit CBI 

information to EPA through http://

www.regulations.gov or email. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disc that you mail to 

EPA, mark the outside of the disc as CBI 

and then identify electronically within 

the disc the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. EPA will not disclose 

information so marked except in 

accordance with procedures set forth in 

40 Code of Federal Regulations (CFR) 

part 2. 

3. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the proposed action by 

docket number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Explain why you agree or disagree, 

suggest alternatives, and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible. 

• Submit your comments by the date 

shown in the DATES section of this 

notice. 

II. What is the statutory and regulatory 

history of the CWA TAS provision? 

A. Statutory History 

Congress added CWA section 518, 33 

U.S.C. 1377, as part of amendments 

made in 1987. Section 518(e) authorizes 

EPA to treat eligible Indian tribes in the 

same manner as it treats states for a 

variety of purposes, including 

administering each of the principal 

CWA regulatory programs and receiving 

grants under several CWA funding 

authorities. Section 518(e) is commonly 

known as the ‘‘TAS’’ provision, for 

treatment in a similar manner as a state. 

Section 518(e) establishes eligibility 

criteria for TAS, including requirements 

that the tribe have a governing body 

carrying out substantial governmental 

duties and powers; that the functions to 

be exercised by the tribe pertain to the 

management and protection of water 

resources within the borders of an 

Indian reservation; and that the 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. Section 518(e) 

also requires EPA to promulgate 

regulations specifying the TAS process 

for applicant tribes. See section II.B. 

Section 518(h) defines ‘‘Indian tribe’’ 

to mean any Indian tribe, band, group, 

or community recognized by the 

Secretary of the Interior and exercising 

governmental authority over a federal 

Indian reservation. It defines ‘‘federal 

Indian reservation’’ to mean all land 

within the limits of any reservation 

under the jurisdiction of the United 

States Government, notwithstanding the 

issuance of any patent, and including 

rights-of-way running through the 

reservation. 


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1Under the CWA and EPA’s regulations, tribes 

can apply for TAS under CWA section 518 for the 

purpose of administering WQS and simultaneously 

submit actual standards for EPA review under 

section 303(c). Although they can proceed together, 

a determination of TAS eligibility and an approval 

of actual water quality standards are two distinct 

actions. 

2EPA has promulgated regulations governing the 

TAS application and review requirements for CWA 

grant funding programs. See, e.g., 40 CFR 35.580– 

588 (CWA section 106 water pollution control 

funding); 40 CFR 35.600–615 (CWA section 104 

water quality cooperative agreements and wetlands 

development funding); 40 CFR 35.630–638 (CWA 

section 319 nonpoint source management grants). 

3Tribal ‘‘regulatory authority’’ in this proposal 

refers to civil regulatory authority. See section V.D. 

for a discussion of tribal criminal enforcement 

authority. 

B. Regulatory History 

Pursuant to section 518(e), EPA 

promulgated several final regulations 

establishing TAS criteria and 

procedures for Indian tribes interested 

in administering programs under the 

Act. The relevant regulations addressing 

TAS requirements for the principal 

CWA regulatory programs are: 

• 40 CFR 131.8 for section 303(c) 

water quality standards (WQS). Final 

rule published December 12, 1991 (56 

FR 64876); proposed rule published 

September 22, 1989 (54 FR 39098). 

Referred to hereafter as the ‘‘1991 WQS 

TAS rule’’ or ‘‘1991 TAS rule’’; 

• 40 CFR 131.4(c) for section 401 

water quality certification, published in 

the 1991 WQS TAS rule; 

• 40 CFR 123.31–34 for section 402 

National Pollutant Discharge 

Elimination System (NPDES) permitting 

and other provisions, and 40 CFR 

501.22–25 for the state sewage sludge 

management program. Final rule 

published December 22, 1993 (58 FR 

67966); proposed rule published March 

10, 1992 (57 FR 8522); and 

• 40 CFR 233.60–62 for section 404 

dredge or fill permitting. Final rule 

published February 11, 1993 (58 FR 

8172); proposed rule published 

November 29, 1989 (54 FR 49180). 

In 1994, EPA amended the above 

regulations to simplify the TAS process 

and eliminate unnecessary and 

duplicative procedural requirements. 

See 59 FR 64339 (December 14, 1994) 

(the ‘‘Simplification Rule’’). For 

example, the Simplification Rule 

eliminated the need for a tribe to 

prequalify for TAS before applying for 

section 402 and section 404 permitting 

programs. Instead, the rule provided 

that a tribe would establish its TAS 

eligibility at the program approval stage, 

subject to EPA’s notice and comment 

procedures already established for state 

program approvals in 40 CFR parts 123 

and 233. The rule retained the 

prequalification requirements 

(including local notice and comment 

procedures) for section 303(c) WQS and 

section 401 water quality certifications. 

Id.; see also, 40 CFR 131.8(c)(2), (3).1

The TAS regulations for CWA 

regulatory programs have remained 

intact since promulgation of the 

Simplification Rule. 

This proposed action would not 

address or affect the TAS requirements 

or review process for tribes to receive 

grants.2 The receipt of grant funding 

does not involve 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. 

III. How did EPA interpret the CWA 

TAS provision when establishing TAS 

regulations for CWA regulatory 

programs? 

In the 1991 WQS TAS rule, which 

addressed TAS for the WQS and 

certification programs, EPA explained 

that tribes must meet four criteria to be 

approved for TAS eligibility. 

Specifically, an applicant tribe must: (1) 

Be federally recognized, (2) carry out 

substantial governmental duties and 

powers over a ‘‘Federal Indian 

reservation’’ as defined in CWA section 

518(h)(1), (3) have appropriate authority 

to regulate the quality of reservation 

waters, and (4) be reasonably expected 

to be capable of administering the CWA 

program. 54 FR at 39101. 

The third of the criteria—regulatory 

authority—is the sole focus of the 

proposed change in statutory 

interpretation. This proposal would not 

affect the other TAS criteria or tribal 

application requirements relating to 

those criteria. 

With regard to regulatory authority,3

EPA carefully analyzed section 518 and 

the then-current state of judicial 

precedent to assess whether Congress 

had intended to delegate regulatory 

authority to eligible Indian tribes to 

administer CWA regulatory programs 

throughout their entire reservations, 

including over lands owned by 

nonmembers of the tribe within a 

reservation. 56 FR at 64879–81. EPA 

noted significant support in the CWA 

and its legislative history for the 

conclusion that Congress had in fact 

delegated such authority. Id. Section 

518(e) requires only that the functions 

to be exercised by the applicant Indian 

tribe pertain to the management and 

protection of water resources that are 

‘‘within the borders of an Indian 

reservation.’’ Section 518(h)(1) 

expressly defines Indian reservations as 

‘‘all land within the limits of any Indian 

reservation . . . notwithstanding the 

issuance of any patent, and including 

rights-of-way running through the 

reservation.’’ 

EPA specifically noted the import of 

language in Brendale v. Confederated 

Tribes and Bands of the Yakima Nation, 

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

White (with three additional Justices 

joining) identified CWA sections 518(e) 

and (h)(1) as an express delegation of 

authority to tribes, including authority 

over the activities of non-tribal members 

on their lands within a reservation. 56 

FR at 64879–80. EPA agreed with 

commenters on the proposed rule that 

Justice White’s opinion indicated that at 

least four Supreme Court Justices would 

interpret the plain language of section 

518 as an express delegation of 

regulatory authority. Id. 

