Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations 30183 

DATES: May 16, 2016. 

FOR FURTHER INFORMATION CONTACT: 

Emily Seidman, U.S. EPA, Office of 

General Counsel, Mail Code 2344A, 

1200 Pennsylvania Avenue NW., 

Washington, DC 20460; telephone (202) 

564–0906; email at seidman.emily@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. How can I get copies of this document 

and other related information? 

This Federal Register document, the 

petition for reconsideration, and the 

letters granting and denying the petition 

for reconsideration are available in the 

docket the EPA established for the 

OSWRO NESHAP under Docket ID No. 

EPA–HQ–OAR–2012–0360. The 

document identification number for the 

petition for reconsideration is EPA–HQ– 

OAR–2012–0360–0128. The document 

identification numbers for the EPA’s 

response letters are EPA–HQ–OAR– 

2012–0360–0122 and EPA–HQ–OAR– 

2012–0360–0123. 

All documents in the docket are listed 

on the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http://

www.regulations.gov or in hard copy at 

the EPA Docket Center (EPA/DC), Room 

3334, EPA WJC West Building, 1301 

Constitution Ave. NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744 

and the telephone number for the Air 

Docket is (202) 566–1742. 

This Federal Register document, the 

petition for reconsideration, and the 

letters granting and denying the petition 

can also be found on EPA’s Web site at 

http://www.epa.gov/ttn/atw/offwaste/

oswropg.html. The amended OSWRO 

NESHAP was published in the Federal 

Register on March 15, 2015, at 80 FR 

14248. 

II. Judicial Review 

Section 307(b)(1) of the Clean Air Act 

(CAA) indicates which Federal Courts of 

Appeals have venue for petitions for 

review of final EPA actions. This section 

provides, in part, that the petitions for 

review must be filed in the Court of 

Appeals for the District of Columbia 

Circuit if: (i) The agency action consists 

of ‘‘nationally applicable regulations 

promulgated, or final action taken, by 

the Administrator,’’ or (ii) such actions 

are locally or regionally applicable, if 

‘‘such action is based on a 

determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ 

The EPA has determined that its 

denial of the petition for reconsideration 

is nationally applicable for purposes of 

CAA section 307(b)(1) because the 

actions directly affect the OSWRO 

NESHAP, which is a nationally 

applicable regulation. Thus, any 

petitions for review of the EPA’s 

decision denying the petitioners’ 

request for reconsideration must be filed 

in the United States Court of Appeals 

for the District of Columbia Circuit by 

July 15, 2016. 

III. Description of Action 

On March 18, 2015, the EPA 

promulgated a final rule amending the 

OSWRO NESHAP based on the RTR 

conducted for the OSWRO source 

category. 80 FR 14248, March 18, 2015. 

The EPA amended the OSWRO 

NESHAP to revise provisions related to 

emissions during periods of startup, 

shutdown, and malfunction; to add 

requirements for electronic reporting of 

performance testing; to add monitoring 

requirements for pressure relief devices 

(PRDs); to revise routine maintenance 

provisions; to clarify provisions for 

open-ended valves and lines and for 

some performance test methods and 

procedures; and to make several minor 

clarifications and corrections. 

Subsequent to publishing the final rule, 

the EPA received a petition for 

reconsideration submitted jointly by 

Eastman Chemical Company and the 

American Chemical Council (dated May 

18, 2015). This petition sought 

reconsideration of two of the amended 

provisions of the OSWRO NESHAP: (1) 

The equipment leak provisions for 

connectors, and (2) the requirement to 

monitor PRDs on portable containers. 

The EPA considered the petition and 

supporting information along with 

information contained in the OSWRO 

NESHAP amendment rulemaking 

docket (Docket ID No. EPA–HQ–OAR– 

2012–0360) in reaching a decision on 

the petition. The Agency granted 

reconsideration of the PRD monitoring 

requirement in a letter to the petitioners 

dated February 8, 2016. In separate 

letters to the petitioners dated May 5, 

2016, the Administrator denied 

reconsideration of the equipment leak 

provisions for connectors and explained 

the reasons for the denial in these 

letters. These letters are available in the 

OSWRO NESHAP amendment 

rulemaking docket. 

Dated: May 5, 2016. 

Gina McCarthy, 

Administrator. 

[FR Doc. 2016–11252 Filed 5–13–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 123, 131, 233 and 501 

[EPA–HQ–OW–2014–0461; FRL–9946–33– 

OW] 

Revised Interpretation of Clean Water 

Act Tribal Provision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final interpretive rule. 

SUMMARY: Section 518 of the Clean 

Water Act (CWA), enacted as part of the 

1987 amendments to the statute, 

authorizes EPA to treat eligible Indian 

tribes with reservations in a manner 

similar to states (TAS) for a variety of 

purposes, including administering each 

of the principal CWA regulatory 

programs and receiving grants under 

several CWA authorities. Since 1991, 

EPA has followed a cautious 

interpretation that has required tribes, 

as a condition of receiving TAS 

regulatory authority under section 518, 

to demonstrate inherent authority to 

regulate waters and activities on their 

reservations under principles of federal 

Indian common law. The Agency has 

consistently stated, however, that its 

approach was subject to change in the 

event of further congressional or judicial 

guidance addressing tribal authority 

under CWA section 518. Based on such 

guidance, EPA in the interpretive rule 

we are finalizing today concludes 

definitively that section 518 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. This 

reinterpretation streamlines the process 

for applying for TAS, eliminating the 

need for applicant tribes to demonstrate 

inherent authority to regulate under the 

Act and allowing eligible tribes to 

implement the congressional delegation 

of authority. The reinterpretation also 

brings EPA’s treatment of tribes under 

the CWA in line with EPA’s treatment 

of tribes under the Clean Air Act, which 

has similar statutory language 

addressing tribal regulation of Indian 

reservation areas. This interpretive rule 


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30184 Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations 

does not revise any regulatory text. 

Regulatory provisions remain in effect 

requiring tribes to identify the 

boundaries of the reservation areas over 

which they seek to exercise authority 

and allowing the adjacent state(s) to 

comment to EPA on an applicant tribe’s 

assertion of authority. This rule will 

reduce burdens on applicants associated 

with the existing TAS process and has 

no significant cost. 

DATES: This final interpretive rule is 

effective on May 16, 2016. 

ADDRESSES: EPA has established a 

docket for this rule under Docket ID No. 

EPA–HQ–OW–2014–0461. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. 

FOR FURTHER INFORMATION CONTACT: 

Thomas Gardner, Standards and Health 

Protection Division, Office of Science 

and Technology (4305T), Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460; 

telephone number: (202) 566–0386; 

email address: TASreinterpretation@

epa.gov. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

organized as follows: 

I. General Information 

A. Does this interpretive rule apply to me? 

B. What interpretation is the Agency 

making? 

C. How was this rule developed? 

D. What is the Agency’s authority for 

issuing this reinterpretation? 

E. What are the incremental costs and 

benefits of this interpretive rule? 

F. Judicial Review 

II. Background 

A. Statutory History 

B. Regulatory History 

III. How did EPA interpret the CWA TAS 

provision in 1991 when establishing 

TAS regulations for CWA regulatory 

programs? 

IV. What developments support EPA’s 

revised statutory interpretation? 

A. Relevant Congressional, Judicial and 

Administrative Developments 

B. EPA and Tribal Experience in 

Processing TAS Applications for CWA 

Regulatory Programs 

V. EPA’s Revised Statutory Interpretation 

A. What does today’s reinterpretation 

provide and why? 

B. What other approaches did EPA 

consider? 

C. What is EPA’s position on certain public 

comments and tribal and state 

stakeholder input? 

1. Geographic Scope of TAS for Regulatory 

Programs 

2. Treatment of Tribal Trust Lands 

3. Tribal Criminal Enforcement Authority 

4. Special Circumstances 

5. Tribal Inherent Regulatory Authority 

6. Existing Regulatory Requirements 

a. TAS Requirements 

b. Relationship to Program Approvals 

7. Effects on New Tribal TAS Applications 

8. Effects on EPA-Approved State Programs 

VI. How does the rule affect existing EPA 

guidance to tribes seeking to administer 

CWA regulatory programs? 

VII. Economic Analysis 

VIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act (CRA) 

I. General Information 

A. Does this interpretive rule apply to 

me? 

This rule applies to tribal 

governments that seek eligibility to 

administer regulatory programs under 

the Clean Water Act (CWA, or the Act). 

The table below provides examples of 

entities that could be affected by this 

rule or have an interest in it. 

Category Examples of potentially affected or interested entities 

Tribes .............................................. Federally recognized tribes with reservations that could potentially seek eligibility to administer CWA regulatory programs, and other interested tribes. 

States .............................................. States adjacent to potential applicant tribes. 

Industry ........................................... Industries discharging pollutants to waters within or adjacent to reservations of potential applicant tribes. 

Municipalities ................................... Publicly owned treatment works or other facilities discharging pollutants to waters within or adjacent to reservations of potential applicant tribes. 

If you have questions regarding the 

effect of this interpretive rule on a 

particular entity, please consult the 

person listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

B. What interpretation is the Agency 

making? 

Today’s interpretive rule streamlines 

how tribes apply for TAS under CWA 

section 518 for CWA regulatory 

programs including the water quality 

standards program. It eliminates the 

need for applicant tribes to demonstrate 

inherent authority to regulate under the 

Act, thus allowing tribes to implement 

a delegation of authority by Congress. 

Specifically, EPA revises its existing 

interpretation of CWA section 518 to 

conclude definitively that this provision 

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. 

C. How was this rule developed? 

EPA conducted consultation and 

coordination with tribes and states 

before proposing the reinterpretation in 

the Federal Register on August 7, 2015. 

See 80 FR 47430 (August 7, 2015) 

(‘‘proposed rule,’’ ‘‘EPA’s proposal,’’ 

‘‘proposed reinterpretation’’), available 

in the docket for this rule. During the 

60-day public comment period, EPA 

provided informational webinars for the 

public and conducted further 

consultation and coordination with 

tribes and states. 

EPA received a total of 44 comments 

from the public on the proposed 

interpretive rule. A majority (27) of the 

comments expressed support for the 

rule, including unanimous support from 

tribes and tribal organizations that 

responded. Sections IV and V address 

issues and questions about the proposal 

that commenters raised. 

Today’s rule finalizes the proposal, 

reflecting EPA’s consideration of the 

comments and other input received. The 

comments, EPA’s responses to the 

comments, and meeting notes are 

available in the public docket at http:// 

www.regulations.gov. 

D. What is the Agency’s authority for 

issuing this reinterpretation? 

The CWA, 33 U.S.C. 1251, et seq., 

including section 518 (33 U.S.C. 1377). 


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1 In early 2016 EPA proposed to add criteria and 

procedures for tribes to obtain TAS to administer 

the CWA Section 303(d) Impaired Water Listing and 

Total Maximum Daily Load (TMDL) Program. 80 FR 

2791, Jan. 19, 2016. The proposal has not yet been 

finalized and thus is not in effect at this time. 

2Under the CWA and EPA’s regulations, tribes 

can apply for TAS under CWA section 518 for the 

purpose of administering WQS and simultaneously 

submit actual standards for EPA review under 

section 303(c). Although they can proceed together, 

a determination of TAS eligibility and an approval 

of actual water quality standards are two distinct 

actions. 

3EPA has promulgated regulations governing the 

TAS application and review requirements for CWA 

grant funding programs. See, e.g., 40 CFR 35.580– 

588 (CWA section 106 water pollution control 

funding); 40 CFR 35.600–615 (CWA section 104 

water quality cooperative agreements and wetlands 

development funding); 40 CFR 35.630–638 (CWA 

section 319 nonpoint source management grants). 

4Under principles of federal Indian law, 

demonstrations of inherent tribal authority over 

such non-member activities are guided by the 

principles expressed in Montana v. United States, 

450 U.S. 544 (1981), and its progeny. 

E. What are the incremental costs and 

benefits of this interpretive rule? 

