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EPA’s Potential Reinterpretation of the Clean Water Act Provision Regarding Tribal 

Authority – Meeting with Council of State Governments

Wednesday, July 16, 2014

2:00 – 3:00 p.m. EDT

Meeting Summary

EPA Presenters: Fred Leutner, EPA Office of Science and Technology

Tod Siegal. EPA Office of General Counsel

Participants: Edgar Ruiz, Executive Director, Council of State Governments (CSG) West

Martha Castañeda, Director of International Programs, CSG West

Alma Lopez, Policy Analyst, CSG West

Luis Tapia, International Programs Coordinator, CSG West

Senator Jim Honeyford, Majority Assistant Floor Leader, Washington State 

Senate

Senator Michelle Stennett, Idaho State Senate Minority Leader, Idaho State 

Senate

Representative Gayle L. Batt, Vice Chair for State Affairs, Idaho House of 

Representatives

Andy Karellas, Director of Federal Affairs, CSG

Rebekah Fitzgerald, Environment and Energy Policy Director, CSG 

The meeting began with introductions. Fred Leutner then provided an overview of the potential 

EPA action to reinterpret the tribal authority provision of the Clean Water Act. The overview

was followed by a more detailed presentation and discussion based on the EPA letter from Betsy 

Southerland, dated June 18, 2014, available at EPA’s website at 

http://water.epa.gov/scitech/swguidance/standards/wqslibrary/tribal.cfm. 

The meeting continued with an opportunity for questions and comments from participants. The 

following is a list of questions and comments received from participants during the meeting. For each of 

the questions, the EPA presenters provided responses that were consistent with the presentation materials 

and other information available at 

http://water.epa.gov/scitech/swguidance/standards/wqslibrary/tribal.cfm. Views and comments 

were acknowledged, and will be considered by EPA in developing the proposed rule. 

 In 1987, did the tribes actually make the request to manage water resources on their 

lands? 

 Will this apply to reservation property only or will it also apply to usual and accustomed 

(U&A) areas?

 If a tribe has jurisdiction, would they still need approval for a use attainability analysis 

(UAA)? Would the tribe have the final say, or would that remain with EPA? 

 Would that include fee schedules, for example to obtain a permit?
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 If there are private lands within reservation borders, would these lands fall under tribal 

or state jurisdiction?

 If a river boundary is shared by two states and a tribe, who has authority? Who is the 

final arbitrator on the boundary?

 During the review process for a tribal WQS program, the second step is no longer needed 

because EPA is relying on congressional delegation of authority. If that step is removed, 

can we assume that the findings with regards to the tribe would be on the third step? Is 

there a chance for states/local governments to provide comment on EPA’s reliance on the 

congressional delegation of authority? 

 We have committees interested in this issue. We will share information in our upcoming 

meeting, and will provide any feedback to EPA. We would be happy to further the 

information sharing.