At the same time EPA recognized that 

Justice White’s opinion was not a 

majority opinion of the Supreme Court 

(the other five Justices did not opine on 

the issue) and that the interpretation of 

CWA section 518 was not actually 

before the Court in Brendale. Id. EPA 

also noted that while there were 

significant statements in the legislative 

history of section 518 supporting 

congressional intent to delegate 

authority to eligible tribes, the 

legislative history standing alone was 

insufficiently clear to confirm 

definitively such intent. Id. at 64879–81. 

EPA was also mindful that three 

members of Congress had submitted 

comments in connection with the 

proposed TAS rule stating their 

respective views that Congress did not 

intend to expand the scope of tribal 

authority over non-Indians on the 

reservation by passage of section 518. 

Id. Although EPA observed that 

subsequent statements by members of 

Congress must be treated cautiously and 

do not supplement the statute’s 

legislative history, EPA carefully 

considered the commenters’ views in 

forming its initial approach to tribal 

regulatory authority under the CWA. 

Ultimately, EPA took a cautious 

approach in the 1991 TAS rule and 

stated it would await further 

congressional or judicial guidance on 

the extent to which section 518 is 

properly interpreted as an express 

congressional delegation of authority. 

Id. at 64877–81. EPA specifically stated 

the Agency’s interpretation that in 

section 518, Congress had expressed a 

preference for tribal regulation of 

surface water quality on reservations to 

ensure compliance with the goals of the 

CWA. Id. at 64878–79. However, until 

such time as EPA revisited the issue, the 

Agency determined it would require 


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4The site http://water.epa.gov/scitech/

swguidance/standards/wqslibrary/approvtable.cfm 

provides a list of tribes approved for section 303(c) 

water quality standards and section 401 water 

quality certification. To date, EPA has not approved 

TAS for any tribe for CWA section 402 or section 

404 permitting. 

5EPA was also upheld in the only case 

challenging the Agency’s approval of actual tribal 

water quality standards under CWA section 303(c) 

(which is a distinct action from EPA’s approval of 

tribal TAS eligibility under section 518). City of 

Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 

1996), cert. denied, 522 U.S. 965 (1997) (water 

quality standards of Isleta Pueblo). 

applicant Indian tribes to demonstrate, 

on a case-by-case basis, their inherent 

authority under existing principles of 

federal Indian law to regulate activities 

under the CWA. Id. at 64880–81. 

EPA’s approach required an applicant 

tribe to demonstrate its inherent tribal 

authority over the activities of non-tribal 

members on lands they own in fee 

within a reservation (‘‘nonmember fee 

lands’’) under the principles of Montana 

v. United States, 450 U.S. 544 (1981), 

and its progeny. Montana held that 

absent a federal grant of authority, tribes 

generally lack inherent jurisdiction over 

nonmember activities on nonmember 

fee lands, but retain inherent civil 

jurisdiction over nonmember activities 

within the reservation where (i) 

nonmembers enter into ‘‘consensual 

relationships with the tribe or its 

members, through commercial dealing, 

contracts, leases, or other arrangements’’ 

or (ii) ‘‘. . . [nonmember] conduct 

threatens or has some direct effect on 

the political integrity, the economic 

security, or the health or welfare of the 

tribe.’’ Id. at 565–566; the ‘‘Montana 

test.’’ 

EPA noted that in applying the 

second prong of the Montana test and 

assessing the impacts of nonmember 

activities on a tribe, EPA will rely upon 

an operating rule that evaluates whether 

the potential impacts of regulated 

activities on the tribe are serious and 

substantial. 56 FR at 64878–79. EPA 

recognized that the analysis of whether 

the Montana test is met in a particular 

situation depends on the specific 

circumstances presented by the tribe’s 

application. Id. at 64878. Thus, EPA’s 

approach to the second prong of the 

Montana test involves a fact-specific 

inquiry to determine whether the tribe 

has shown that existing and potential 

nonmember activities within the 

reservation affecting water quality have 

or could have serious and substantial 

direct impacts on the political integrity, 

economic security, or health or welfare 

of the tribe. 

EPA adopted an identical approach 

and reasoning regarding tribal inherent 

regulatory authority in its subsequent 

TAS regulations (see list of regulations 

in section II.B). In these rules, EPA 

restated that the question of whether 

section 518 delegated authority to tribes 

to administer CWA regulatory programs 

on their reservations was unresolved 

and remained subject to additional 

consideration in light of subsequent 

congressional or judicial guidance. See, 

e.g., 58 FR at 8173–76; 58 FR at 67971, 

67975–76. 

IV. What developments support EPA’s 

proposed statutory reinterpretation? 

A. Relevant Congressional, Judicial and 

Administrative Developments 

EPA has taken final action approving 

TAS for CWA regulatory programs for 

50 tribes since the 1991 WQS TAS rule.4

Three of those decisions were 

challenged in judicial actions. The last 

challenge concluded in 2002. In each of 

the cases, the reviewing court upheld 

EPA’s determination with respect to the 

applicant tribe’s inherent authority to 

regulate under the CWA. Wisconsin v. 

EPA, 266 F.3d 741 (7th Cir. 2001), cert. 

denied, 535 U.S. 1121 (2002) (Sokaogon 

Chippewa Community); Montana v. 

EPA, 137 F.3d 1135 (9th Cir.), cert. 

denied, 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).5

As noted in section III’s discussion of 

the 1991 TAS rule, EPA was mindful of 

the statement in Brendale indicating 

that Justice White and the three other 

Supreme Court Justices joining his 

plurality opinion viewed CWA section 

518 as an express congressional 

delegation of authority to Indian tribes. 

56 FR at 64889 (citing Brendale, 492 

U.S. at 428). EPA also recognized, 

however, that the statement regarding 

section 518 was not necessary to the 

plurality’s decision; nor was it based on 

an analysis of the relevant CWA 

legislative history, which, as EPA noted, 

was inconclusive on the issue. Id. EPA 

thus opted to proceed with a cautious 

initial approach to tribal regulatory 

authority under the CWA, and await 

further developments that could guide 

the proper interpretation of section 518. 

Since the 1991 TAS rule, there have 

been significant developments 

supporting the interpretive change EPA 

proposes. Notably, the first court to 

review a challenge to an EPA CWA TAS 

approval expressed the view that the 

statutory language of section 518 

indicated plainly that Congress 

intended to delegate authority to Indian 

tribes to regulate their entire 

reservations, including regulation of 

non-Indians on fee lands within a 

reservation. Montana v. EPA, 941 F. 

Supp. 945, 951–52 (D. Mont. 1996), 

aff’d, 137 F.3d 1135 (9th Cir.), cert. 

denied, 525 U.S. 921 (1998). In that 

case, the applicant tribe, participating as 

amicus, argued that the definition of 

‘‘federal Indian reservation’’ in CWA 

section 518(h)(1)—which expressly 

includes all land within the limits of a 

reservation notwithstanding the 

issuance of any patent—combined with 

the bare requirement of section 518(e) 

that the functions to be exercised by the 

applicant tribe pertain to reservation 

water resources, demonstrates that 

section 518 provides tribes with 

delegated regulatory authority over their 

entire reservations, including over nonIndian reservation lands. Id. Because 

EPA premised its approval of the TAS 

application at issue upon a showing of 

inherent tribal authority, it was 

unnecessary for the district court to 

reach the delegation issue as part of its 

holding in the case. Nonetheless, the 

court readily acknowledged that section 

518 is properly interpreted as an express 

congressional delegation of authority to 

Indian tribes over their entire 

reservations. The court noted that the 

legislative history might be ambiguous, 

although only tangentially so, since the 

bulk of the legislative history relates to 

the entirely separate issue of whether 

section 518(e) pertains to non-Indian 

water quantity rights, which it does not. 