This rule entails no significant cost. 

Its only effect will be to reduce the 

administrative burden for a tribe 

applying in the future to administer a 

CWA regulatory program, and to 

potentially increase the pace at which 

tribes seek such programs. See the 

discussion of administrative burden and 

cost in sections VII and VIII.B. 

F. Judicial Review 

This interpretive rule, which sets 

forth EPA’s revised interpretation of 

CWA section 518, is not a final agency 

action subject to immediate judicial 

review. This interpretive rule is not 

determinative of any tribe’s eligibility 

for TAS status. Rather, it notifies 

prospective applicant Indian tribes and 

others of EPA’s revised interpretation. 

Today’s interpretive rule would be 

subject to judicial review only in the 

context of a final action by EPA on a 

TAS application from an Indian tribe for 

the purpose of administering a CWA 

regulatory program based on the revised 

interpretation. 

II. Background 

A. Statutory History 

Congress added CWA section 518 as 

part of amendments made to the statute 

in 1987. Section 518(e) authorizes EPA 

to treat eligible Indian tribes in a similar 

manner as states for a variety of 

purposes, including administering each 

of the principal CWA regulatory 

programs and receiving grants under 

several CWA funding authorities. 

Section 518(e) is commonly known as 

the ‘‘TAS’’ provision, for treatment in a 

manner similar to a state. 

Section 518(e) establishes eligibility 

criteria for TAS, including requirements 

that the tribe have a governing body 

carrying out substantial governmental 

duties and powers; that the functions to 

be exercised by the tribe pertain to the 

management and protection of water 

resources within the borders of an 

Indian reservation; and that the tribe be 

reasonably expected to be capable of 

carrying out the functions to be 

exercised in a manner consistent with 

the terms and purposes of the Act and 

applicable regulations. Section 518(e) 

also requires EPA to promulgate 

regulations specifying the TAS process 

for applicant tribes. See section II.B. 

Section 518(h) defines ‘‘Indian tribe’’ 

to mean any Indian tribe, band, group, 

or community recognized by the 

Secretary of the Interior and exercising 

governmental authority over a federal 

Indian reservation. It also defines 

‘‘federal Indian reservation’’ to mean all 

land within the limits of any reservation 

under the jurisdiction of the United 

States Government, notwithstanding the 

issuance of any patent, and including 

rights-of-way running through the 

reservation. 

B. Regulatory History 

Pursuant to section 518(e), EPA 

promulgated several final regulations 

establishing TAS criteria and 

procedures for Indian tribes interested 

in administering programs under the 

Act. The relevant regulations addressing 

TAS requirements for the principal 

CWA regulatory programs are: 1

• 40 CFR 131.8 for section 303(c) 

water quality standards (WQS). Final 

rule published December 12, 1991 (56 

FR 64876); proposed rule published 

September 22, 1989 (54 FR 39098). 

Referred to hereafter as the ‘‘1991 WQS 

TAS rule’’ or ‘‘1991 TAS rule’’; 

• 40 CFR 131.4(c) for section 401 

water quality certification, published in 

the 1991 WQS TAS rule; 

• 40 CFR 123.31–123.34 for section 

402 National Pollutant Discharge 

Elimination System (NPDES) permitting 

and other provisions, and 40 CFR 

501.22–501.25 for the state section 405 

sewage sludge management program. 

Final rule published December 22, 1993 

(58 FR 67966); proposed rule published 

March 10, 1992 (57 FR 8522); and 

• 40 CFR 233.60–233.62 for section 

404 dredge or fill permitting. Final rule 

published February 11, 1993 (58 FR 

8172); proposed rule published 

November 29, 1989 (54 FR 49180). 

In 1994, EPA amended the above 

regulations to simplify the TAS process 

and eliminate unnecessary and 

duplicative procedural requirements. 

See 59 FR 64339 (December 14, 1994) 

(the ‘‘Simplification Rule’’). For 

example, the Simplification Rule 

eliminated the need for a tribe to 

prequalify for TAS before applying for 

sections 402, 404 and 405 permitting 

programs. Instead, the rule provided 

that a tribe would establish its TAS 

eligibility at the program approval stage, 

subject to EPA’s notice and comment 

procedures already established for state 

program approvals in 40 CFR parts 123 

and 233. The rule retained the 

prequalification requirements 

(including local notice and comment 

procedures) for section 303(c) WQS and 

section 401 water quality certifications. 

Id.; see also, 40 CFR 131.8(c)(2), (3).2

The TAS regulations for CWA 

regulatory programs have remained 

intact since promulgation of the 

Simplification Rule. 

Today’s interpretive rule does not 

address or affect the TAS requirements 

or review process for tribes to receive 

grants.3 The receipt of grant funding 

does not involve any exercise of 

regulatory authority. Therefore, a 

determination of TAS eligibility solely 

for funding purposes does not, under 

existing regulations, require an analysis 

or determination regarding an applicant 

tribe’s regulatory authority. 

III. How did EPA interpret the CWA 

TAS provision in 1991 when 

establishing TAS regulations for CWA 

regulatory programs? 

The TAS eligibility criteria in section 

518(e) make no reference to any 

demonstration of an applicant tribe’s 

regulatory authority to obtain TAS. 

Rather, the relevant part of section 

518(e)—which is section 518(e)(2)— 

requires only that the functions to be 

exercised by the tribe pertain to the 

management and protection of 

reservation water resources. As noted 

above, section 518(h)(1) also defines 

Indian reservations to include all 

reservation land irrespective of who 

owns the land. EPA nonetheless took a 

cautious approach when it issued the 

1991 WQS TAS rule and subsequent 

regulations described in section II.B 

above. The 1991 approach required each 

tribe seeking TAS for the purpose of 

administering a CWA regulatory 

program to demonstrate its inherent 

authority under principles of federal 

Indian law, including gathering and 

analyzing factual information to 

demonstrate the tribe’s inherent 

authority over the activities of 

nonmembers of the tribe on 

nonmember-owned fee lands within a 

reservation.4


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5Brendale v. Confederated Tribes and Bands of 

the Yakima Nation, 492 U.S. 408, 428 (1989). 

Although highly instructive, EPA recognized that 

the statement regarding section 518 was not 

necessary to the plurality’s decision. See 56 FR at 

64880. The five Justices not joining Justice White’s 

opinion did not discuss the CWA provision. 

6The site http://www.epa.gov/wqs-tech/epaapprovals-tribal-water-quality-standards provides a 

list of tribes with TAS eligibility for the section 

303(c) water quality standards and section 401 

water quality certification programs. To date, EPA 

has not approved TAS for any tribe for CWA section 

402 or section 404 permitting. 

7EPA was also upheld in the only case 

challenging the Agency’s approval of actual tribal 

water quality standards under CWA section 303(c) 

(which is a distinct action from EPA’s approval of 

tribal TAS eligibility under section 518). City of 

Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 

1996), cert. denied, 522 U.S. 965 (1997) (water 

quality standards of Isleta Pueblo). 

EPA recognized at the time that there 

was significant support for the 

proposition that Congress had intended 

to delegate authority to otherwise 

eligible tribes to regulate their entire 

reservations under the Act. Notably, in 

a plurality opinion in Brendale v. 

Confederated Tribes and Bands of the 

Yakima Nation, 492 U.S. 408 (1989), 

Justice White had even cited section 518 

as an example of a congressional 

delegation of authority to Indian tribes.5

EPA also stated the Agency’s 

interpretation that in section 518, 

Congress had expressed a preference for 

tribal regulation of surface water quality 

on reservations to assure compliance 

with the goals of the CWA. 56 FR at 

64878–79. Nonetheless, in an 

abundance of caution, EPA opted at the 

time to require tribes to demonstrate, on 

a case-by-case basis, their inherent 

jurisdiction to regulate under the CWA. 

EPA was clear, however, that this 

approach was subject to change in light 

of further judicial or congressional 

guidance. Id. 

For further details about EPA’s 1991 

interpretation of the CWA TAS 

provision, see section III of EPA’s 

proposal. 80 FR at 47433–34. 

IV. What developments support EPA’s 

revised statutory interpretation? 

A. Relevant Congressional, Judicial and 

Administrative Developments 

Since 1991, EPA has taken final 

action approving TAS for CWA 

regulatory programs for 53 tribes.6 Three 

of those decisions were challenged in 

judicial actions. The last challenge 

concluded in 2002. In each of the cases, 

the reviewing court upheld EPA’s 

determination with respect to the 

applicant tribe’s inherent authority to 

regulate under the CWA. Wisconsin v. 

EPA, Case No. 96–C–90 (E.D. Wis. 

1999), aff’d, 266 F.3d 741 (7th Cir. 

2001), cert. denied, 535 U.S. 1121 (2002) 

(Sokaogon Chippewa Community); 

Montana v. EPA, 941 F. Supp. 945 (D. 

Mont. 1996), aff’d, 137 F.3d 1135 (9th 

Cir.), cert. denied, 525 U.S. 921 (1998) 

(Confederated Salish and Kootenai 

Tribes of the Flathead Reservation); 

Montana v. EPA, 141 F.Supp.2d 1259 

(D. Mont. 1998) (Assiniboine and Sioux 

Tribes of the Fort Peck Reservation).7

Notably, the first court to review a 

challenge to an EPA CWA TAS approval 

expressed the view that the statutory 

language of section 518 indicated 

plainly that Congress intended to 

delegate authority to Indian tribes to 

regulate water resources on their entire 

reservations, including regulation of 

non-Indians on fee lands within a 

reservation. Montana v. EPA, 941 F. 

Supp. at 951–52. In that case, the 

applicant tribe, participating as amicus, 

argued that the definition of ‘‘Federal 

Indian reservation’’ in CWA section 

518(h)(1)—which expressly includes all 

land within the limits of a reservation 

notwithstanding the issuance of any 

patent—combined with the bare 

requirement of section 518(e) that the 

functions to be exercised by the 

applicant tribe pertain to reservation 

water resources, demonstrates that 

section 518 provides tribes with 

delegated regulatory authority over their 

entire reservations, including over nonIndian reservation lands. Id. Because 

EPA had premised its approval of the 

TAS application at issue upon a 

showing of tribal inherent authority, it 

was unnecessary for the district court to 

reach the delegation issue as part of its 

holding in the case. Nonetheless, the 

court readily acknowledged that section 

518 is properly interpreted as an express 

congressional delegation of authority to 

Indian tribes over their entire 

reservations. The court noted that the 

legislative history might be ambiguous, 

although only tangentially so, since the 

bulk of the legislative history relates to 

the entirely separate issue of whether 

section 518(e) pertains to non-Indian 

water quantity rights, which it does not. 

Id. The court observed the established 

principle that Congress may delegate 

authority to Indian tribes—per United 

States v. Mazurie, 419 U.S. 544 (1975)— 

and commented favorably on Justice 

White’s statement regarding section 518 

in Brendale. Id. The court also noted 

that a congressional delegation of 

authority to tribes over their entire 

reservations ‘‘comports with common 

sense’’ to avoid a result where an 

interspersed mixing of tribal and state 

WQS could apply on a reservation 

depending on whether the waters 

traverse or bound tribal or non-Indian 

reservation land. Id. Having thus 

analyzed CWA section 518, the court 

concluded—albeit in dicta—that 

Congress had intended to delegate such 

authority to Indian tribes over their 

entire reservations. 

