June 18, 2014 

Corey Buffo, Chief 

Regional, State, and Tribal Standards Support Branch (mail code 4305T) 

Office of Water 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue 

Washington, DC 20460 

Sent via email: TASreinterpretation@epa.gov 

RE: Comments on Potential Reinterpretation of Clean Water Act 

 Provisions Regarding Tribal Eligibility to Administer Regulatory 

 Programs 

Dear Mr. Buffo: 

This letter is sent on behalf of the Tribal Caucus members of EPA Region 10’s Tribal 

Operations Committee (RTOC). This letter is not sent on behalf of EPA Region 10 or 

any employees of EPA, but solely tribal government representatives of the RTOC. These 

comments are submitted on the potential reinterpretation of Clean Water Act provisions 

regarding Tribal eligibility to administer Clean Water Act programs. 

The Region 10 RTOC includes Tribes across Alaska, Washington, Idaho, and Oregon. 

Many of these Tribes have interest in implementing Clean Water Act programs, but have 

been deterred from applying for authority due to the challenges that the current 

interpretation presents – particularly in regard to potential challenges by hostile state, 

local governments, and others to Tribal jurisdiction. Accordingly, we strongly support 

this proposal. 

Clean water is essential to many Tribes, not just as a source of sustenance, but also for 

cultural, medicinal, and spiritual reasons. The ability of Tribes to control pollution and 

protect water quality is vital to the survival of Tribes. Almost no activity on the 

reservation has more potential for significantly affecting the economic and political 

integrity and the health and welfare of all reservation citizens than water use, quality, and 

regulation. 
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June 18, 2014 

Tribal implementation of the Clean Water Act can assist in reducing the “checkerboard” 

environmental jurisdictional pattern within reservations and strengthen federal-tribal 

government-to-government relationships, allowing tribes a greater opportunity to 

influence federal environmental regulatory policy and processes. 

Clarifying and simplifying the process of obtaining Clean Water Act authority has been a 

priority of the RTOC. The RTOC Tribal Priorities Document specifically identifies the 

need to streamline the process for Tribes that seek Clean Water Act authority: 

Look for opportunities to streamline application processes and increase 

opportunities for tribes to implement Clean Water Act pro-grams, 

including programs to improve water quality in Alaska Native Villages.1

Moreover, the Government Accountability Office’s October 2005 report, EPA Should 

Reduce the Review Time for Tribal Requests to Manage Environmental Programs, 

similarly recognizes the significant time and effort required by Tribes seeking federal 

program authority from EPA and called for actions to “better facilitate the timely review 

of tribal requests for TAS status.”2

Unfortunately, EPA’s current interpretation which requires a demonstration of inherent 

authority pursuant to the Supreme Court’s Montana test leads to inevitable jurisdictional 

battles with hostile state and local governments, as well as industries and non-tribal land 

owners. These jurisdictional battles make environmental regulation difficult. These 

battles can lead to adverse court decisions that alter the size of a Tribe’s reservation or the 

scope of its soverign authority. When faced with these risks, many Tribes elect not to 

take the step of moving forward with the assumption of authority under the Clean Water 

Act. 

Accordingly, the reinterpretation will further goals of environmental protection and 

Tribal self-determination by avoiding battle of reservation boundaries and jurisdiction. 

The Tribal Caucus believes this reinterpretation is well-grounded in the law. First, it is 

consistent with other interpretations, such as the Clean Air Act. Second, the 

reinterpretation is consistent with the Supreme Court’s ruling in Brendale v. 

Confederated Tribes & Bands of the Yakima Indian Nation where the Court cited the 

CWA as an example of Congress expressly granting authority for environmental 

regulation to Tribes. 492 U.S. 408, 428 (1989). 

For all these reasons, we believe that moving forward is a wise step in advancing goals of 

the Clean Water Act to make all waters in the U.S. fishable and swimmable, as well as 

EPA’s trust responsibility to assist in the protection of Tribal health and environment. 

 

1

 See Region 10 RTOC Tribal Priorities Document at page 7. Available at http://rtocregion10.org/wpcontent/uploads/2011/08/Priority-Doc-2013-FINAL-5.22.13.pdf. 

2

 See http://www.gao.gov/assets/250/248335.pdf. 
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June 18, 2014 

The Tribal Caucus appreciates your consideration of these comments. We look forward 

to working closely with your office to move forward in the reinterpretation process and in 

doing the important work of protecting the environment. 

Sincerely, 

Violet Yeaton 

Region 10 RTOC 

Tribal Caucus Co-chair 

Cc: RTOC