Id. The court observed the established 

principle that Congress may delegate 

authority to Indian tribes—per United 

States v. Mazurie, 419 U.S. 544 (1975)— 

and commented favorably on Justice 

White’s statement regarding section 518 

in Brendale. Id. The court also noted 

that a congressional delegation of 

authority to tribes over their entire 

reservations ‘‘comports with common 

sense’’ to avoid a result where an 

interspersed mixing of tribal and state 

WQS could apply on a reservation 

depending on whether the waters 

traverse or bound tribal or non-Indian 

reservation land. Id. Having thus 

analyzed CWA section 518, the court 

concluded—albeit in dicta—that 

Congress had intended to delegate such 

authority to Indian tribes over their 

entire reservations. 

The TAS provision of a separate 

statute—the Clean Air Act (CAA)— 

provides additional relevant insight into 

congressional intent. Congress added 

the CAA TAS provision—section 

301(d)—to the statute in 1990, only 

three years after it enacted CWA section 

518. Although CAA section 301(d) predates EPA’s 1991 CWA TAS rule, it was 


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6The dissent in APS also concluded that a 

separate provision of the CAA—section 110(o)— 

expressly delegates authority to eligible Indian 

tribes over their entire reservations for the specific 

CAA program established in that provision. Id. at 

1301–02. Section 110(o) includes the key language 

cited by the dissent as indicative of express 

congressional delegations of authority to tribes over 

their reservations. Id. 

not until 1998 that EPA promulgated its 

regulations interpreting the CAA TAS 

provision as an express congressional 

delegation of authority to eligible Indian 

tribes. The U.S. Court of Appeals for the 

DC Circuit upheld that interpretation 

two years later. Arizona Public Service 

Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 

2000) (‘‘APS’’), cert. denied, 532 U.S. 

970 (2001). Viewed in light of the 

court’s careful review, the CAA TAS 

provision provides useful guidance 

regarding Congress’ understanding of 

the importance of uniform tribal 

regulation of mobile environmental 

pollutants within reservations. Further, 

that understanding can fairly be traced 

back to the 1987 enactment of CWA 

section 518. Each statute must, of 

course, be viewed in light of its own 

language and history. Relevant aspects 

of EPA’s interpretation of the CAA TAS 

provision are described below. 

EPA finalized its regulations 

implementing CAA section 301(d) in 

1998. 40 CFR part 49; 63 FR 7254 

(February 12, 1998) (the ‘‘CAA Tribal 

Authority Rule’’). The CAA TAS 

provision, combined with the definition 

of Indian tribe in CAA section 302(r), 

established the same basic TAS 

eligibility criteria for CAA purposes that 

apply under the CWA: i.e., federal 

recognition, tribal government carrying 

out substantial duties and powers, 

jurisdiction, and capability. With regard 

to jurisdiction, EPA carefully analyzed 

the language and legislative history of 

the relevant portion of the CAA TAS 

provision, CAA section 301(d)(2)(B), 

and concluded that Congress had 

intended to delegate authority to eligible 

Indian tribes to administer CAA 

regulatory programs over their entire 

reservations irrespective of land 

ownership—e.g., including over 

nonmember fee lands within the 

reservation. 63 FR at 7254–57. EPA 

determined that the language of the 

provision distinguished between 

reservation and non-reservation areas 

over which tribes could seek TAS 

eligibility and plainly indicated 

Congress’ intent that reservations will 

be under tribal jurisdiction. Id. By 

contrast, for non-reservation areas tribes 

would need to demonstrate their 

inherent authority to regulate under 

principles of federal Indian law. Id. 

EPA noted at that time important 

similarities between the CAA and CWA 

TAS provisions. Most notably, the tribal 

provisions of both statutes expressly 

provided eligibility for tribal programs 

that pertain to the management and 

protection of environmental resources 

(i.e., air and water, respectively) located 

on Indian reservations. Id. at 7256. For 

instance, CAA section 301(d) provides 

for tribal regulation of air resources 

‘‘within the exterior boundaries of the 

reservation’’ without any requirement 

for a demonstration by applicant tribes 

of separate authority over such 

reservation areas. CAA section 

301(d)(2)(B). Similarly, CWA section 

518 provides eligibility for tribal 

programs covering water resources 

‘‘within the borders of an Indian 

reservation’’ and expressly defines 

Indian reservations to include all land 

within the reservation notwithstanding 

the issuance of any patent and including 

rights-of-way. CWA sections 518(e)(2), 

(h)(1). By their plain terms, both statutes 

thus treat reservation lands and 

resources the same way and set such 

areas aside for tribal programs. At the 

time EPA promulgated the CAA Tribal 

Authority Rule, however, EPA viewed 

the CAA—which also contained other 

provisions addressing tribal roles—and 

its legislative history as more 

conclusively demonstrating 

congressional intent to delegate 

authority to eligible tribes over their 

reservations. Id. EPA recognized that 

this resulted in different approaches to 

two similar TAS provisions and 

reiterated that the question remained as 

to whether the CWA provision is also an 

express delegation of authority to 

eligible tribes. Id. EPA also cited to the 

district court decision in Montana v. 

EPA, which, as noted above, concluded 

that CWA section 518 plainly appears to 

delegate such authority to Indian tribes. 

Id. 

Several parties petitioned for judicial 

review of the CAA Tribal Authority 

Rule and challenged whether CAA 

section 301(d) could be properly 

interpreted as a delegation of authority 

by Congress to eligible Indian tribes. 

APS, 211 F.3d at 1287–92. The D.C. 

Circuit carefully analyzed CAA section 

301(d), the relevant legislative history, 

and the judicial precedent on 

delegations of authority to Indian tribes 

and concluded that EPA’s interpretation 

comported with congressional intent. Id. 

The court acknowledged the similarities 

between the CAA and CWA TAS 

provisions, as well as EPA’s different 

approach under the CWA. Id. at 1291– 

92. However, the court also 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 section 518 plainly 

indicates congressional 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 EPA must do so again under the 

CAA. Id. 

A dissenting judge in the APS case 

disagreed that CAA section 301(d)(2)(B) 

expressed congressional intent to 

delegate authority to tribes over their 

reservations. Id. at 1301–05. Notably, 

the dissent’s view was predicated 

largely on the absence in section 

301(d)(2)(B) of language explicitly 

describing the reservation areas over 

which tribes would exercise CAA 

jurisdiction as including all reservation 

lands notwithstanding the issuance of 

any patent and including rights-of-way 

running through the reservation 

(emphasis added). Id. The dissent 

viewed this language as critical to an 

expression of congressional intent that 

tribes are to exercise delegated authority 

over all reservation lands, including 

lands owned by nonmembers of the 

tribes. Id. And in the absence of such 

language—which the dissent referred to 

as ‘‘the gold standard for such 

delegations’’—the dissent did not view 

CAA section 301(d)(2)(B) as expressing 

Congress’ intent to relieve tribes of the 

need to demonstrate their inherent 

authority to regulate under the CAA, 

including a demonstration of inherent 

authority over nonmember activities on 

fee lands under the Supreme Court’s 

Montana test. Id. at 1303–04.6 Notably, 

the dissent observed that the key 

‘‘notwithstanding’’ language is, in fact, 

included in the relevant tribal 

provisions of the CWA—i.e., in the 

definition of ‘‘federal Indian 

reservation’’ in CWA section 518(h)(1). 