The TAS provision of a separate 

statute—the Clean Air Act (CAA)—and 

the review of that provision in court 

provide additional relevant guidance 

(both congressional and judicial) 

regarding legislative intent to treat 

Indian reservations holistically for 

purposes of environmental regulation by 

delegating authority over such areas to 

eligible Indian tribes. Congress added 

the CAA TAS provision—section 

301(d)—to the statute in 1990, only 

three years after it enacted CWA section 

518. Although CAA section 301(d) predates EPA’s 1991 CWA TAS rule, it was 

not until 1998 that EPA promulgated its 

regulations interpreting the CAA TAS 

provision as an express congressional 

delegation of authority to eligible Indian 

tribes. 40 CFR part 49; 63 FR 7254 

(February 12, 1998) (the ‘‘CAA Tribal 

Authority Rule’’). The U.S. Court of 

Appeals for the D.C. Circuit upheld that 

interpretation two years later. Arizona 

Public Service Co. v. EPA, 211 F.3d 

1280 (D.C. Circuit 2000) (‘‘APS’’), cert. 

denied, 532 U.S. 970 (2001). As 

described below, in the preamble to the 

CAA Tribal Authority Rule and in APS, 

EPA and the D.C. Circuit considered 

significant similarities between the 

CWA and CAA tribal provisions. With 

the benefit of the court’s careful review 

in APS, EPA believes that enactment of 

the CAA TAS provision in 1990 

provides useful guidance from Congress 

regarding its similar intent in 1987 to 

provide for uniform tribal regulation of 

mobile environmental pollutants within 

reservations. Relevant aspects and 

treatment of the CAA TAS provision are 

described below. 

EPA finalized its regulations 

implementing CAA section 301(d) in 

1998. The CAA TAS provision, 

combined with the definition of Indian 

tribe in CAA section 302(r), established 

the same basic TAS eligibility criteria 

for CAA purposes that apply under the 

CWA: i.e., federal recognition, tribal 

government carrying out substantial 

duties and powers, jurisdiction, and 

capability. With regard to jurisdiction, 

EPA carefully analyzed the language 

and legislative history of the relevant 

portion of the CAA TAS provision, CAA 

section 301(d)(2)(B), and concluded that 

Congress had intended to delegate 

authority to eligible Indian tribes to 

administer CAA regulatory programs 

over their entire reservations 

irrespective of land ownership—e.g., 

including over nonmember fee lands 

within the reservation. 63 FR at 7254– 


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8The dissent in APS also concluded that a 

separate provision of the CAA—section 110(o)— 

expressly delegates authority to eligible Indian 

tribes over their entire reservations for the specific 

CAA program addressed in that provision. Id. at 

1301–02. Section 110(o) includes the key language 

cited by the dissent as indicative of express 

congressional delegations of authority to tribes over 

their reservations. Id. 

9Plan EJ 2014: Legal Tools, Office of General 

Counsel, EPA, December 2011. See http://

www3.epa.gov/environmentaljustice/plan-ej/

index.html. 

57. EPA determined that the language of 

the provision distinguished between 

reservation and non-reservation areas 

over which tribes could seek TAS 

eligibility and plainly indicated 

Congress’ intent that reservations will 

be under tribal jurisdiction. Id. By 

contrast, for non-reservation areas, 

tribes would need to demonstrate their 

inherent authority to regulate under 

principles of federal Indian law. Id. 

EPA noted at that time important 

similarities between the CAA and CWA 

TAS provisions. Most notably, the tribal 

provisions of both statutes expressly 

provide eligibility for tribal programs 

that pertain to the management and 

protection of environmental resources 

(i.e., air and water, respectively) located 

on Indian reservations. Id. at 7256. For 

instance, CAA section 301(d) provides 

for tribal regulation of air resources 

‘‘within the exterior boundaries of the 

reservation’’ without any requirement 

for a demonstration by applicant tribes 

of separate authority over such 

reservation areas. CAA section 

301(d)(2)(B). Similarly, CWA section 

518 provides eligibility for tribal 

programs covering water resources 

‘‘within the borders of an Indian 

reservation’’ and expressly defines 

Indian reservations to include all land 

within the reservation notwithstanding 

the issuance of any patent and including 

rights-of-way. CWA sections 518(e)(2), 

(h)(1). By their plain terms, both statutes 

thus treat reservation lands and 

resources the same way and set such 

areas aside for tribal programs. At the 

time EPA promulgated the CAA Tribal 

Authority Rule, however, EPA viewed 

the CAA—which also contained other 

provisions addressing tribal roles—and 

its legislative history as more 

conclusively demonstrating 

congressional intent to delegate 

authority to eligible tribes over their 

reservations. Id. EPA recognized that 

this resulted in different approaches to 

two similar TAS provisions and 

reiterated that the question remained 

open as to whether the CWA provision 

is also an express delegation of 

authority to eligible tribes. Id. EPA also 

cited to the district court decision in 

Montana v. EPA, which, as noted above, 

concluded that CWA section 518 plainly 

appears to delegate such authority to 

Indian tribes. Id. 

Several parties petitioned for judicial 

review of the CAA Tribal Authority 

Rule and challenged whether CAA 

section 301(d) could be properly 

interpreted as a delegation of authority 

by Congress to eligible Indian tribes. 

APS, 211 F.3d at 1287–92. The D.C. 

Circuit carefully analyzed CAA section 

301(d), the relevant legislative history, 

and the judicial precedent on 

delegations of authority to Indian tribes 

and concluded that EPA’s interpretation 

comported with congressional intent. Id. 

The court acknowledged the similarities 

between the CAA and CWA TAS 

provisions, as well as EPA’s different 

approach under the CWA. Id. at 1291– 

92. However, the court also noted with 

significance that EPA’s approach under 

the CWA had not been subjected to 

judicial review and observed favorably 

the district court’s statements in 

Montana v. EPA that section 518 plainly 

indicates congressional intent to 

delegate authority to Indian tribes. Id. 

Ultimately, the D.C. Circuit recognized 

that EPA had taken a cautious approach 

under the CWA but that there was no 

reason EPA must do so again under the 

CAA. Id. 

A dissenting judge in the APS case 

disagreed that CAA section 301(d)(2)(B) 

expressed congressional intent to 

delegate authority to tribes over their 

reservations. Id. at 1301–05. Notably, 

the dissent’s view was predicated 

largely on the absence in section 

301(d)(2)(B) of language explicitly 

describing the reservation areas over 

which tribes would exercise CAA 

jurisdiction as including all reservation 

lands notwithstanding the issuance of 

any patent and including rights-of-way 

running through the reservation 

(emphasis added). Id. The dissent 

viewed this language as critical to an 

expression of congressional intent that 

tribes are to exercise delegated authority 

over all reservation lands, including 

lands owned by nonmembers of the 

tribes. Id. And in the absence of such 

language—which the dissent referred to 

as ‘‘the gold standard for such 

delegations’’—the dissent did not view 

CAA section 301(d)(2)(B) as expressing 

Congress’ intent to relieve tribes of the 

need to demonstrate their inherent 

authority to regulate under the CAA, 

including a demonstration of inherent 

authority over nonmember activities on 

fee lands under the Supreme Court’s 

Montana test. Id. at 1303–04.8 Notably, 

the dissent observed that the key 

‘‘notwithstanding’’ language is, in fact, 

included in the relevant tribal 

provisions of the CWA—i.e., in the 

definition of ‘‘federal Indian 

reservation’’ in CWA section 518(h)(1). 

Id. at 1302 (referencing Brendale, 492 

U.S. at 428). The dissent noted that in 

spite of the statement in Brendale, EPA 

had determined not to treat CWA 

section 518 as a congressional 

delegation; however, the dissent also 

observed that no court had yet resolved 

the issue. Id. 

As the D.C. Circuit stated in APS, no 

court has yet reviewed EPA’s 

interpretation of tribal regulation under 

the CWA on the question of whether 

CWA section 518 constitutes an express 

delegation of authority from Congress to 

eligible Indian tribes to regulate water 

resources throughout their reservations. 

Importantly, members of the three 

courts that have considered the issue 

have favorably viewed such an 

interpretation: The U.S. Supreme Court 

in Brendale, the federal district court in 

Montana v. EPA, and the D.C. Circuit in 

APS. 

In light of these developments, as well 

as EPA’s experience administratively 

interpreting and implementing the CAA 

TAS provision, it is appropriate to 

revisit and revise EPA’s approach to 

TAS under the CWA. In the preambles 

to the CWA TAS regulations from the 

1990s, EPA discussed the possibility of 

reinterpreting CWA section 518 as an 

express congressional delegation of 

authority to tribes based on subsequent 

congressional or judicial guidance. 

Additionally, in 2011 EPA discussed the 

possible reinterpretation of section 518 

in a review of EPA’s legal authorities 

that could help advance environmental 

justice.9 Today’s rule accomplishes such 

a reinterpretation. 

Consideration of Comments 

EPA received numerous comments on 

the proposed rule addressing the 

Agency’s rationale for revising its 

interpretation of section 518. All 

eighteen Indian tribes and the three 

tribal organizations that commented 

expressed strong support for the rule. 

Two states also expressed support for 

tribal opportunities to obtain TAS. 

Several members of the public also 

supported the rule, including a member 

of the Indian law academic community. 

Supportive commenters agreed that the 

plain language of section 518 indicates 

Congress’ intent to delegate authority to 

tribes to regulate their entire 

reservations under the CWA and that 

the cited case law developments 

provide additional support for the 

revised interpretation and a solid basis 

for EPA to finalize the rule. Commenters 

noted the similarities between the CWA 


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and CAA tribal provisions and 

supported EPA’s effort to harmonize the 

treatment of Indian reservations under 

both statutes. Some comments asserted 

that EPA should have treated section 

518 as a congressional delegation all 

along and argued that requiring tribes to 

demonstrate inherent authority to 

regulate under the CWA had imposed 

requirements not included in the statute 

and may have exceeded EPA’s 

authority. EPA appreciates the 

commenters’ support for the rule. 

EPA also received comments from 

several other states, a local government, 

a local government association, two 

operating agents of industrial facilities, 

and one member of the public 

disagreeing with, or questioning, in 

whole or in part EPA’s rationale for the 

revised interpretation of section 518. 

These comments assert that EPA’s legal 

analysis does not support the change in 

statutory interpretation; that there has 

been no definitive court ruling on the 

proper interpretation of section 518; and 

that the judicial statements regarding 

section 518 that EPA cited in the 

proposal represent dicta and not actual 

court holdings on the CWA question. 

The comments also argue that the 

relevant CWA legislative history does 

not support the revised interpretation 

and note that Congress has been aware 

of EPA’s prior interpretation since 1991 

but has taken no action to correct it, 

notwithstanding that Congress amended 

section 518 in 2000. Commenters also 

point to a backdrop of U.S. Supreme 

Court case law addressing limitations on 

inherent tribal authority with regard to 

the activities of non-tribal members and 

assert that the revised interpretation 

would run counter to that line of 

jurisprudence. The comments also 

assert that differences between the CWA 

and CAA and between water and air 

quality issues support treating 

reservations differently under the two 

statutes. 

EPA appreciates but disagrees with 

these comments. EPA recognizes that 

the various judicial statements 

supporting the Agency’s interpretation 

of section 518 as a congressional 

delegation were not central to the 

holdings of the relevant cases. This is 

not surprising in light of the fact that 

EPA has not previously approved a TAS 

application based on this interpretation 

of section 518. Because EPA has 

premised its prior TAS approvals on 

demonstrations of inherent tribal 

regulatory authority, there would be no 

opportunity in the ordinary course of 

judicial review to join the open question 

regarding the proper interpretation of 

the statute. Nonetheless, the 

commenters undervalue the significance 

of the cited judicial statements. For 

instance, although the district court in 

Montana v. EPA did not need to decide 

the issue to uphold EPA’s approval of 

the Salish and Kootenai Tribes’ TAS 

application, the question of whether 

section 518 delegates authority to tribes 

was squarely presented and subjected to 

the court’s careful analysis. The court 

reviewed the statutory language and 

legislative history and clearly 

articulated its view (albeit not its 

holding) that section 518 is properly 

interpreted as a delegation of authority 

to tribes. The D.C. Circuit also expressly 

considered section 518 during its review 

of the CAA tribal provision in APS, with 

the dissenting judge going so far as to 

cite the CWA as including the gold 

standard of statutory language to 

delegate authority to tribes over their 

reservations. EPA continues to view 

these statements as significant judicial 

guidance. EPA also continues to view 

the reference to section 518 in Justice 

White’s opinion in Brendale as an 

important observation from the highest 

federal court that the CWA reflects 

congressional intent to delegate 

authority to tribes. EPA recognizes that 

the reference was not necessary to the 

plurality’s opinion and that the opinion 

does not include an analysis of section 

518. For these and other reasons, EPA 

opted to proceed cautiously in 1991 and 

await further guidance. But EPA’s 

deliberate approach in no way discounts 

or diminishes the value of Justice 

White’s statement toward a proper 

interpretation of section 518. Viewed as 

a whole, the various judicial statements 

regarding section 518 provide ample 

support for EPA’s revised interpretation. 

