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 discussed 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 4th. A copy of the signed resolution 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

United South and Eastern Tribes, Inc.

711 Stewarts Ferry Pike, Suite 100

Nashville, TN 37214

Ph.: (615) 467-1705

Fax.: (615) 872-7417

www.USETinc.org
United South and Eastern Tribes, Inc.

 Nashville, 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. 2014:048

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 intertribal 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 member 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 Treatment in a Similar Manner to States (TAS) for CWA 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 carrying 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 developed 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 to

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 created a barrier to Tribes in applying for CWA regulatory authority 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 regulatory 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 

Section 319 nonpoint source management programs; and 
United South and Eastern Tribes, Inc. USET Resolution No. 2014:048

“Because there is strength in Unity”

USET 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

WHEREAS, 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 revised, thus all existing regulatory requirements 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 supports the 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.

CERTIFICATION

This resolution was duly passed at the USET Semi-Annual Meeting, at which a quorum was present, in Bar 

Harbor, ME, June 4, 2014.

_____________________________ ______________________________

Brian Patterson, President Brenda Lintinger, Secretary

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