Id. at 1302 (referencing Brendale, 492 

U.S. at 428). The dissent noted that in 

spite of the statement in Brendale, EPA 

had determined not to treat CWA 

section 518 as a congressional 

delegation; however, the dissent also 

observed that no court had yet resolved 

the issue. Id. 

As the D.C. Circuit stated in APS, no 

court has yet reviewed EPA’s 

interpretation of tribal regulation under 

the CWA on the question of whether 

CWA section 518 constitutes an express 

delegation of authority from Congress to 

eligible Indian tribes to regulate water 

resources throughout their reservations. 

Importantly, members of the three 

courts that have considered the issue 

have favorably viewed such an 

interpretation: The U.S. Supreme Court 


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7For more information on the National Tribal 

Water Council, see http://

nationaltribalwatercouncil.org/. 

8Equal Treatment for Tribes in Seeking Eligibility 

under EPA Regulatory Programs, unsigned undated 

document, National Tribal Water Council, provided 

to the Office of Water in April 2013. Available at 

the above site. 

9 In addition to demonstrating their inherent 

regulatory authority, a number of tribes that have 

previously applied for TAS to administer CWA 

regulatory programs have asserted in their 

applications their view that CWA section 518 

constitutes an express delegation of authority from 

Congress. Although EPA has not previously relied 

on that approach in its TAS decisions, it is 

noteworthy that tribes have expressed this legal 

interpretation in prior applications. 

in Brendale, the federal district court in 

Montana v. EPA, and the D.C. Circuit in 

APS. 

In light of these developments, as well 

as EPA’s experience administratively 

interpreting and implementing the CAA 

TAS provision, it is appropriate to 

revisit and revise EPA’s approach to 

TAS under the CWA. In the preambles 

to the CWA TAS regulations from the 

1990s, EPA discussed the possibility of 

reinterpreting CWA section 518 as an 

express congressional delegation of 

authority to tribes based on subsequent 

congressional or judicial guidance. The 

proposed action would accomplish such 

a reinterpretation. 

B. EPA and Tribal Experience in 

Processing TAS Applications for CWA 

Regulatory Programs 

Based on EPA’s experience to date, 

the TAS application process has become 

significantly more burdensome than 

EPA anticipated in 1991. Many 

authorized tribes have informed EPA 

that the demonstration of inherent tribal 

authority, including application of the 

Montana test, constituted the single 

greatest administrative burden in their 

application processes. 

In the 1991 TAS rule, EPA expressed 

its expert view that given the 

importance of surface water to tribes 

and their members, the serious nature of 

water pollution impacts, and the 

mobility of pollutants in water, 

applicant Indian tribes would generally 

be able to demonstrate inherent 

regulatory authority to set WQS for 

reservation waters, including as applied 

to nonmembers on fee lands under 

federal Indian law principles. Id. at 

64877–79. In light of the Agency’s 

generalized findings regarding the 

relationship of water quality to tribal 

health and welfare, EPA noted that a 

tribe could likely meet the Montana test 

by making a relatively simple factual 

showing that (1) there are waters within 

the subject reservation used by the tribe 

or its members, (2) the waters are 

subject to protection under the CWA, 

and (3) impairment of the waters by 

nonmember activities on fee lands 

would have serious and substantial 

effects on tribal health and welfare. Id. 

at 64879. 

EPA thus anticipated in the early 

1990s that applicant tribes would face a 

relatively simple initial burden of 

supplying basic facts to demonstrate 

that they retain requisite inherent 

authority to regulate under the CWA— 

including regulation of nonmember 

activities on fee lands—under 

established federal Indian law 

principles. Id. 

Unfortunately, EPA’s expectations 

have not, as a general matter, been 

realized. Although each TAS 

application has varied according to the 

particular facts and circumstances of the 

applicant tribe and its reservation, the 

general experience confirms that 

demonstrations of inherent regulatory 

authority continue to impose 

unintended administrative hurdles on 

applicant tribes and to require 

substantial commitments of limited 

tribal and federal resources. In 

particular, the demonstration of 

inherent authority over nonmember 

activities on the reservation under the 

so-called Montana test has created the 

most significant and widespread burden 

and at the same time provides no 

information necessary for EPA’s 

oversight of the regulatory program. 

Tribes have repeatedly expressed their 

concern that the demonstration of 

inherent authority on a case-by-case 

basis is challenging, time consuming 

and costly. EPA’s information on the 50 

tribes that it has found eligible to 

administer WQS and section 401 

certifications indicates that tribal 

applications for reservations with 

nonmember fee lands, which require an 

analysis of tribal inherent authority 

under Montana, took 1.6 years longer to 

be approved, on average, than 

applications for reservations without 

such lands. 

The elimination of such unintended 

administrative burdens does not, in 

itself, provide a legal rationale to alter 

EPA’s interpretation of section 518. 

However, streamlining a TAS process 

that has become unnecessarily 

restrictive and burdensome does offer a 

strong policy basis for the Agency to 

take a careful second look at that 

provision and to consider—as it 

contemplated as early as 1991—whether 

intervening events have shed additional 

light on the appropriate statutory 

interpretation. Eliminating such 

unnecessary burdens is consistent with 

longstanding EPA and Executive policy 

to support tribal self-determination and 

promote and streamline tribal 

involvement in managing and regulating 

their lands and environments. See, e.g., 

Executive Order 13175 (65 FR 67249, 

November 9, 2000); Presidential 

Memorandum: Government-toGovernment Relations with Native 

American Tribal Governments (59 FR 

22951, April 29, 1994); EPA Policy for 

the Administration of Environmental 

Programs on Indian Reservations 

(November 8, 1984). 

As explained in section III, EPA has 

long interpreted the CWA as expressing 

Congress’ preference for tribal 

regulation of reservation surface water 

quality. See, e.g., 56 FR at 64878. As 

explained in section IV, developments 

subsequent to the 1991 TAS rule 

definitively confirm that section 518 

includes an express delegation of 

authority by Congress to eligible tribes 

to regulate water resources under the 

CWA throughout their entire 

reservations. 

C. Request for Reinterpretation from 

Tribes 

In April 2013, the National Tribal 

Water Council 7 expressed its concern in 

a document submitted to EPA’s Office of 

Water 8 that ‘‘[c]urrently, EPA does not 

treat tribes and states in the same 

manner even though it has the authority 

to do so under section 518(e)(2) of the 

CWA.’’ The Council further stated that 

‘‘reliance on a jurisdictional showing 

before granting tribal regulatory 

authority has prevented many tribes 

from establishing federally approved 

WQS for the waters of their reservations. 

This has left a significant portion of 

Native American communities without 

the protection of the CWA to safeguard 

their water resources.’’ The Council 

encouraged EPA to consider 

reinterpreting the CWA TAS provision 

as an express delegation of 

congressional authority as it did with 

the similar provision of the CAA and to 

remove the requirement for tribes to 

show their inherent authority.9

V. How does EPA propose to reinterpret 

the CWA TAS provision? 