EPA is also aware of the separate 

Supreme Court jurisprudence 

addressing inherent tribal authority over 

nonmembers on Indian reservations. 

This is, of course, the same line of 

authority that EPA has previously 

applied when tribes sought to regulate 

the activities of nonmembers under the 

CWA. Retained inherent authority is, 

however, only one of the means by 

which tribes may exercise authority 

over their reservations and, in 

particular, over the activities of 

nonmembers. The Supreme Court has 

long recognized Congress’ broad power 

to delegate authority to Indian tribes, 

including the authority to regulate the 

conduct of nonmembers of the tribes. 

See, e.g., United States v. Mazurie, 419 

U.S. 544 (1975). Such delegations are 

neither inconsistent with, nor in 

opposition to, any limitations on 

retained tribal inherent authority. 

Instead, they are a proper exercise of 

Congress’ plenary power under the U.S. 

Constitution with respect to Indian 

tribes. As with the CAA tribal provision, 

such delegations may be appropriately 

designed to address situations where 

Congress views coherent management of 

reservation resources by tribal 

governments as an appropriate means to 

carry out the purposes of a federal 

statute on Indian reservations. As noted 

above, EPA has long viewed the CWA 

tribal provision as expressing a 

congressional preference for tribal 

regulation of reservation water 

resources. EPA has now taken the 

related step of reconsidering and 

revising its interpretation of section 518 

to reflect Congress’ intent to delegate the 

requisite authority to tribes to effectuate 

such regulation. 

EPA also acknowledges that the 

legislative history of section 518 is 

inconclusive regarding congressional 

intent to delegate authority to tribes. 

The commenters, however, overstate the 

degree to which the legislative record 

indicates an absence of such intent. EPA 

carefully analyzed this legislative 

history in the preamble to the 1991 

WQS TAS rule and found that the 

record includes statements that can be 

interpreted to support either view. The 

absence of clarity in the record was 

among the reasons EPA opted to 

proceed initially with a high degree of 

caution and impose a requirement not 

otherwise reflected in the CWA that 

tribes demonstrate inherent authority to 

regulate under the statute. Notably, in 

1996 the district court in Montana v. 

EPA also reviewed this legislative 

history and, while observing that the 

record may be ambiguous, reasoned that 

it was only arguably so because the bulk 

of the congressional statements were 

actually collateral to the issue and 

addressed the separate question of 

whether section 518 affected tribal 

water quantity rights (which it does 

not). More importantly, the key to a 

congressional delegation of authority is 

found in the express language of the 

statute, and not between the lines of 

recorded statements of particular 

congressional members. In relevant part, 

section 518(e) requires only that the 

CWA functions to be exercised by an 

applicant tribe pertain to reservation 

water resources, and section 518(h)(1) 

then uses the ‘‘gold standard’’ language 

to define such reservations to include 

all reservation lands irrespective of 

ownership. This language expresses 

clear congressional intent to delegate 

authority without any separate 

requirement that applicant tribes meet 

an additional jurisdictional test. 

EPA also finds the absence of any 

action by Congress to correct EPA’s 

prior cautious approach to be 


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unpersuasive on the issue of 

congressional intent. No amendment to 

the statute was needed to reflect 

Congress’ intent, since the language of 

section 518 already expressly delegates 

authority to tribes. EPA is also unaware 

of any request considered by Congress 

to revise section 518 with regard to this 

question or otherwise apprise EPA of its 

intent to delegate authority. Further, 

although EPA’s prior interpretation has 

resulted in some additional burdens and 

delays in processing TAS applications, 

EPA has never disapproved a CWA TAS 

application based on an absence of 

tribal regulatory authority (or for any 

other reason), and thus has never taken 

an action directly inconsistent with 

Congress’ intent to delegate authority to 

tribes. In these circumstances, it would 

be inappropriate to interpret 

congressional inaction as a ratification 

of EPA’s prior approach to section 518. 

Further, the fact that Congress in 2000 

enacted a separate targeted amendment 

to section 518 to make a newly created 

program available to tribes without also 

addressing tribal regulatory authority 

sheds no light on the question. In 2000, 

Congress enacted the coastal recreation 

water quality monitoring and 

notification provision at section 406 of 

the CWA and also provided that tribes 

should be able to obtain TAS for that 

program. The fact that Congress did not 

further amend the statute at that time to 

address tribal regulatory authority is 

unrevealing regarding its prior intent in 

1987 to delegate authority to tribes. For 

the reasons described above, there was 

no substantial cause for Congress to 

address tribal jurisdiction at that time. 

In addition, the legislative history of the 

2000 amendment is consistent with 

Congress’ narrow purpose to insert 

section 406 into the list of programs 

identified in section 518 for potential 

TAS. It does not indicate any 

consideration of the issue of tribal 

regulatory authority. Further, CWA 

section 406 establishes a funding and 

monitoring program. It does not entail 

the exercise of any regulatory authority 

by states or tribes. It would have been 

highly anomalous for Congress to 

address tribal regulatory authority as an 

adjunct to establishing a TAS 

opportunity for a non-regulatory 

program. In these circumstances, EPA 

declines to interpret congressional 

inaction as a tacit approval or adoption 

of EPA’s prior approach to tribal 

authority. 

Finally, EPA continues to view the 

analogy between CWA and CAA 

regulation, and between the tribal 

provisions of the two statutes, as 

supportive of today’s rule. Although 

there are differences between the two 

statutes and their relevant histories, 

both evince a clear congressional intent 

(only three years apart) to treat Indian 

reservations holistically and to provide 

for tribal regulation of mobile pollutants 

on reservations irrespective of land 

ownership. The CAA, which authorizes 

TAS over both reservation and nonreservation lands, expresses the 

delegation of authority by 

distinguishing between those two 

categories and clearly placing 

reservations within tribal jurisdiction. 

The CWA authorizes TAS solely for 

reservations. The statute is thus 

somewhat more limited in the 

geographic scope of potential TAS, but, 

as a result, it more directly expresses the 

delegation of authority over the covered 

reservation areas. Section 518(e)(2) 

requires only that the tribal program 

pertain to reservation water resources, 

and section 518(h)(1) unambiguously 

defines reservations to include all 

reservation land notwithstanding 

ownership. EPA also disagrees with a 

comment suggesting that differences 

between airsheds and watersheds 

within Indian reservations support 

treating the two statutes’ tribal 

provisions differently. In particular, the 

comment notes that watersheds can 

have defined beds and banks that cross 

lands with disparate ownership 

patterns. EPA notes that the same is 

essentially true of airsheds, which cover 

reservation lands without regard to 

ownership. As noted by the district 

court in Montana v. EPA, the 

congressional delegation of authority to 

tribes thus comports with common 

sense by avoiding checkerboarded 

regulation within a reservation based on 

land ownership. Montana v. EPA, 941 F. 

Supp. At 951–52. 

B. EPA and Tribal Experience in 

Processing TAS Applications for CWA 

Regulatory Programs 

Based on EPA’s experience to date, 

the TAS application process has become 

significantly more burdensome than 

EPA anticipated in 1991. Many 

authorized tribes have informed EPA 

that the demonstration of inherent tribal 

authority, including application of the 

test established in Montana v. U.S. 

regarding tribal inherent authority over 

the activities of non-tribal members on 

nonmember fee lands, constituted the 

single greatest administrative burden in 

their application processes. 

In the 1991 TAS rule, EPA expressed 

its expert view that given the 

importance of surface water to tribes 

and their members, the serious nature of 

water pollution impacts, and the 

mobility of pollutants in water, 

applicant Indian tribes would generally 

be able to demonstrate inherent 

regulatory authority to set WQS for 

reservation waters, including as applied 

to nonmembers on fee lands under 

federal Indian law principles. Id. at 

64877–79. In light of the Agency’s 

generalized findings regarding the 

relationship of water quality to tribal 

health and welfare, EPA noted that a 

tribe could likely meet the Montana test 

by making a relatively simple factual 

showing that (1) there are waters within 

the subject reservation used by the tribe 

or its members, (2) the waters are 

subject to protection under the CWA, 

and (3) impairment of the waters by 

nonmember activities on fee lands 

would have serious and substantial 

effects on tribal health and welfare. Id. 

at 64879. EPA thus anticipated in the 

early 1990s that applicant tribes would 

face a relatively simple initial burden of 

supplying basic facts to demonstrate 

that they retain requisite inherent 

authority to regulate under the CWA— 

including regulation of nonmember 

activities on fee lands—under 

established federal Indian law 

principles. Id. 

Unfortunately, EPA’s expectations 

have not, as a general matter, been 

realized. Although each TAS 

application has varied according to the 

particular facts and circumstances of the 

applicant tribe and its reservation, the 

general experience confirms that 

demonstrations of inherent regulatory 

authority continue to impose 

unintended administrative burden on 

applicant tribes and to require 

substantial commitments of limited 

tribal and federal resources. In 

particular, the demonstration of 

inherent authority over nonmember 

activities on the reservation under the 

so-called Montana test has created the 

most significant and widespread burden 

and at the same time provides no 

information necessary for EPA’s 

oversight of the regulatory program. 

Tribes have repeatedly expressed their 

concern that the demonstration of 

inherent authority on a case-by-case 

basis is challenging, time consuming 

and costly. EPA’s information about the 

tribes that it has found eligible to 

administer WQS and section 401 

certifications indicates that tribal 

applications for reservations with 

nonmember fee lands, which require an 

analysis of tribal inherent authority 

under Montana, took 1.6 years longer to 

be approved, on average, than 

applications for reservations without 

such lands. 

The elimination of such unintended 

administrative burdens does not, in 

itself, provide a legal rationale to alter 

EPA’s interpretation of section 518. 


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However, streamlining a TAS process 

that has become unnecessarily 

restrictive and burdensome does offer a 

strong policy basis for the Agency to 

take a careful second look at that 

provision and to consider—as it 

contemplated as early as 1991—whether 

intervening events have shed additional 

light on the appropriate statutory 

interpretation. Eliminating such 

unnecessary burdens is consistent with 

longstanding EPA and Executive policy 

to support tribal self-determination and 

promote and streamline tribal 

involvement in managing and regulating 

their lands and environments. See, e.g., 

Executive Order 13175 (65 FR 67249, 

November 9, 2000); Presidential 

Memorandum: Government-toGovernment Relations with Native 

American Tribal Governments (59 FR 

22951, April 29, 1994); EPA Policy for 

the Administration of Environmental 

Programs on Indian Reservations 

(November 8, 1984). 

As explained in section III, EPA has 

long interpreted the CWA as expressing 

Congress’ preference for tribal 

regulation of reservation surface water 

quality. See, e.g., 56 FR at 64878. As 

explained in section IV.A, relevant 

developments definitively confirm that 

section 518 includes an express 

delegation of authority by Congress to 

eligible tribes to regulate water 

resources under the CWA throughout 

their entire reservations. 

V. EPA’s Revised Statutory 

Interpretation 

A. What does today’s revised 

interpretation provide and why? 

