Revised Interpretation of the Clean 

Water Act TAS Provision: Proposed rule

Webinar for States and State Associations

USEPA Office of Science and Technology

September 3, 2015

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Summary

• Waters on the majority of Indian reservations do not have water 

quality standards (WQS) under the Clean Water Act (CWA) to 

protect human health and the environment.

Only 40 of over 300 tribes with reservations...

 Have been found eligible to be treated in a similar 

manner as a state (TAS) for WQS, AND

 Have adopted WQS that EPA has approved 

• EPA proposes to streamline how tribes apply for TAS for the 

WQS program and other CWA regulatory programs.

• This would reduce the burden on applicant tribes and facilitate 

tribal involvement in protecting reservation water quality without 

changing statutory or regulatory requirements.

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Today’s Topics

• Background

• EPA’s Interpretation Since 1991

• Developments Supporting a Reinterpretation

• EPA’s Proposal

• Next Steps

• How to Comment on the Proposal

• How to Obtain More Information

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Background – Key Terms

• TAS – treatment of tribes in a similar manner as a state, for the 

purposes of administering EPA programs.

• Tribe – one of the 566 Indian tribes that are federally recognized, 

of which over 300 have reservations.

• Reservation – either a formal reservation or tribal trust land 

outside of a formal reservation.

• Nonmember fee lands – lands within a reservation that are 

owned outright (“in fee simple”) by nonmembers of the tribe.

• Regulatory program – one of the following CWA programs: 

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• Sec. 303(c) water quality 

standards

• Sec. 303(d) listings and TMDLs

• Sec. 401 water quality 

certifications

• Sec. 402 NPDES permits

• Sec. 404 dredge or fill permits
Background – CWA TAS Provision 

• Section 518 of the Clean Water Act authorizes EPA to treat a 

tribe in a similar manner as a state for purposes of a 

regulatory program if:

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1. The tribe is federally recognized and has a reservation.* 

2. The tribe has a governing body carrying out substantial 

governmental duties and powers.

3. The functions to be exercised pertain to the management 

and protection of water resources within the reservation. 

4. The tribe is reasonably expected to be capable of carrying 

out the functions of the program.

* Reservation means all land within the limits of an Indian reservation 

notwithstanding the issuance of any patent, and including rights of way 

running through the reservation.
Background – Tribes with TAS

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• Regulatory programs

 303(c) WQ standards and 401 certifications..............50 tribes approved

 303(d) listings/TMDLs............................TAS process under consideration

 402 NPDES............................................some interest, no tribes approved

 404 dredge or fill..............................limited interest, no tribes approved

• Grant programs*

 106 management programs......................................269 tribes approved

 319 nonpoint source management..........................183 tribes approved

* Grant programs are not discussed further in this presentation. Tribal grant 

applicants do not need to demonstrate regulatory jurisdiction.
EPA’s Interpretation since 1991

• EPA has followed a cautious approach that requires 

each applicant tribe to demonstrate its inherent 

authority under principles of federal Indian 

common law in order to regulate waters and 

activities on its reservation. 

For example, a tribe with nonmember-owned fee lands 

on its reservation must gather data to show it meets the 

“Montana test”

• EPA has stated its approach was subject to change 

in the event of further congressional or judicial 

guidance.

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Developments Supporting a 

Reinterpretation

EPA’s analysis is presented in the proposal. It includes references to:

• Federal district court case in Montana (1996)

Language supports the interpretation that section 518 includes a 

congressional delegation of authority

• EPA’s interpretation of similar statutory language in the 

Clean Air Act (1998)

Congressional delegation of authority applies to reservation areas

• Federal D.C. Circuit Court of Appeals decision upholding 

EPA’s 1998 CAA approach (2000)

Upheld EPA interpretation that the Clean Air Act tribal provision 

includes a congressional delegation of authority.

Observed favorably that section 518 of the CWA appears amenable to 

the same approach. 

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EPA’s proposal

EPA proposes to conclude definitively that section 

518 of the Clean Water Act includes an express 

delegation of authority by Congress to Indian tribes 

to administer regulatory programs over their entire 

reservations, subject to the eligibility requirements in 

section 518. 

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EPA’s proposal would...

• Eliminate the need for applicant tribes to

demonstrate inherent authority to regulate under 

the CWA.

• Allow tribes to implement the congressional 

delegation of authority unhindered by 

requirements not specified in the statute. 

• Bring EPA’s treatment of tribes under the CWA in 

line with EPA’s treatment of tribes under the Clean 

Air Act.

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EPA’s proposal would...

• NOT revise any regulatory text. 

For example, EPA’s regulations would continue to:

Require tribes to identify the boundaries of the 

reservation areas over which they seek to exercise 

authority. 

Require EPA to provide adjacent state(s), tribe(s), and 

other appropriate governmental entities an opportunity 

to comment to EPA on an applicant tribe’s assertion of 

authority. 

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EPA’s proposal would...

• NOT affect the geographic scope of TAS. It would neither expand 

nor contract the geographic scope of potential tribal TAS 

eligibility. 

• NOT affect any existing limitations on tribal criminal enforcement 

authority. The proposal relates solely to civil regulatory authority.

• NOT affect the 50 previous approvals of tribal TAS for water 

quality standards.

• NOT affect the scope of existing state regulatory programs 

approved by EPA under the Clean Water Act.

• NOT change EPA’s case-by-case approach to evaluating the full 

record in special circumstances.

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Next Steps

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• Proposed interpretive rule published

• Tribal consultation and coordination 

process begins

• Outreach to states begins

Aug. 7, 2015

EPA outreach to public, tribes, states

• 60-day public comment period ends

• Tribal consultation and coordination 

process ends

• Outreach to states ends

Oct. 6, 2015

EPA reviews, analyzes comments and issues

If finalized:

• Final rule published Mid-2016

Until the proposal is finalized, EPA will continue to process tribal 

applications for TAS under its 1991 interpretation of the CWA.
How can states participate in the 

process? 

• See EPA’s Aug. 7, 2015 letter and fact sheet mailed 

to state associations.

• Available in the email acknowledging your registration, 

or from Thomas Gardner, gardner.thomas@epa.gov, or 

(202) 566-0386. 

• Participate in EPA’s webinar for the public (for those 

who miss this state webinar)

• Thursday, Sept. 10, 2015 at 2:00-3:30 p.m. EDT. 

• Register at http://www.horsleywitten.com/tasinfo or call 

Erin Cabral at 508-833-6600. 

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How can states provide comments 

on the proposal? 

• Provide comments to the public docket not later 

than Oct. 6:

• To www.regulations.gov (use Docket ID No. EPA-HQ-OW2014-0461)

• By email, letter, fax, or hand delivery to addresses in FR 

notice

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For more information:

• See Fact Sheet, FAQs, more on EPA’s website at 

http://water.epa.gov/scitech/swguidance/standard

s/wqslibrary/tribal.cfm

• For questions on consultation/coordination: 

Thomas Gardner, gardner.thomas@epa.gov, (202) 

566-0386

• For any other questions: Fred Leutner, 

Leutner.fred@epa.gov, (202) 566-0378

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Questions?

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