A. Statement of Proposal 

Based on the analysis in sections III 

and IV above, EPA proposes to revise its 

interpretation of CWA section 518 and 

conclude definitively that Congress 

expressly delegated authority to Indian 

tribes to administer CWA regulatory 

programs over their entire reservations, 

including over nonmember activities on 

fee lands within the reservation of the 

applicant tribe, subject to the eligibility 

requirements in section 518. In doing 

so, EPA thus proposes to exercise the 


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10 Indian country is defined at 18 U.S.C. 1151 as: 

(a) All land within the limits of any Indian 

reservation under the jurisdiction of the United 

States Government, notwithstanding the issuance of 

any patent, and, including rights-of-way running 

through the reservation; (b) all dependent Indian 

communities within the borders of the United 

States whether within the original or subsequently 

acquired territory thereof, and whether within or 

without the limits of a state; and (c) all Indian 

allotments, the Indian titles to which have not been 

extinguished, including rights-of-way running 

through the same. Indian reservations are thus a 

subset of the broader geographic area that comprises 

Indian country as a whole. 

11Many tribes have rights to hunt, fish, 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. 

12EPA takes no position in this proposal 

regarding whether any particular tribe or Indian 

reservation is subject to any potential impediment 

relating to the effectuation of the congressional 

delegation of regulatory authority or how the CWA 

can be interpreted vis-a`-vis the alleged source of 

any such impediment. Any such issue would need 

to be addressed on a case-by-case basis and with the 

benefit of a full record of relevant information that 

would be developed during the processing of a 

particular TAS application. To the extent EPA is 

ever called upon to make a decision regarding this 

type of issue, such a decision would be rendered 

in the context of EPA’s final action on a specific 

TAS application, and any judicial review of that 

decision would occur in that context. 

authority entrusted to it by Congress to 

implement the CWA TAS provision. 

EPA’s revised interpretation is, most 

importantly, expressed in the language 

of section 518. Section 518(e)(2) 

requires only that the functions to be 

exercised by the applicant Indian tribe 

pertain to the management and 

protection of water resources ‘‘within 

the borders of an Indian reservation.’’ 

Section 518(h)(1) then defines the term 

‘‘federal Indian reservation’’ to include 

all lands within the limits of any Indian 

reservation notwithstanding the 

issuance of any patent, and including 

rights-of-way running through the 

reservation. That definition is precisely 

the same language that the dissent in 

APS stated is the ‘‘gold standard’’ for an 

express congressional delegation of 

regulatory authority to tribes over their 

entire reservations. APS, 211 F3.d at 

1302–03. It is also the language that the 

U.S. Supreme Court reviewed in finding 

congressional delegations to tribes in 

other contexts. United States v. Mazurie, 

419 U.S. 544 (1975) (delegation of 

authority to tribes regarding regulation 

of liquor); Rice v. Rehner, 463 U.S. 713 

(1983) (same). Although the legislative 

history of section 518 has, of course, 

remained unaltered since 1987, the 

plain language of the statute and the 

above-described developments provide 

ample support for the revised 

interpretation. 

The effect of this proposal would be 

to relieve tribes of the need to 

demonstrate their inherent authority 

when they apply for TAS to administer 

CWA regulatory programs. In particular, 

this proposal would eliminate any need 

to demonstrate that the applicant tribe 

retains inherent authority to regulate the 

conduct of nonmembers of the tribe on 

fee lands under the test established by 

the Supreme Court in Montana. Instead, 

applicant tribes would be able to rely on 

the congressional delegation of 

authority in section 518 as the source of 

their authority to regulate their entire 

reservations under the CWA, without 

distinguishing among various categories 

of on-reservation land. As EPA 

explained in connection with the CAA, 

such a territorial approach that treats 

Indian reservations uniformly promotes 

rational, sound management of 

environmental resources that might be 

subjected to mobile pollutants that 

disperse over wide areas without regard 

to land ownership. See 59 FR at 43959. 

As specifically recognized by the 

district court in Montana v. EPA, the 

same holds true for regulation under the 

CWA. Montana, 941 F. Supp. at 952. 

B. Geographic Scope of TAS for 

Regulatory Programs 

EPA’s proposal would not affect— 

either by expanding or contracting—the 

geographic scope of potential tribal TAS 

eligibility under the CWA. Under 

section 518, tribes can only obtain TAS 

status over waters within the borders of 

their reservations. See, e.g., 56 FR at 

64881–82. Thus, under any approach to 

tribal regulatory authority under the 

CWA, tribal TAS eligibility under the 

CWA is limited to Indian reservations. 

Tribes can seek TAS with respect to 

water resources pertaining to any 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. Conversely, tribes cannot 

obtain TAS under the CWA for water 

resources pertaining to any nonreservation Indian country 10 or any 

other type of non-reservation land.11

The proposed change in interpretation 

would not alter that basic limitation of 

TAS under the CWA. 

C. Treatment of Tribal Trust Lands 

The proposed change in statutory 

interpretation would not alter the 

current approach to tribal trust lands. 

Indian reservations include trust lands 

validly set aside for Indian tribes even 

if such lands have not formally been 

designated as an Indian reservation. 

Many named Indian reservations were 

established through federal treaties with 

tribes, federal statutes, or Executive 

Orders of the President. Such 

reservations are often referred to as 

formal Indian reservations. Many tribes 

have lands that the United States holds 

in trust for the tribes, but that have not 

been formally designated as 

reservations. As EPA has consistently 

stated, and consistent with relevant 

judicial precedent, such tribal trust 

lands are informal reservations and thus 

have the same status as formal 

reservations for purposes of the 

Agency’s programs. See, e.g., 56 FR at 

64881; 63 FR at 7257–58; APS, 211 F.3d 

at 1292–94. For CWA purposes, tribes 

have thus always been able to seek TAS 

over such trust lands, and would 

continue to be able to do so under this 

proposal. Several tribes have done so 

previously. 

D. Tribal Criminal Enforcement 

Authority 

EPA’s proposed change in statutory 

interpretation would not affect any 

existing limitations on tribal criminal 

enforcement authority. This proposal 

relates solely to applicant Indian tribes’ 

civil regulatory authority to administer 

CWA regulatory programs on their 

reservations; it does not address or in 

any way alter the scope of tribal 

criminal enforcement jurisdiction. EPA 

has previously established regulations 

addressing implementation of criminal 

enforcement authority on Indian 

reservations for those CWA programs 

that include potential exercises of such 

authority. See, e.g., 40 CFR 123.34, 

233.41(f). These regulations provide that 

the federal government will retain 

primary criminal enforcement 

responsibility in those situations where 

eligible tribes do not assert or are 

precluded from exercising such 

authority. 

E. Special Circumstances 

There could be rare instances where 

special circumstances limit or preclude 

a particular tribe’s ability to accept or 

effectuate the congressional delegation 

of authority over its reservation. For 

example, there could be a separate 

federal statute 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 constitutions 

could limit a tribe’s ability to exercise 

relevant authority.12


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13 In promulgating the CAA Tribal Authority 

Rule, the EPA similarly noted its expert view that 

even absent a direct delegation of authority from 

Congress, tribes would very likely have inherent 

authority over all activities within Indian 

reservation boundaries that are subject to CAA 

regulation. 59 FR at 43958 n.5. 