EPA today revises its interpretation of 

CWA section 518 and concludes 

definitively that Congress expressly 

delegated authority to Indian tribes to 

administer CWA regulatory programs 

over their entire reservations, including 

over nonmember activities on fee lands 

within the reservation of the applicant 

tribe, subject to the eligibility 

requirements in section 518. In doing 

so, EPA thus exercises the authority 

entrusted to it by Congress to implement 

the CWA TAS provision. 

The effect of this interpretive rule is 

to relieve a tribe of the need to 

demonstrate its inherent authority when 

it applies for TAS to administer a CWA 

regulatory program. An applicant tribe 

still needs to meet all other eligibility 

requirements specified in CWA section 

518 and EPA’s implementing 

regulations. Nonetheless, this rule 

eliminates any need to demonstrate that 

the applicant tribe retains inherent 

authority to regulate the conduct of 

nonmembers of the tribe on fee lands 

under the test established by the 

Supreme Court in Montana v. U.S. 

Instead, an applicant tribe can generally 

rely on the congressional delegation of 

authority in section 518 as the source of 

its authority to regulate its entire 

reservation under the CWA without 

distinguishing among various categories 

of on-reservation land. The tribe may, 

however, need to supply additional 

information to address any potential 

impediments to the tribe’s ability to 

effectuate the delegation of authority. 

EPA bases its revised interpretation of 

CWA section 518 on its analysis in 

section IV above and a careful 

consideration of comments received. 

Most importantly, EPA’s revised 

interpretation is based on the plain text 

of section 518 itself. Section 518(e)(2) 

requires only that the functions to be 

exercised by the applicant Indian tribe 

pertain to the management and 

protection of water resources ‘‘within 

the borders of an Indian reservation.’’ 

Section 518(h)(1) then defines the term 

‘‘federal Indian reservation’’ to include 

all lands within the limits of any Indian 

reservation notwithstanding the 

issuance of any patent, and including 

rights-of-way running through the 

reservation. That definition is precisely 

the same language that the dissent in 

APS stated is the ‘‘gold standard’’ for an 

express congressional delegation of 

regulatory authority to tribes over their 

entire reservations. APS, 211 F.3d at 

1302–03. It is also the language that the 

U.S. Supreme Court reviewed in finding 

congressional delegations to tribes in 

other cases. United States v. Mazurie, 

419 U.S. 544 (1975) (delegation of 

authority to tribes regarding regulation 

of liquor); Rice v. Rehner, 463 U.S. 713 

(1983) (same). Although the legislative 

history of section 518 has, of course, 

remained unaltered since 1987, the 

plain language of the statute and the 

above-described developments provide 

ample support for the revised 

interpretation. 

As EPA explained in section IV.A in 

connection with the CAA, such a 

territorial approach that treats Indian 

reservations uniformly promotes 

rational, sound management of 

environmental resources that might be 

subjected to mobile pollutants that 

disperse over wide areas without regard 

to land ownership. See 59 FR at 43959. 

As specifically recognized by the 

district court in Montana v. EPA, the 

same holds true for regulation under the 

CWA. Montana, 941 F. Supp. at 952. 

B. What other approaches did EPA 

consider? 

EPA considered not revising its 1991 

interpretation of section 518. EPA did 

not choose this option because it would 

continue to impose an unnecessary 

requirement on applicant tribes not 

specified in the CWA to demonstrate 

inherent authority, including meeting 

the Montana test regarding activities of 

nonmembers on their reservation fee 

lands, when they apply to regulate 

under the statute. 

EPA also considered revising the text 

of existing TAS regulations for CWA 

regulatory programs to alter tribal 

application requirements in light of the 

revised interpretation. In particular, 

EPA considered revising the 

requirements relating to tribal 

submissions of statements addressing 

jurisdiction as well as the procedures 

for states and other appropriate entities 

to comment on tribal assertions of 

authority. Had EPA decided to revise its 

regulations, EPA would have issued a 

legislative rule revising the TAS 

application provisions in the Code of 

Federal Regulations. However, EPA 

rejected this approach as both 

unnecessary and counterproductive. As 

described in section V.C.6, EPA 

concludes that the existing regulations 

are appropriately structured to 

accommodate the revised interpretation 

and that the procedures requiring tribal 

legal statements and providing 

opportunities for notice and comment 

continue to serve important purposes. 

Among other things, such procedures 

ensure that applicant tribes will 

continue to adequately address the 

reservation boundaries within which 

they seek to regulate under the CWA as 

well as any potential impediments that 

may in some cases exist to their ability 

to accept or effectuate the congressional 

delegation of authority. Retaining the 

notice and comment requirements will 

also ensure that states and other 

appropriate entities continue to have an 

opportunity to interact with EPA on 

these issues and that EPA’s decision 

making on individual TAS applications 

is well informed. 

Because today’s interpretive rule 

merely explains EPA’s revised 

interpretation of existing statutory 

requirements established in the CWA 

tribal provision—and does not make any 

changes to the existing regulations—an 

interpretive rule is the appropriate 

vehicle to announce EPA’s revised 

approach. 

Consideration of Comments 

One state commented that EPA must 

use a legislative rulemaking process 

because the revised interpretation will 

eliminate the existing regulatory 

requirement that applicant tribes submit 

a statement addressing their jurisdiction 

and will affect states’ opportunity under 


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10 Indian country is defined at 18 U.S.C. 1151 as: 

(a) All land within the limits of any Indian 

reservation under the jurisdiction of the United 

States Government, notwithstanding the issuance of 

any patent, and, including rights-of-way running 

through the reservation; (b) all dependent Indian 

communities within the borders of the United 

States whether within the original or subsequently 

acquired territory thereof, and whether within or 

without the limits of a state; and (c) all Indian 

allotments, the Indian titles to which have not been 

extinguished, including rights-of-way running 

through the same. Indian reservations are thus a 

subset of the broader geographic area that comprises 

Indian country as a whole. 

11Many tribes have rights to hunt, fish, gather 

resources, or perform other activities in areas 

outside of their reservations. To the extent the lands 

on which these rights are exercised are not Indian 

reservation lands as defined at 18 U.S.C. 1151(a), 

tribes cannot obtain TAS under the CWA for water 

resources pertaining to such lands. 

the regulations to comment on tribal 

jurisdiction. A local government also 

expressed concern with EPA’s statement 

in the proposal that the interpretive rule 

is not subject to notice and comment 

requirements of the Administrative 

Procedure Act. 

EPA disagrees that a legislative 

rulemaking is required to issue the 

revised interpretation. As noted above, 

EPA has decided not to revise any 

existing TAS application regulations 

published in the Code of Federal 

Regulations. Contrary to the state 

commenter’s assertion, EPA specifically 

decided to retain the regulatory 

requirements relating to tribal 

jurisdictional statements and states’ 

opportunity to comment on such 

assertions. Although EPA could 

reasonably have chosen to revise or 

eliminate aspects of these regulations, 

EPA has concluded that requiring 

applicant tribes to submit relevant 

jurisdictional information and allowing 

states and other appropriate entities to 

comment on such submissions will 

continue to ensure that any reservation 

boundary or other relevant 

jurisdictional issues are raised during a 

well-informed decision making process. 

Importantly, although this 

interpretive rule is not subject to notice 

and comment requirements of the 

Administrative Procedure Act, EPA 

decided to provide notice and an 

opportunity for comment—in addition 

to other pre- and post-proposal outreach 

to tribes, states, and the public—to 

increase transparency and to allow 

interested parties to provide their views. 

EPA received comments on the proposal 

and has considered them in developing 

today’s rule. A member of the academic 

community expressly supported EPA’s 

use of an interpretive rule as the 

appropriate administrative mechanism 

to publish the revised interpretation. 

EPA appreciates that support. 

C. What is EPA’s position on certain 

public comments and tribal and state 

input? 

In this section, EPA responds to 

several specific topics that were raised 

in public comments on EPA’s proposal 

and in earlier input received from tribes 

and states during pre-proposal and postproposal outreach. 

1. Geographic Scope of TAS for 

Regulatory Programs 

EPA’s final rule does not affect— 

either by expanding or contracting—the 

geographic scope of potential tribal TAS 

eligibility under the CWA. Under 

section 518, tribes can only obtain TAS 

status over waters within the borders of 

their reservations. See, e.g., 56 FR at 

64881–82. Thus, under any approach to 

tribal regulatory authority under the 

CWA, tribal TAS eligibility under the 

CWA is limited to managing and 

protecting water resources within 

Indian reservations. Tribes can seek 

TAS with respect to water resources 

pertaining to any type of on-reservation 

land, including, for example, 

reservation land held in trust by the 

United States for a tribe, reservation 

land owned by or held in trust for a 

member of the tribe, and reservation 

land owned by non-tribal members. 

Conversely, tribes cannot obtain TAS 

under the CWA for water resources 

pertaining to any non-reservation Indian 

country 10 or any other type of nonreservation land.11 Today’s rule does 

not alter that basic limitation of TAS 

under the CWA. 

Consideration of Comments 

EPA received comments from several 

local governments seeking clarification 

of the geographic scope of TAS for CWA 

regulatory purposes and in particular 

noting that some reservations have 

complex histories of congressional 

treatment, including the opening of 

reservations to non-Indian settlement 

through surplus land acts. The 

commenters assert that each surplus 

land statute must be analyzed 

individually to determine whether it has 

altered the land status of the subject 

reservation and note that in some cases 

such statutes may result in situations 

where certain lands are taken out of 

reservation status, even though they 

remain surrounded by the original 

exterior boundaries of a reservation. The 

commenters request that EPA define the 

fee-owned lands that may be covered by 

a TAS application to exclude lands 

settled by non-tribal members pursuant 

to a federal surplus land act. One tribal 

commenter noted that there may be nonreservation inholdings that are 

surrounded by reservation lands and 

disagreed with EPA’s approach of 

requiring that all lands subject to TAS 

for CWA regulatory purposes qualify as 

Indian reservation land. A state 

commenter agreed with EPA that 

reservation boundaries remain a 

relevant issue for tribal TAS 

applications and noted that EPA’s 

revised interpretation would not reduce 

any burdens associated with resolving 

such issues. 

EPA notes that any issues regarding 

the geographic scope of TAS under the 

CWA are outside the scope of this 

interpretive rule. As noted above and in 

the proposal, the revised interpretation 

does not alter in any way EPA’s 

longstanding approach to the limitation 

of TAS in CWA section 518 to lands that 

qualify as reservation lands. This basic 

geographic land status limitation exists 

irrespective of whether tribes must 

demonstrate inherent authority to 

regulate under the CWA or whether they 

may rely on the congressional 

delegation of authority in section 518. 

EPA appreciates the local 

governmental commenters’ questions 

and understands that some Indian 

reservations may have complicated 

histories and that reservation 

boundaries may be altered by 

congressional act. EPA agrees that any 

such issue would need to be addressed 

on a reservation-specific basis and that 

each relevant surplus lands statute 

would need to be evaluated 

individually. Such issues would thus be 

raised and addressed only in the context 

of a particular TAS application from a 

specific tribe. To provide additional 

clarity, however, EPA reiterates as a 

general matter that any land subject to 

TAS approval for CWA regulatory 

purposes must qualify as Indian 

reservation land as defined in CWA 

section 518(h)(1). Thus, consistent with 

EPA’s longstanding approach, any nonreservation land could not be included 

in a CWA TAS approval even if it is 

surrounded by other land that does 

qualify as reservation. Any land located 

within the original exterior boundaries 

of a reservation that has lost its 

reservation status by virtue of an act of 

Congress could thus not be included in 

a CWA TAS approval. EPA has never 

approved CWA TAS over such nonreservation land, and would have no 

authority to do so. EPA thus disagrees 

with the tribal commenter that nonreservation inholdings may be included 

in a TAS approval under the CWA. This 

limitation is imposed in the statute, and 

nothing in today’s final rule alters or 

affects EPA’s approach on this issue. 

