June 18, 2014

Corey Buffo, Chief Regional, State, and Tribal Standards Support Branc h (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 Admini ster 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 se nt 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 reinterpret ation of Clean Water Act provisions regarding Tribal eligibility to administer Clean Wa ter Act programs.

The Region 10 RTOC includes Tribes across Alaska, W ashington, 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 th e challenges that the current interpretation presents – particularly in regard to potential challenges by hostile state, local governments, and others to Tribal jurisdictio n. Accordingly, we strongly support this proposal.

Clean water is essential to many Tribes, not just a s a source of sustenance, but also for cultural, medicinal, and spiritual reasons. The abi lity of Tribes to control pollution and protect water quality is vital to the survival of T ribes. Almost no activity on the reservation has more potential for significantly af fecting the economic and political integrity and the health and welfare of all reserva tion citizens than water use, quality, and regulation.Page 2

June 18, 2014

Tribal implementation of the Clean Water Act can as sist in reducing the “checkerboard” environmental jurisdictional pattern within reserva tions and strengthen federal-tribal government-to-government relationships, allowing tr ibes a greater opportunity to influence federal environmental regulatory policy a nd processes.

Clarifying and simplifying the process of obtaining Clean Water Act authority has been a priority of the RTOC. The RTOC Tribal Priorities D ocument specifically identifies the need to streamline the process for Tribes that seek Clean Water Act authority:

Look for opportunities to streamline application pr ocesses and increase opportunities for tribes to implement Clean Water A ct pro-grams, including programs to improve water quality in Alas ka Native Villages. 1

Moreover, the Government Accountability Office’s Oc tober 2005 report, EPA Should Reduce the Review Time for Tribal Requests to Manag e Environmental Programs, similarly recognizes the significant time and effor t required by Tribes seeking federal program authority from EPA and called for actions t o “better facilitate the timely review of tribal requests for TAS status.” 2

Unfortunately, EPA’s current interpretation which r equires a demonstration of inherent authority pursuant to the Supreme Court’s Montana test leads to inevitable jurisdictional battles with hostile state and local governments, a s well as industries and non-tribal land owners. These jurisdictional battles make environm ental regulation difficult. These

battles can lead to adverse court decisions that al ter the size of a Tribe’s reservation or the scope of its soverign authority. When faced with t hese 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 goal s of environmental protection and Tribal self-determination by avoiding battle of res ervation 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 Cou rt’s ruling in Brendale v. Confederated Tribes & Bands of the Yakima Indian Na tion where the Court cited the CWA as an example of Congress expressly granting au thority for environmental regulation to Tribes. 492 U.S. 408, 428 (1989).

For all these reasons, we believe that moving forwa rd 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 protect ion of Tribal health and environment.

1 See Region 10 RTOC Tribal Priorities Document at p age 7. Available at http://rtocregion10.org/wpcontent/uploads/2011/08/Priority-Doc-2013-FINAL-5.2 2.13.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 environm ent.

Sincerely,

Violet Yeaton Region 10 RTOC

Tribal Caucus Co-chair

Cc: RTOC