14Focusing the jurisdictional inquiry on the 

geographic scope of a tribe’s TAS application—i.e., 

the boundary of the reservation area that a tribe 

seeks to regulate—would impose no additional 

burden on entities that wish to comment on an 

applicant tribe’s assertion of authority. Under any 

approach to tribal regulatory authority, the 

geographic scope of the TAS application would be 

a relevant jurisdictional consideration and thus an 

appropriate issue for potential comment during the 

TAS process. Commenters have, at times, raised 

such geographic issues in the context of previous 

TAS applications; EPA’s proposal would not alter 

The application requirements of 

existing CWA TAS regulations already 

require tribes to submit a statement of 

their legal counsel (or equivalent 

official) describing the basis for their 

assertion of authority. The statement 

can include copies of documents such 

as tribal constitutions, by-laws, charters, 

executive orders, codes, ordinances, 

resolutions, etc. See 40 CFR 

131.8(b)(3)(ii); 123.32(c); 233.61(c)(2). If 

EPA finalizes this proposed action, the 

requirement for a legal counsel’s 

statement would continue to apply and 

would ensure that applicant tribes 

appropriately rely on the congressional 

delegation of authority and provide any 

additional information that could be 

relevant to their ability to accept or 

effectuate the delegated authority. As 

described below in section V.G., 

existing CWA TAS and program 

regulations will also continue to provide 

appropriate opportunities for other 

potentially interested entities—such as 

states or other Indian tribes adjacent to 

an applicant tribe—to comment on an 

applicant tribe’s assertion of authority 

and, among other things, inform EPA of 

any special circumstances that they 

believe could affect a tribe’s ability to 

regulate under the CWA. 

Section 10211(b) of the Safe, 

Accountable, 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 section 10211(b) of 

SAFETEA, tribes in Oklahoma seeking 

TAS under a statute administered by the 

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 

the state that is subject to EPA approval 

and that provides for the tribe and state 

to jointly plan and administer program 

requirements. This requirement of 

SAFETEA exists apart from, and in 

addition to, existing TAS criteria, 

including the TAS criteria set forth in 

section 518 of the CWA. EPA’s proposal 

relates solely to the interpretation of an 

existing CWA TAS requirement; it 

would thus have no effect on the 

separate TAS requirement of section 

10211(b) of SAFETEA. 

F. Tribal Inherent Regulatory Authority 

EPA’s proposed change in statutory 

interpretation is not intended as any 

comment on the extent of tribal inherent 

regulatory authority. As the Agency 

clearly articulated in the TAS rules 

identified in section II.B, the importance 

of water resources to tribes, the serious 

potential impacts of water pollution on 

tribes’ uses of their waters, and the 

mobility of pollutants in water all 

strongly support tribes’ ability to 

demonstrate their inherent authority to 

regulate surface water quality on their 

reservations, including the authority to 

regulate nonmember conduct on fee 

lands under the Supreme Court’s test 

established in Montana. Consistent with 

its 1991 interpretation of section 518, 

EPA concluded that each of the 50 tribes 

it has approved for TAS for CWA 

regulatory programs has demonstrated 

its inherent regulatory authority and has 

demonstrated that the functions it 

sought to exercise pertain to the 

management and protection of 

reservation water resources. All Agency 

CWA TAS determinations challenged in 

court have been upheld. 

The proposed change in interpretation 

would not affect these prior TAS 

approvals. The proposed change would, 

however, modify EPA’s approach going 

forward to be consistent with Congress’ 

intent to delegate authority to eligible 

tribes. It would relieve tribes of the 

administrative burden associated with 

demonstrating their inherent regulatory 

authority in the TAS application 

process. The change in interpretation 

does not, however, alter EPA’s prior 

views regarding the extent of tribal 

inherent regulatory authority.13

G. Existing Regulatory Requirements 

Because the proposed change in 

statutory interpretation is consistent 

with existing CWA TAS regulatory text, 

EPA’s proposal would not revise any 

regulatory text in the Code of Federal 

Regulations. 

If EPA finalizes its change in 

interpretation, tribes would be able to 

rely on the congressional delegation of 

authority in section 518 as the source of 

their authority to regulate water quality 

on their reservations. Aside from any 

special circumstances (see section V.E.), 

the main focus in determining the 

extent of an applicant tribe’s 

jurisdiction for CWA regulatory 

purposes would then be identifying the 

geographic boundaries of the Indian 

reservation area (whether a formal or 

informal reservation) over which the 

congressionally delegated authority 

would apply. EPA’s existing CWA TAS 

regulations already provide for 

applicant tribes to submit a map or legal 

description of the reservation area that 

is the subject of the TAS application. 

See 40 CFR 131.8(b)(3)(i); 123.32(c); 

233.61(c)(1); 501.23(c). These provisions 

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. 

The existing regulations provide 

appropriate opportunities for potentially 

interested entities to provide input to 

EPA regarding any jurisdictional issues 

associated with a tribe’s TAS 

application. As mentioned in section 

II.B. above, EPA’s TAS regulations for 

the CWA section 303(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 provide 

comment on the applicant tribe’s 

assertion of authority. EPA makes such 

notice broad enough that other 

potentially interested entities can 

participate in the process. 56 FR at 

64884. For example, EPA routinely 

publishes notice of tribal TAS 

applications for the WQS program in 

relevant local newspapers covering the 

area of the subject reservation and in 

electronic media. 

EPA’s TAS regulations for the CWA 

section 402 and 404 permitting 

programs require an analysis of 

regulatory authority as part of the 

program approval process under 40 CFR 

parts 123 and 233 that are described in 

section II.B. As described in the 

Simplification Rule, EPA makes its 

decisions to approve or disapprove 

those programs as part of a public notice 

and comment process conducted in the 

Federal Register. 59 FR at 64340. 

Thus, the regulations would continue 

to afford appropriate opportunities for 

interested parties to comment on tribal 

assertions of authority for all CWA 

regulatory programs. Because the 

principal jurisdictional issue under the 

proposed reinterpretation would be the 

boundaries of the subject reservation, 

any comments on an applicant tribe’s 

assertion of authority would likely focus 

on the reservation boundaries.14


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the opportunity to do so for future applications, or 

any burden attendant to preparing and submitting 

such comments. 

15 ‘‘Adoption of the Recommendations from the 

EPA Workgroup on Tribal Eligibility 

Determinations,’’ memorandum from Assistant 

Administrator for Water Robert Perciasepe and 

General Counsel Jonathan Z. Cannon to EPA 

Assistant Administrators and Regional 

Administrators, March 19, 1998. 

16The ‘‘Cannon-Perciasepe’’ approach and related 

guidance to tribes are reflected in subsequent EPA 

materials, including portions of the ‘‘Strategy for 

Reviewing Tribal Eligibility Applications to 

Administer EPA Regulatory Programs,’’ 

memorandum from Deputy Administrator Marcus 

Peacock, January 23, 2008. 

However, to the extent a particular 

application presents a separate 

jurisdictional issue, the notice-andcomment process that exists in each 

CWA TAS regulation would also be 

available to raise such an issue to EPA 

for due consideration. 

Because this proposal merely explains 

EPA’s revised interpretation of existing 

statutory requirements established in 

the CWA tribal provision—and does not 

propose any changes to the existing 

regulatory language applicable to CWA 

TAS applications—an interpretive rule 

is the appropriate vehicle to announce 

EPA’s revised approach. This 

interpretive rule is not subject to notice 

and comment requirements of the 

Administrative Procedure Act. 

However, EPA decided to provide 

notice and an opportunity for comment 

to increase transparency and to allow 

interested parties to provide their views. 

EPA intends this process to ensure that 

the Agency’s decision making is well 

informed by stakeholder views and 

invites comments on all aspects of this 

proposal to reinterpret section 518 of 

the CWA as a congressional delegation 

of authority to eligible tribes. 

VI. How would the proposed change in 

interpretation affect existing EPA 

guidance to tribes seeking to administer 

CWA regulatory programs? 