EPA does not believe, however, that the 

Agency should establish a separate 

definition for ‘‘fee lands’’ that may be 


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included in a CWA TAS application. 

Section 518(h)(1) of the CWA already 

provides the applicable definition of 

federal Indian reservations for purposes 

of the statute, and there is no need for 

an additional definition. Further, as 

noted by the commenters, each surplus 

land act must be viewed on its own 

terms and in light of its own history and 

treatment. It would thus be 

inappropriate to establish a single onesize-fits-all approach to lands that have 

passed to non-tribal members pursuant 

to such a statute. Only where such lands 

are determined to have lost their 

reservation status would they be outside 

the scope of TAS under the CWA. EPA 

also agrees with the state commenter 

that any issues relating to reservation 

boundaries will remain relevant to the 

TAS application process. Although 

today’s rule does not reduce any 

burdens associated with resolving such 

issues, it also does not increase any 

such burdens. The need for tribes to 

demonstrate their reservation 

boundaries as part of a TAS application 

is beyond the scope of—and is not 

affected by—today’s rule. 

2. Treatment of Tribal Trust Lands 

Today’s revised interpretation does 

not alter EPA’s longstanding approach 

to tribal trust lands. Indian reservations 

include trust lands validly set aside for 

Indian tribes even if such lands have not 

formally been designated as an Indian 

reservation. Many named Indian 

reservations were established through 

federal treaties with tribes, federal 

statutes, or Executive Orders of the 

President. Such reservations are often 

referred to as formal Indian reservations. 

Many tribes have lands that the United 

States holds in trust for the tribes, but 

that have not been formally designated 

as reservations. Under EPA’s 

longstanding approach, and consistent 

with relevant judicial precedent, such 

tribal trust lands are informal 

reservations and thus have the same 

status as formal reservations for 

purposes of the Agency’s programs. See, 

e.g., 56 FR at 64881; 63 FR at 7257–58; 

APS, 211 F.3d at 1292–94. Tribes have 

always been able to seek TAS over such 

tribal trust lands for CWA purposes 

(several tribes have done so previously), 

and nothing in today’s revised 

interpretation alters or affects their 

ability to do so. 

Consideration of Comments 

One state commenter requested 

additional clarification regarding the 

treatment of tribal trust lands for CWA 

TAS purposes, and in particular 

inquired whether tribal trust lands 

outside the borders of a tribe’s formal 

reservation would be included in the 

statute’s definition of reservation. 

Although this issue is outside the scope 

of—and is not affected by—today’s 

interpretive rule, EPA welcomes the 

opportunity to provide further clarity. 

EPA notes that some tribes may have 

tribal trust lands in addition to, and 

separate from, a formal reservation. For 

other tribes, such tribal trust lands may 

constitute the tribe’s entire reservation 

land base. In either case, the tribal trust 

lands qualify as reservation lands for 

CWA TAS purposes. All such lands are 

thus within the borders of an Indian 

reservation for purposes of the statute. 

3. Tribal Criminal Enforcement 

Authority 

EPA’s revised statutory interpretation 

does not affect any existing limitations 

on tribal criminal enforcement 

authority. This interpretive rule relates 

solely to applicant Indian tribes’ civil 

regulatory authority to administer CWA 

regulatory programs on their 

reservations; it does not address or in 

any way alter the scope of tribal 

criminal enforcement jurisdiction. EPA 

is aware that federal law imposes 

certain significant limitations on Indian 

tribes’ ability to exercise criminal 

enforcement authority, particularly with 

regard to non-Indians. EPA has 

previously established regulations 

addressing implementation of criminal 

enforcement authority on Indian 

reservations for those CWA programs 

that include potential exercises of such 

authority. See, e.g., 40 CFR 123.34, 

233.41(f). These regulations provide that 

the federal government will retain 

primary criminal enforcement 

responsibility in those situations where 

eligible tribes do not assert or are 

precluded from exercising such 

authority. 

Consideration of Comments 

Two industry commenters asserted 

that the limitations on a tribe’s authority 

to impose the criminal sanctions that 

are specified as potential penalties in 

the CWA render the tribe unable to 

demonstrate that it is capable of 

carrying out required program functions 

for purposes of TAS eligibility. This 

issue is outside the scope of—and is not 

affected by—today’s interpretive rule. 

As noted above, this rule addresses only 

the civil regulatory authority of 

applicant tribes. The rule also does not 

address the capability element of TAS 

eligibility under the CWA. Nonetheless, 

EPA notes that it disagrees with the 

commenters’ assertion—which, if 

correct, would presumably preclude any 

tribe from demonstrating TAS eligibility 

for a CWA regulatory program that 

includes a criminal enforcement 

component. As described above, EPA’s 

existing TAS regulations provide that 

the federal government will exercise 

primary criminal enforcement authority 

where tribal authority is limited or 

precluded. These regulations were 

promulgated to avoid precisely the 

outcome asserted by the commenters. 

The regulations have been in place for 

decades, and they are unaffected by 

today’s interpretive rule. 

EPA also disagrees with the 

commenters’ assertion that the absence 

of any statutory language in section 518 

addressing the limitations on tribal 

criminal authority is an indication that 

Congress did not intend to delegate 

authority to Indian tribes. EPA notes 

that the limitations on tribal criminal 

enforcement originate in legal principles 

established separate and apart from the 

CWA. Therefore, if the commenters 

were correct, Indian tribes could never 

demonstrate authority—whether 

inherent or congressionally delegated— 

to administer a CWA program that 

includes a criminal enforcement 

component without some statement in 

the statute affirming or otherwise 

addressing the exercise of criminal 

authority. Because the statute contains 

no such statement, this would render 

TAS impossible even under EPA’s prior 

interpretation, and would thus make the 

CWA TAS provision internally 

inconsistent and in significant part a 

nullity. Under the commenters’ 

approach, section 518 would, on the one 

hand, authorize TAS for programs that 

include criminal enforcement, while 

simultaneously precluding such TAS by 

virtue of an absence of congressional 

explanation of how criminal 

enforcement will be exercised. EPA 

disagrees that this could reflect 

Congress’ intent. EPA also notes that the 

Agency has already interpreted the CAA 

tribal provision as including a 

congressional delegation of civil 

regulatory authority to tribes over their 

entire reservations, and that 

interpretation has been upheld in court. 

Like the CWA, the CAA authorizes TAS 

for programs that include a criminal 

enforcement component without 

separately addressing the exercise of 

such authority during program 

implementation. Under both statutes, 

EPA has exercised its authority to 

address this programmatic issue through 

long-established regulations that retain 

primary criminal enforcement with the 

federal government. 

4. Special Circumstances 

There could be rare instances where 

special circumstances limit or preclude 

a particular tribe’s ability to accept or 


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12EPA takes no position in this interpretive rule 

regarding whether any particular tribe or Indian 

reservation is subject to any potential impediment 

relating to effectuation of the congressional 

delegation of regulatory authority or how the CWA 

can be interpreted vis-a`-vis the alleged source of 

any such impediment. Any such issue would need 

to be addressed on a case-by-case basis and with the 

benefit of a full record of relevant information that 

would be developed during the processing of a 

particular TAS application. To the extent EPA is 

ever called upon to make a decision regarding this 

type of issue, such a decision would be rendered 

in the context of EPA’s final action on a specific 

TAS application, and any judicial review of that 

decision would occur in that context. 

effectuate the congressional delegation 

of authority over its reservation. For 

example, there could be a separate 

federal statute establishing unique 

jurisdictional arrangements for a 

specific state or a specific reservation 

that could affect a tribe’s ability to 

exercise authority under the CWA. It is 

also possible that provisions in 

particular treaties or tribal constitutions 

could limit a tribe’s ability to exercise 

relevant authority.12

The application requirements of 

existing CWA TAS regulations already 

provide for tribes to submit a statement 

of their legal counsel (or equivalent 

official) describing the basis for their 

assertion of authority. The statement 

can include copies of documents such 

as tribal constitutions, by-laws, charters, 

executive orders, codes, ordinances, 

resolutions, etc. See 40 CFR 

131.8(b)(3)(ii); 123.32(c); 233.61(c)(2). 

Under today’s rule, the requirement for 

a legal counsel’s statement continues to 

apply and ensures that applicant tribes 

appropriately rely on the congressional 

delegation of authority and provide any 

additional information that could be 

relevant to their ability to accept or 

effectuate the delegated authority. As 

described below in section V.C.6, 

existing CWA TAS and program 

regulations also continue to provide 

appropriate opportunities for other 

potentially interested entities—such as 

states or other Indian tribes adjacent to 

an applicant tribe—to comment on an 

applicant tribe’s assertion of authority 

and, among other things, inform EPA of 

any special circumstances that they 

believe could affect a tribe’s ability to 

regulate under the CWA. 

Consideration of Comments 

EPA received several comments 

asserting that special circumstances 

limit particular tribes’ ability to obtain 

TAS to regulate under the CWA. For 

instance, one state asserted that the 

tribes located within the state are 

precluded under federal laws specific to 

those tribes from obtaining TAS for 

CWA regulatory programs. Another state 

asserted that a tribe located within the 

state is precluded by a federal statute 

specific to that tribe from regulating 

reservation land that is owned in fee by 

nonmembers of the tribe. The state 

noted that if that tribe applied to 

regulate such fee lands, the state would 

avail itself of the opportunity under 

EPA’s regulations to submit comments 

and would assert that the cited federal 

law affects the tribe’s ability to exercise 

such authority. One local government 

commented that the geographic extent 

of a tribe’s governing authority does not 

include the local government and 

provided historical information 

intended to support its position. And 

two industry commenters asserted that 

the tribe upon whose reservation they 

are located has entered into binding 

agreements waiving the tribe’s right to 

regulate the commenters’ facilities, thus 

rendering the tribe unable to obtain TAS 

for CWA regulatory programs over those 

facilities. 

EPA appreciates the information 

about special circumstances provided in 

these comments. Importantly, the 

precise outcome of any such 

circumstance could only be determined 

in the context of a particular tribe’s TAS 

application and upon a full record of 

information addressing the issue. The 

substance of these specific situations is 

thus outside the scope of—and is not 

affected by—today’s rule. However, the 

comments are both illustrative and 

instructive regarding the types of special 

circumstances and jurisdictional issues 

that may affect a tribe’s ability to carry 

out the congressional delegation of 

authority in the CWA tribal provision. 

Other federal statutes may, for instance, 

limit a particular tribe’s or group of 

tribes’ ability to participate, in whole or 

in part, in CWA regulation through the 

TAS process. In addition, before 

approving a tribe’s TAS eligibility, EPA 

would carefully consider whether any 

binding contractual arrangements or 

other legal documents such as tribal 

charters or constitutions might affect the 

tribe’s regulatory authority generally, or 

with regard to any specific members of 

the regulated community. Finally, the 

geographic scope of the reservation 

boundaries over which a tribe asserts 

authority would continue to be a 

relevant and appropriate issue for 

consideration in the TAS process. As 

explained elsewhere, EPA’s existing 

TAS regulations require applicant tribes 

to address these types of issues in their 

jurisdictional statements and provide 

states and other appropriate entities the 

opportunity to comment and inform 

EPA of any potential impediments to 

tribal regulatory authority. These 

comment opportunities help ensure that 

EPA’s decision making is well informed. 

Additional available information 

regarding certain of these special 

circumstances is provided in EPA’s 

Response to Comments document 

included in the docket for this rule. 

During pre-proposal outreach and 

again following proposal of the rule, 

EPA received comments from the State 

of Oklahoma regarding section 10211(b) 

of the Safe, Accountable, Flexible, 

Efficient Transportation Equity Act of 

2005 (‘‘SAFETEA’’), Public Law 109–59, 

119 Stat. 1144 (August 10, 2005). 

Because this provision of federal law 

expressly addresses TAS under EPA’s 

statutes, including the CWA, EPA 

explained in the proposal that section 

10211(b) established a unique TAS 

requirement with respect to Indian 

tribes located in the State of Oklahoma. 

