From: Steve Terry < sterry@USETINC.ORG >

Sent: Monday, June 16, 2014 12:12 PM

To: Leutner, Fred

Cc: Wright, Felicia; Wanda Janes; jpardilla@usetinc.org ; Jasmine Alvarado

Subject: USET Resolution on Potential Reinterpretation of CWA TAS Provisions

Fred,

The United South and Eastern Tribes recently held their Semi

- Annual Meeting in Bar Harbor, ME on June

2

- 3, 2014. At this meeting, the Natural Resources Committee discus sed EPA’s “Potential

Reinterpretation of Clean Water Act TAS Provisions” in detail. The Committee approved a resolution to

be presented to the USET Board of Directors for their review and approval, which was accomplished on

June 4 th . A copy of the signed r esolution is attached along with a map of the USET member Tribes.

Please note that the resolution officially represents the intentions of each member Tribe.

Thank you for allowing USET to comment. Please contact me if you require additional information.

STEVE TERRY

Senior Project Coordinator

Tribal Community Support

Sterry@usetinc.org

U nited S outh and E astern T ribes, Inc.

711 Stewarts Ferry Pike, Suite 100

Nashville, TN 37214

Ph.: (615) 467

- 1705

Fax.: (615) 872

- 7417

www.USETinc.org

### U nited S outh and E astern T ribes, Inc.

Na shville, TN Office: Washington, DC Office:

711 Stewarts Ferry Pike, Suite 100 400 North Capitol Street, Suite 585

Nashville, TN 37214 Washington, D.C., 20001

Phone: (615) 872

- 7900 Phone: (202) 624

- 3550

Fax: (615) 872

- 7417 Fax: (202) 393

- 5218

USET Resolution No. 20 14 : 048

ENVIRONMENTAL PROTECTION AGENCY POTENTIAL NEW INTERPRETATION OF CLEAN WATER ACT

PROVISIONS FOR TRIBES TO OBTAIN TREATMENT IN A SIMILAR MANNER TO STATES

WHEREAS, United South and Eastern Tribes Incorporated (USET) is an intert ribal organization comprised of

twenty

- six (26) federally recognized Tribes; and

WHEREAS, the actions taken by the USET Board of Directors officially represent the intentions of each

member Tribe, as the Board of Directors comprises delegates from the mem ber Tribes’

leadership; and

WHEREAS, Congress amended the Clean Water Act (CWA) in 1987 by adding Section 518 which is a

provision for Tribes to obtain T reatment in a Similar Manner to S tates (TAS) for CW A Regulatory

Programs; and

WHEREAS, Section 518 of the CWA authorizes the U.S. Environmental Protection Agency (EPA) to offer TAS

to Tribes for purposes of specific CWA regulatory programs provided Tribes met these criteria : (1) is federally recognized and has a reservation; (2) has a governing body ca rrying out

substantial governmental duties and powers; (3) has appropriate authority to regulate the quality

of reservation waters; and (4) is reasonably expected to be capable of carrying out the functions

of the program; and

WHEREAS, in 1991 EPA develop ed TAS provisions so that Tribes could apply for CWA regulatory programs

,

one of which is developing surface Water Quality Standards (WQS) to be approved by EPA; and

WHEREAS, EPA took a very cautious approach in their interpretation which required Tribes to demonstrate

their own inherent regulatory authority; and

WHEREAS, such interpretation went further in that Tribes with non

- member owned fee lands within the

boundaries of the reservation are required to meet the “Montana” test which requires Tribes t o

provide in this context a factual demonstration that non

- member activities could have a

substantial, direct effect on the Tribe’s health and welfare; and

WHEREAS, this interpretation has create d a barrier to Tribes in applying for CWA regulatory auth ority by

having to meet the “Montana” test which has added on average 2.3 years to a Tribe’s application

process for the WQS program; and

WHEREAS, of 566 federally recognized Indian Tribes, only 48 have successfully demonstrated their own

inherent regula tory authority to the EPA and have received TAS status to obtain approved CWA

Section 303(c) WQS and Section 401 certifications, while 266 Tribes have obtained approved

CWA Section 106 WQS management programs, and 180 Tribes have obtained approved CWA

Sect ion 319 nonpoint source management programs; andU nited S outh and E astern T ribes, Inc. USET Resolution No. 20 14 :048

“Because there is s

trength in Unity”

USE T 2014 Semi

- Annual Meeting

– Bar Harbor, ME

– June 2

- 4 2 WHEREAS, EPA is considering a new interpretation of the provisions allowing Tribes to be treated in a similar

manner to states under Section 518 of the Clean Water Act by eliminating the “Montana” test of

Tribal inherent regulatory authority and replacing it with a statement of the Tribe’s willingness and

ability to accept Congressional authority as cited in Section 518 of the Clean Water Act for

consideration by the Environmental Protection Agency ; and

W HEREAS, the potential new interpretation is supported by the plain language of Section 518, a similar

approach in implementing the Clean Air Act TAS provisions, relevant judicial cases since 1991,

and EPA’s experience since 1991; and

WHEREAS, neither the CWA statutory language nor EPA’s 40 CFR 131.8 implementing regulations will need

to be revise d , thus all existing regulatory requirement s will remain; and

WHEREAS, in December 2010

, the United States recognized the rights of its First Peoples through its support

of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), whose

provisions and principles support and promote the purposes of this resolution; therefore, be it

RESOLVED the USET Board of Directors support s the new interp retation of the provisions allowing Tribes to

be treated in a similar manner to states under Section 518 of the Clean Water Act by eliminating

the “Montana” test of Tribal inherent regulatory authority and replacing it with a statement of the

Tribe’s willi ngness and ability to accept Congressional authority as cited in Section 518 of the

Clean Water Act for consideration by the Environmental Protection Agency

.

CERTIFICATION

This resolution was duly passed at the USET Semi

- Annual Meeting , at which a quor u m was present, in Bar

Harbor, ME

, June 4, 2014

.

_____________________________ ______________________________ Brian Patterson, President Brenda Lintinger, Secretary

United South and Eastern Tribe s , Inc. United South and Eastern Tribes, Inc.