As noted in section V.G., EPA’s 

proposal would not revise any 

regulatory text. However, if EPA 

finalizes the proposal, the Agency 

would consider revising and updating 

some of its existing guidance to tribes 

and EPA regional offices on 

implementing the regulations. 

For example, a 1998 memorandum to 

EPA staff (the ‘‘Cannon-Perciasepe 

Memorandum’’) 15 provided guidance 

for EPA’s reviews of tribal assertions of 

inherent authority. The memorandum 

established a case-by-case process for 

EPA to seek comments from appropriate 

governmental entities and the public on 

EPA’s proposed factual findings relating 

to nonmember activities on fee lands. 

Cannon-Perciasepe Memorandum, p. 6. 

The memorandum also provided 

detailed guidance for implementing the 

Montana test. Cannon-Perciasepe 

Memorandum, Att. C.16

If EPA finalizes this proposal, the 

memorandum’s Montana test guidance 

would no longer be relevant for TAS 

applications for CWA regulatory 

programs, and there would be no need 

for EPA to develop or seek comment on 

factual findings relating to tribal 

inherent authority. EPA would update 

its guidance to applicant tribes to reflect 

these changes consistent with the 

express congressional delegation of 

authority to eligible tribes. 

VII. What are the anticipated effects of 

the proposed reinterpretation? 

A. Effects on Tribes That EPA Has 

Previously Found Eligible for TAS 

There would be no effect on tribes 

that EPA has previously found eligible 

for TAS for the purpose of a CWA 

regulatory program. 

B. Effects on New Tribal Applications 

If EPA finalizes this proposed 

interpretive rule, then after the effective 

date TAS applications for CWA 

regulatory programs would be able to 

rely on the delegation from Congress as 

the relevant source of authority 

supporting their eligibility. The 

reinterpretation should thus streamline 

the TAS process for many tribes seeking 

eligibility to administer CWA regulatory 

programs. EPA anticipates that this 

proposed action, if finalized, could 

significantly reduce the time and effort 

for tribes to develop their TAS 

applications, and could encourage more 

tribes to apply for TAS for CWA 

regulatory programs. 

EPA advises tribes that have already 

initiated TAS applications for CWA 

regulatory programs that the 

reinterpretation proposed in this action 

has not yet taken effect. The earliest it 

could take effect would be 30 days after 

EPA issues a final interpretive rule after 

reviewing and considering all comments 

received during the public comment 

period (see DATES section at the 

beginning of this document). All TAS 

applications will be processed under the 

existing statutory interpretation and the 

current regulations and guidance noted 

above, unless and until EPA issues a 

final interpretive rule. Such tribes can, 

at their option, ask EPA to suspend 

action on their current CWA 

applications for regulatory programs 

pending a potential final interpretive 

rule, but EPA cannot guarantee whether 

or when this proposal will be finalized. 

C. Effects on EPA-Approved State 

Programs 

EPA’s proposal would have no effect 

on the scope of existing state regulatory 

programs approved by EPA under the 

CWA. Generally speaking, civil 

regulatory jurisdiction in Indian country 

lies with the federal government and the 

relevant Indian tribe, not with the states. 

See, e.g., Alaska v. Native Village of 

Venetie Tribal Gov’t, 522 U.S. 520, 527 

n.1 (1998). Therefore, in the absence of 

an express demonstration of authority 

by a state for such areas, EPA has 

generally excluded Indian country from 

its approvals of state regulatory 

programs under the CWA. 

The proposal relates solely to the 

exercise of jurisdiction by Indian tribes 

on their reservations; it would have no 

effect on the scope of existing CWA 

regulatory programs administered by 

states outside of Indian country. It 

would neither diminish, nor enlarge, the 

scope of such approved state programs. 

There are uncommon situations 

where a federal statute other than the 

CWA grants a state jurisdiction to 

regulate in areas of Indian country. For 

example, in a few cases EPA has 

approved states to operate CWA 

regulatory programs in areas of Indian 

country where the states demonstrated 

jurisdiction based on such a separate 

federal statute. This proposal is not 

intended to address or affect such 

jurisdiction that other federal statutes 

provide to states. 

Regulations already exist to address 

circumstances where a state or tribe 

believes 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. 

The Agency did so at 40 CFR 131.7, 

which establishes a detailed dispute 

resolution mechanism. This proposal 

does not affect that process; it would 

remain available as needed to address 

potential state/tribal issues. 

VIII. Economic Analysis 

This rule would entail no significant 

cost. Its only direct effect would be to 

reduce the administrative burden for a 

tribe applying to administer a CWA 

regulatory program, and to potentially 

increase the pace at which tribes seek 

such programs. See the discussion of 

administrative burden and cost in 

section IX.B. (Paperwork Reduction 

Act). 


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47440 Federal Register / Vol. 80, No. 152 / Friday, August 7, 2015 / Proposed Rules 

17The National Governors Association, the 

National Conference of State Legislatures, the 

Council of State Governments, the Western 

Governors Association, the Southern Governors 

Association, the Midwestern Governors 

Association, the Coalition of Northeastern 

Governors, the Environmental Council of the States, 

the Association of Clean Water Administrators, and 

the Western States Water Council. In May and June 

2015, EPA held additional informational meetings 

with the state environmental chiefs of the National 

Association of Attorneys General, members of the 

legal network of the Environmental Council of the 

States, and member states of the Western 

Governors’ Association. 

IX. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at http://www2.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action and was, therefore, not 

submitted to the Office of Management 

and Budget (OMB) for review. 

B. Paperwork Reduction Act (PRA) 

EPA has submitted the information 

collection activities in this proposed 

interpretive rule to OMB for approval 

under the PRA. The Information 

Collection Request (ICR) document that 

EPA prepared has been assigned EPA 

ICR number 2515.01. You can find a 

copy of the ICR in the docket for this 

rule, and it is briefly summarized here. 

As discussed in section II.B., EPA’s 

regulations require that a tribe seeking 

to administer a CWA regulatory program 

must submit information to EPA 

demonstrating that the tribe meets the 

statutory criteria described in section 

II.A. EPA requires this information in 

order to determine that the tribe is 

eligible to administer the program. 

This proposed interpretive rule would 

streamline the application by removing 

the current requirement for an applicant 

tribe to demonstrate its inherent 

regulatory authority, including 

demonstrating that it meets the Montana 

test where relevant. As described in the 

ICR, this proposed rule would reduce 

the burden by an estimated 583 staff 

hours for a typical tribe, or 27 percent, 

and reduce the cost of an application to 

a typical tribe for salaries and contractor 

support by an estimated $70,554 per 

tribe, or 39 percent. 

Respondents/affected entities: Any 

federally recognized tribe with a 

reservation can potentially apply to 

administer a regulatory program under 

the CWA. 

Respondent’s obligation to respond: 

The information discussed in this rule 

is required from a tribe only if the tribe 

seeks to administer a CWA regulatory 

program. See EPA’s regulations cited in 

section II.B of this notice. 

Estimated number of respondents: 

The total potential pool of respondents 

is over 300 tribes with reservations. 

Although there are 566 federally 

recognized Indian tribes in the United 

States, the CWA allows only those tribes 

with reservations to apply for authority 

to administer programs. EPA estimates 

that about six tribes per year would 

apply for a regulatory program under 

this proposed rule, an increase from the 

current rate of four tribes per year. The 

pace of applications could increase after 

the first few years as tribes become more 

familiar with the post-rule process. 