Under section 10211(b), tribes in 

Oklahoma seeking TAS under a statute 

administered by EPA for the purpose of 

administering an environmental 

regulatory program must, in addition to 

meeting applicable TAS requirements 

under the EPA statute, enter into a 

cooperative agreement with the state 

that is subject to EPA approval and that 

provides for the tribe and state to jointly 

plan and administer program 

requirements. This requirement of 

SAFETEA exists apart from, and in 

addition to, existing TAS criteria, 

including the TAS criteria set forth in 

section 518 of the CWA. Today’s rule 

relates solely to the interpretation of an 

existing CWA TAS requirement; it thus 

has no effect on the separate TAS 

requirement of section 10211(b) of 

SAFETEA. In its comments on the 

proposal, the State of Oklahoma 

requested additional information 

regarding the process or sequence of 

events that will be used to ensure that 

this provision of SAFETEA is satisfied 

in the context of particular tribal TAS 

applications that may be submitted 

following finalization of today’s 

interpretive rule. EPA notes that section 

10211(b) expressly contains certain 

procedural requirements—i.e., the state/ 

tribal cooperative agreement must be 

subject to EPA review and approval 

after notice and an opportunity for 

public hearing. Nothing in today’s rule 

alters or affects those requirements. 

Further, because the SAFETEA 

requirement must be satisfied for a tribe 

in Oklahoma to obtain TAS to regulate 

under an EPA statute, the final 

cooperative agreement must be fully 

executed and approved by EPA before 

EPA can approve a regulatory TAS 

application. Because the State of 

Oklahoma is a required signatory to the 

agreement, this sequence of events 


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13 In promulgating the CAA Tribal Authority 

Rule, EPA similarly noted its view that even absent 

a direct delegation of authority from Congress, 

tribes would very likely have inherent authority 

over all activities within Indian reservation 

boundaries that are subject to CAA regulation. 59 

FR at 43958 n.5. 

14The jurisdictional inquiry into the geographic 

scope of a tribe’s TAS application—i.e., the 

boundary of the reservation area that a tribe seeks 

to regulate—imposes no additional burden on 

entities that wish to comment on an applicant 

tribe’s assertion of authority. Under any approach 

to tribal regulatory authority, the geographic scope 

of the TAS application is a relevant jurisdictional 

consideration and thus an appropriate issue for 

potential comment during the TAS process. 

Commenters have, at times, raised such geographic 

issues in the context of previous TAS applications; 

EPA’s rule does not alter the opportunity to do so 

for future applications, or any burden attendant to 

preparing and submitting such comments. 

ensures that the State will have a full 

opportunity to participate in the TAS 

process—separate and apart from 

opportunities that states have through 

EPA’s existing TAS notice and comment 

procedures. Nothing in today’s 

interpretive rule alters or affects 

Oklahoma’s participation in the 

SAFETEA cooperative agreement or the 

requirement that the agreement be in 

place as a prerequisite to TAS for a 

regulatory program. EPA notes that 

there are no regulations establishing 

procedures for the State and applicant 

tribes to negotiate SAFETEA 

cooperative agreements or for tribes to 

submit, and EPA to review, such 

agreements. There is thus flexibility for 

the State and applicant tribes in 

Oklahoma to work together to develop 

these agreements as they deem 

appropriate. 

5. Tribal Inherent Regulatory Authority 

With today’s rule, EPA is not 

intending to assess the extent of tribal 

inherent regulatory authority. As the 

Agency clearly articulated in the TAS 

rules identified in section II.B, the 

importance of water resources to tribes, 

the serious potential impacts of water 

pollution on tribes’ uses of their waters, 

and the mobility of pollutants in water 

all strongly support tribes’ ability to 

demonstrate their inherent authority to 

regulate surface water quality on their 

reservations, including the authority to 

regulate nonmember conduct on fee 

lands under the Supreme Court’s test 

established in Montana. Consistent with 

its 1991 interpretation of section 518, 

EPA concluded that each of the tribes it 

has approved for TAS for CWA 

regulatory programs has demonstrated 

its inherent regulatory authority and has 

demonstrated that the functions it 

sought to exercise pertain to the 

management and protection of 

reservation water resources. All Agency 

CWA TAS determinations challenged in 

court have been upheld. 

Today’s rule does not affect these 

prior TAS approvals. The rule does, 

however, modify EPA’s approach going 

forward to be consistent with Congress’ 

intent to delegate civil regulatory 

authority to eligible tribes. It relieves 

tribes of the administrative burden 

associated with demonstrating their 

inherent regulatory authority in the TAS 

application process. It does not, 

however, alter EPA’s prior views 

regarding the extent of tribal inherent 

regulatory authority.13

Consideration of Comments 

All of the tribal commenters fully 

support EPA’s interpretive rule. Several 

tribes also noted their view that tribes 

possess inherent authority to regulate 

the quality of their reservation waters. 

EPA appreciates these comments and 

reiterates that today’s revised 

interpretation of the CWA tribal 

provision is intended solely to 

effectuate the plain intent of Congress to 

delegate civil authority to tribes to 

regulate water resources on their entire 

reservations under the CWA. Today’s 

rule is not intended as an assessment of 

the scope of retained tribal inherent 

authority. 

Several state, local government, and 

industry commenters asserted that 

under federal law, tribal inherent 

regulatory authority over nonmembers 

of the tribe is limited and that the U.S. 

Supreme Court has consistently 

recognized and affirmed such 

limitations. The commenters appear to 

assert that such limitations argue against 

EPA’s revised interpretation of the CWA 

tribal provision. EPA disagrees. EPA is 

aware of Supreme Court jurisprudence 

addressing retained tribal inherent 

regulatory authority, particularly with 

regard to such authority as applied to 

non-tribal members. However, as 

described above in sections IV and V.A, 

federal law also recognizes Congress’ 

authority to delegate jurisdiction to 

tribes to regulate throughout their 

reservations, including regulation of the 

activities of non-tribal members. A 

relevant reviewing federal court has 

already upheld EPA’s interpretation that 

the Clean Air Act includes such a 

delegation, and the plain language of 

CWA section 518 supports the same 

approach. Issues regarding tribal 

inherent authority are distinct from 

EPA’s interpretation of the express 

statutory language in section 518. 

6. Existing Regulatory Requirements 

Because today’s revised statutory 

interpretation is consistent with existing 

CWA TAS regulatory requirements, EPA 

has not revised any regulatory text in 

the Code of Federal Regulations. 

a. TAS Requirements 

Consistent with today’s rule, tribes 

will rely on the congressional delegation 

of authority in section 518 as the source 

of their authority to regulate water 

quality on their reservations. Under the 

TAS regulations identified in section 

II.B, tribes would still need to address 

and overcome any special 

circumstances that might affect their 

ability to obtain TAS for a CWA 

regulatory program (see section V.C.4), 

and the existing TAS application 

regulations require submission of a legal 

statement that would cover such issues. 

Apart from such special circumstances, 

the main focus in determining the 

extent of an applicant tribe’s 

jurisdiction for CWA regulatory 

purposes will likely be identifying the 

geographic boundaries of the Indian 

reservation area (whether a formal or 

informal reservation) over which the 

congressionally delegated authority 

would apply.14 EPA’s existing CWA 

TAS regulations already provide for 

applicant tribes to submit a map or legal 

description of the reservation area that 

is the subject of the TAS application. 

See 40 CFR 131.8(b)(3)(i); 123.32(c); 

233.61(c)(1); 501.23(c). These provisions 

continue to apply and ensure that each 

tribe applying for a CWA regulatory 

program submits information adequate 

to demonstrate the location and 

boundaries of the subject reservation. 

The existing regulations also provide 

appropriate opportunities for potentially 

interested entities to comment to EPA 

regarding any jurisdictional issues 

associated with a tribe’s TAS 

application. As mentioned in section 

II.B above, EPA’s TAS regulations for 

the CWA section 303(c) WQS program 

include a process for notice to 

appropriate governmental entities— 

states, tribes and other federal entities 

located contiguous to the reservation of 

the applicant tribe—and provide an 

opportunity for such entities to provide 

comment on the applicant tribe’s 

assertion of authority. EPA makes such 

notice broad enough that other 

potentially interested entities can 

participate in the process. 56 FR at 

64884. For example, EPA routinely 

publishes notice of tribal TAS 

applications for the WQS program in 

relevant local newspapers covering the 

area of the subject reservation and in 

electronic media. 

Consideration of Comments 

EPA received comments from local 

governments requesting that EPA ensure 


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direct notice to such governments of 

tribal TAS applications for the CWA 

WQS program. EPA appreciates that 

certain local governments may wish to 

comment on tribal assertions of 

authority to administer CWA WQS. 

However, any issues regarding the 

notice and comment process in EPA’s 

TAS regulations for that program are 

beyond the scope of this interpretive 

rule, which addresses solely EPA’s 

interpretation of section 518 as a 

congressional delegation of authority. 

EPA has retained the regulations 

governing the notice and comment 

process in their entirety and believes 

that the process provides appropriate 

notice to potentially interested entities 

in the area of an applicant Indian tribe’s 

reservation. The process has proven to 

be effective in ensuring that relevant 

issues regarding tribal jurisdiction are 

raised to EPA during the TAS decision 

making process. 

b. Relationship to Program Approvals 

The existing TAS regulations and this 

rule relate solely to the applications of 

Indian tribes for TAS eligibility for the 

purpose of administering CWA 

regulatory programs. They do not 

provide substantive approval of an 

authorized tribe’s actual CWA 

regulatory program. Each program has 

its own regulations specifying how 

states and authorized tribes are to apply 

for and administer the program. 

EPA’s TAS regulations for the CWA 

section 402, 404 and 405 permitting 

programs require an analysis of tribal 

jurisdiction as part of the program 

approval process under 40 CFR parts 

123, 233 and 501 that are described in 

section II.B. As described in the 

Simplification Rule, EPA makes its 

decisions to approve or disapprove 

those programs as part of a public notice 

and comment process conducted in the 

Federal Register. 59 FR at 64340. 

7. Effects on Tribal TAS Applications 

Today’s interpretive rule streamlines 

the TAS application and review process 

for tribes seeking eligibility to 

administer CWA regulatory programs. 

The rule significantly reduces the 

expected time and effort for tribes to 

develop and EPA to review TAS 

applications and could encourage more 

tribes to apply for TAS for CWA 

regulatory programs. As stated above 

(sections V.C.4 and V.C.6), applicant 

tribes would still need to identify their 

reservation boundaries and address any 

special circumstances potentially 

affecting their ability to effectuate the 

congressional delegation of authority 

and obtain TAS to regulate under the 

CWA. 

Any EPA approval of a TAS 

application for a CWA regulatory 

program after May 16, 2016 will be 

based on the delegation of authority 

from Congress as the relevant source of 

authority supporting the tribe’s 

eligibility. Any new tribal TAS 

application for a CWA regulatory 

program submitted after May 16, 2016 

will need to be consistent with the 

interpretation of section 518 expressed 

in this rule. For any pending TAS 

application for CWA regulatory 

programs as of May 16, 2016, EPA will 

consult with the applicant tribe to assist 

it in amending its application if 

necessary to be consistent with this rule 

and to address any process issues. 

8. Effects on EPA-Approved State 

Programs 

EPA’s rule has no effect on the scope 

of existing state regulatory programs 

approved by EPA under the CWA. 

Generally speaking, civil regulatory 

jurisdiction in Indian country lies with 

the federal government and the relevant 

Indian tribe, not with the states. See, 

e.g., Alaska v. Native Village of Venetie 

Tribal Gov’t, 522 U.S. 520, 527 n.1 

(1998). Therefore, in the absence of an 

express demonstration of authority by a 

state for such areas, and an EPA finding 

of that state authority for those Indian 

country waters, EPA has generally 

excluded Indian country from its 

approvals of state regulatory programs 

under the CWA. 