Frequency of response: Application 

by a tribe to be eligible to administer a 

CWA regulatory program is a one-time 

collection of information. 

Total estimated burden: 9,642 tribal 

staff hours per year. Burden is defined 

at 5 CFR 1320.3(b). EPA’s ICR analysis 

included all administrative costs 

associated with TAS applications even 

if some of the costs are not strictly 

information collection costs. EPA was 

unable to differentiate the information 

collection costs consistently and 

reliably from other administrative costs 

such as program development costs. 

This estimate could overstate actual 

burden because (a) EPA assumed that all 

applications are first-time applications 

for CWA regulatory programs, and thus 

the tribes submitting them would be 

unable to rely on materials from 

previous applications for different 

regulatory programs; (b) EPA used a 

liberal estimate of the annual rate of 

tribal applications to ensure that the ICR 

does not underestimate tribal burden; 

and (c) EPA used a simplifying steadystate assumption in estimating 

annualized costs. 

Total estimated cost: $668,292, 

including staff salaries and the cost of 

contractors supporting tribal applicants. 

This action does not entail capital or 

operation and maintenance costs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

Submit your comments on the 

Agency’s need for this information, the 

accuracy of the provided burden 

estimates and any suggested methods 

for minimizing respondent burden to 

EPA using the docket identified in the 

ADDRESSES section at the beginning of 

this rule. You can also send your ICRrelated comments to OMB’s Office of 

Information and Regulatory Affairs via 

email to oira_submission@omb.eop.gov, 

Attention: Desk Officer for EPA. Since 

OMB is required to make a decision 

concerning the ICR between 30 and 60 

days after receipt, OMB must receive 

comments no later than September 8, 

2015. EPA will respond to any ICRrelated comments in the final rule. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This action will not 

impose any requirements on small 

entities. This action affects only Indian 

tribes that seek to administer CWA 

regulatory programs. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

E. Executive Order 13132: Federalism 

This action would not have 

federalism implications. It would not 

have substantial direct effects on the 

states, on the relationship between the 

national government and the states, or 

on the distribution of power and 

responsibilities among the various 

levels of government. 

This proposed action would apply 

only to tribal governments that seek 

eligibility to administer CWA regulatory 

programs. Although it could be of 

interest to some state governments, it 

would not apply directly to any state 

government or to any other entity. As 

discussed in section VII.C., the action 

would have no effect on the scope of 

existing state regulatory programs 

approved by EPA under the CWA. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

consulted with representatives of state 

governments to obtain meaningful and 

timely input for consideration in this 

proposal. On June 18, 2014, EPA invited 

ten national and regional state 

associations 17 by letter to a July 8, 2014, 

informational meeting at EPA in 

Washington, DC. As a result of this 

meeting and other outreach, EPA 

participated in several follow-up 

meetings with interested associations 


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Federal Register / Vol. 80, No. 152 / Friday, August 7, 2015 / Proposed Rules 47441 

and their members as well as certain 

individual states during the months of 

June–September, 2014. Records of these 

meetings and copies of written 

comments and questions submitted by 

states and state associations are 

included in the docket for this rule. 

Some participants expressed 

concerns, which included: Whether the 

proposal would affect the geographic 

scope of TAS under the CWA; whether 

there is adequate evidence of 

congressional intent; how the proposal 

would affect a state’s ability to dispute 

a TAS application; and how the 

proposal would affect the status of 

existing TAS applications. Some states 

also had questions about issues unique 

to their situations. EPA considered this 

input in developing the proposed rule, 

particularly in developing sections IV. 

and V. 

EPA specifically solicits additional 

comment on this proposed action from 

state officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action has tribal implications 

because it would directly affect tribes 

seeking to administer CWA regulatory 

programs. However, it would neither 

impose substantial direct compliance 

costs on federally recognized tribal 

governments, nor preempt tribal law. 

EPA consulted and coordinated with 

tribal officials under the EPA Policy on 

Consultation and Coordination with 

Indian Tribes early in the process of 

developing this regulation to permit 

them to have meaningful and timely 

input into its development. A summary 

of that consultation and coordination 

follows. 

EPA initiated a tribal consultation and 

coordination process for this action by 

sending a ‘‘Notification of Consultation 

and Coordination’’ letter on April 18, 

2014, to all 566 federally recognized 

tribes. EPA contacted all federally 

recognized tribes, even though only 

tribes with reservations can apply for 

TAS under the CWA, because it is 

possible that additional tribes could 

acquire reservation lands in the future. 

The letter invited tribal leaders and 

designated consultation representatives 

to participate in the tribal consultation 

and coordination process. EPA held two 

identical webinars concerning this 

matter for tribal representatives on May 

22 and May 28, 2014. A total of 70 tribal 

representatives participated in the two 

webinars, and tribes and tribal 

organizations sent 23 comment letters to 

EPA. 

All tribal comments generally 

supported EPA’s potential 

reinterpretation of section 518. Some 

comments expressed concerns about 

whether there would be adequate 

funding to help tribes administer CWA 

regulatory programs after they have 

TAS. EPA considered the tribal 

comments in developing this proposal, 

and will continue to consider tribal 

resource issues in its budgeting and 

planning process. However, EPA cannot 

assure tribes that additional funding 

will be available for a tribe to develop 

or implement the CWA regulatory 

program it seeks. A tribe choosing to 

administer such programs will need to 

carefully weigh its priorities and any 

available EPA assistance. 

EPA specifically solicits additional 

comment on this proposed action from 

tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that concern environmental 

health or safety risks that EPA has 

reason to believe could 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health or safety risk. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

This proposed interpretive rule would 

not have potential disproportionately 

high and adverse human health or 

environmental effects on minority, lowincome, or indigenous populations. This 

action would affect the procedures 

tribes must follow in order to seek TAS 

for CWA regulatory purposes and would 

not directly affect the level of 

environmental protection. 

Dated: July 31, 2015. 

Gina McCarthy, 

Administrator. 

[FR Doc. 2015–19351 Filed 8–6–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 721 

[EPA–HQ–OPPT–2014–0697; FRL–9930–33] 

RIN 2070–AK50 

Trichloroethylene (TCE); Significant 

New Use Rule; TCE in Certain 

Consumer Products 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Under the Toxic Substance 

Control Act (TSCA), EPA is proposing a 

significant new use rule (SNUR) for 

trichloroethylene (TCE). The proposed 

significant new use is manufacture or 

processing for use in a consumer 

product, with a proposed exception for 

use of TCE in cleaners and solvent 

degreasers, film cleaners, hoof polishes, 

lubricants, mirror edge sealants, and 

pepper spray. Persons subject to the 

SNUR would be required to notify EPA 

at least 90 days before commencing any 

manufacturing or processing of TCE for 

a significant new use. The required 

notification would provide EPA with 

the opportunity to evaluate the intended 

use and, if necessary based on the 

information available at that time, an 

opportunity to protect against potential 

unreasonable risks, if any, from that 

activity before it occurs. 

DATES: Comments must be received on 

or before October 6, 2015. 

ADDRESSES: Submit your comments, 

identified by docket identification (ID) 

number EPA–HQ–OPPT–2014–0697, by 

one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. 

• Mail: Document Control Office 

(7407M), Office of Pollution Prevention 

and Toxics (OPPT), Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460–0001. 

• Hand Delivery: To make special 

arrangements for hand delivery or 

delivery of boxed information, please 

follow the instructions at http://

www.epa.gov/dockets/contacts.html. 


rmajette on DSK2TPTVN1PROD with PROPOSALS