The revised reinterpretation of section 

518 relates solely to the exercise of 

jurisdiction by Indian tribes on their 

reservations; it has no effect on the 

scope of existing CWA regulatory 

programs administered by states outside 

of Indian country. It neither diminishes 

nor enlarges the scope of such approved 

state programs. 

There are uncommon situations 

where a federal statute other than the 

CWA grants a state jurisdiction to 

regulate in areas of Indian country. For 

example, in a few cases EPA has 

approved states to operate CWA 

regulatory programs in areas of Indian 

country where the states demonstrated 

jurisdiction based on such a separate 

federal statute. This rule does not 

address or affect such jurisdiction that 

other federal statutes provide to states. 

Regulations already exist to address 

circumstances where a state or tribe 

believes that unreasonable 

consequences could arise or have arisen 

as a result of differing WQS set by states 

and eligible Indian tribes on common 

bodies of water. Section 518(e) of the 

CWA required EPA to provide a 

mechanism to address such situations. 

The Agency did so at 40 CFR 131.7, 

which establishes a detailed dispute 

resolution mechanism. Today’s rule 

does not affect that process; the process 

remains available as needed to address 

potential state/tribal issues. 

Consideration of Comments 

EPA received comments from several 

states, a local government, and a local 

government association regarding 

potential effects of the rule on state 

water quality programs. Some 

comments asserted that the rule would 

improperly displace existing state 

authority to protect water quality in 

certain Indian reservation areas—e.g., 

lands owned in fee by nonmembers of 

a tribe, or submerged lands owned by 

the states. Related comments argued 

that the rule is unnecessary because the 

states are already implementing clean 

water programs over such areas. One 

state commenter also questioned 

whether the rule would preempt states’ 

ability to apply state water quality laws, 

particularly with respect to non-tribal 

members on non-tribal land. Another 

state commenter cited separate federal 

statutes that grant the state 

environmental regulatory authority, 

including authority to administer CWA 

programs, in Indian territories, and 

asserted that the rule would therefore be 

unlawful in that state to the extent it 

could alter the jurisdictional 

arrangement of those other federal laws. 

EPA appreciates these comments and 

wishes to further clarify the Agency’s 

view that the revised interpretation 

announced today would not affect 

existing EPA-approved state programs 

or other state authorities. Importantly, it 

is EPA’s position that the congressional 

delegation of jurisdiction in CWA 

section 518 relates solely to the 

authority of tribes to administer 

regulatory programs under the CWA. It 

does not address or affect (by enlarging 

or diminishing) the authority of any 

entity—tribe or state—to apply any 

water quality or other program 

established under its laws outside the 

scope of the federal CWA. Any question 

regarding whether a state has sufficient 

authority to apply such state laws to 

non-tribal members on their reservation 

fee lands (or to otherwise apply such 

laws on an Indian reservation), is 

outside the scope of today’s rule and 

would be unaffected by the rule. EPA 

does not, for instance, view Congress’ 

decision to delegate to tribes the 

authority to regulate their reservations 

under the CWA as increasing or altering 

tribal authority to implement any other 

tribal law or program—including nonCWA tribal water quality laws. Nor does 

EPA take the position that the 

congressional delegation of CWA 


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30196 Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations 

15 ‘‘Adoption of the Recommendations from the 

EPA Workgroup on Tribal Eligibility 

Determinations,’’ memorandum from Assistant 

Administrator for Water Robert Perciasepe and 

General Counsel Jonathan Z. Cannon to EPA 

Assistant Administrators and Regional 

Administrators, March 19, 1998. 

16The ‘‘Cannon-Perciasepe’’ approach and related 

guidance to tribes are also reflected in subsequent 

EPA materials, including portions of the ‘‘Strategy 

for Reviewing tribal Eligibility Applications to 

Administer EPA Regulatory Programs,’’ 

memorandum from Deputy Administrator Marcus 

Peacock, January 23, 2008. 

jurisdiction to tribes serves to preempt 

application of any state law on an 

Indian reservation to the extent such 

state law is premised on authority found 

outside the CWA. EPA notes that the 

Agency has similarly taken no position 

that the congressional delegation of 

authority in the CAA tribal provision 

acts as a preemption of state authority 

to apply state air quality laws on Indian 

reservations to the extent such laws are 

outside the purview of the federal CAA. 

Issues regarding a state’s authority to 

implement environmental quality 

programs on reservation fee (or other) 

lands where such programs are outside 

the scope of the federal statutes EPA 

administers are beyond the scope of 

EPA’s oversight and are unaffected by 

today’s rule. 

With regard to state water quality 

programs approved by EPA under the 

CWA, EPA disagrees with the 

commenters’ assertion that today’s rule 

could affect or displace existing state 

authorities. As noted above, under 

principles of federal law, states 

generally lack authority to regulate on 

Indian reservations. EPA has thus 

generally excluded such lands from the 

Agency’s approval of state programs 

submitted to EPA under the CWA (and 

other environmental laws administered 

by EPA). It is thus generally the case 

that states are not approved by EPA in 

the first instance to administer CWA 

regulatory programs on reservations. In 

most cases, therefore, there are no 

existing EPA-approved state CWA 

programs on reservations that could be 

affected or displaced by a congressional 

delegation of authority to Indian tribes. 

States may apply to EPA for CWA 

program approval over reservation 

areas. In such cases, the state would 

need to demonstrate a source of 

regulatory authority premised in federal 

law. Such a demonstration would be 

needed irrespective of whether the 

reservation land at issue is owned by 

non-tribal members or by the state itself. 

In rare circumstances, EPA has in the 

past approved certain state CWA 

regulatory programs on Indian 

reservations. In each case, the relevant 

state’s authority has been based on a 

separate federal statute expressly 

granting the state jurisdiction to regulate 

on the reservation. Today’s rule does 

not affect such EPA-approved state 

programs or otherwise alter the 

apportionment of jurisdiction 

established in those other federal laws. 

Although each case must be assessed in 

light of its own statutory arrangement, 

EPA generally believes that CWA 

section 518 would not affect a separate 

statutory scheme that is specifically 

applicable to a particular state or tribe 

and that expressly provides for state 

environmental regulatory jurisdiction 

on Indian reservation lands and/or 

expressly precludes tribes from 

asserting such authority. This does not 

mean, as asserted by one state 

commenter, that today’s rule would be 

unlawful in such a state. It simply 

means that the congressional delegation 

of authority in section 518 may be 

precluded by a separate federal law, 

with jurisdiction to administer CWA 

regulatory programs being granted to the 

state under that law. As described above 

in section V.C.4, EPA recognizes that 

such unusual circumstances may affect 

certain tribes’ ability to effectuate the 

congressional delegation of authority or 

otherwise obtain TAS to regulate under 

the CWA. A situation where a separate 

federal law specifically apportions 

jurisdiction among a particular state and 

the tribe(s) located in such state could 

be one example of such a circumstance. 

VI. How does the rule affect existing 

EPA guidance to tribes seeking to 

administer CWA regulatory programs? 

As noted in section V.C.6, today’s rule 

does not revise any regulatory text. 

However, it does render some of EPA’s 

existing guidance obsolete. For example, 

parts of a 1998 memorandum to EPA 

staff (the ‘‘Cannon-Perciasepe 

Memorandum’’) 15 provided guidance 

for EPA’s reviews of tribal assertions of 

inherent authority to administer CWA 

regulatory programs. Among other 

things, the memorandum established a 

case-by-case process for EPA to seek 

comments from appropriate 

governmental entities and the public on 

EPA’s proposed factual findings relating 

to an applicant tribe’s assertion of 

inherent authority over nonmember 

activities on reservation fee lands. 

Cannon-Perciasepe Memorandum, p. 6. 

The memorandum also provided 

detailed guidance for implementing the 

Montana test, which, as described 

above, relates to inherent tribal 

jurisdiction over nonmember activity. 

Cannon-Perciasepe Memorandum, 

Attachment C.16 Because applicant 

tribes will no longer need to 

demonstrate inherent jurisdiction, these 

parts of the guidance are no longer 

relevant for TAS applications for CWA 

regulatory programs, and there is no 

further utility for EPA to develop or 

seek comment on factual findings 

relating to tribal inherent authority. 

EPA intends to update its internal 

procedures and its training and 

guidance for applicant tribes to reflect 

these changes consistent with the 

express congressional delegation of 

authority to eligible tribes. 

VII. Economic Analysis 

This rule entails no significant cost. 

Its only effect will be to reduce the 

administrative burden for a tribe 

applying in the future to administer a 

CWA regulatory program, and to 

potentially increase the pace at which 

tribes seek such programs. See the 

discussion of administrative burden and 

cost in section VIII.B (Paperwork 

Reduction Act). 

VIII. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at http://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This interpretive rule is not a 

significant regulatory action and was 

therefore not submitted to the Office of 

Management and Budget (OMB) for 

review. 

B. Paperwork Reduction Act (PRA) 

The information collection activities 

in this interpretive rule have been 

submitted for approval to OMB under 

the PRA. The Information Collection 

Request (ICR) document that EPA 

prepared has been assigned EPA ICR 

number 2515.02. You can find a copy of 

the ICR in the docket for this rule, and 

it is briefly summarized here. The 

information collection requirements are 

not enforceable until OMB approves 

them. 

As discussed in section II.B, EPA’s 

regulations require that a tribe seeking 

to administer a CWA regulatory program 

must submit information to EPA 

demonstrating that the tribe meets the 

statutory criteria described in section 

II.A. EPA requires this information in 

order to determine that the tribe is 

eligible to administer the program. 

This rule streamlines the application 

by revising EPA’s interpretation of 

section 518 to eliminate the need for an 

applicant tribe to demonstrate its 

inherent regulatory authority— 


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Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations 30197 

17The National Governors Association, the 

National Conference of State Legislatures, the 

Council of State Governments, the Western 

Governors Association, the Southern Governors 

Association, the Midwestern Governors 

Association, the Coalition of Northeastern 

Governors, the Environmental Council of the States, 

the Association of Clean Water Administrators, and 

the Western States Water Council. In May and June 

2015, EPA held additional informational meetings 

with the state environmental chiefs of the National 

Association of Attorneys General, members of the 

legal network of the Environmental Council of the 

States, and member states of the Western 

Governors’ Association. 

including demonstrating that it meets 

the Montana test where relevant— 

which had been an element of TAS 

applications not included in the statute. 

As described in the ICR, this rule 

reduces the burden by an estimated 583 

staff hours for a typical tribe, or 27 

percent, and reduces the cost of an 

application to a typical tribe for salaries 

and contractor support by an estimated 

$70,554 per tribe, or 39 percent. 

Respondents/affected entities: Any 

federally recognized tribe with a 

reservation can potentially apply to 

administer a regulatory program under 

the CWA. 

Respondent’s obligation to respond: 

The information discussed in this rule 

is required from a tribe only if the tribe 

seeks to administer a CWA regulatory 

program. See EPA’s regulations cited in 

section II.B of this rule. 

Estimated number of respondents: 

The total potential pool of respondents 

is over 300 tribes with reservations. 

Although there are 567 federally 

recognized Indian tribes in the United 

States, the CWA allows only those tribes 

with reservations to apply for authority 

to administer programs. EPA estimates 

that about six tribes per year will apply 

for TAS for a CWA regulatory program 

following this rule, an increase from the 

existing rate of about four tribes per 

year. The pace of applications could 

increase after the first few years as tribes 

become more familiar with the post-rule 

process. 

Frequency of response: Application 

by a tribe to be eligible to administer a 

CWA regulatory program is a one-time 

collection of information. 

Total estimated burden: 9,642 tribal 

staff hours per year. Burden is defined 

at 5 CFR 1320.3(b). EPA’s ICR analysis 

included all administrative costs 

associated with TAS applications even 

if some of the costs are not strictly 

information collection costs. EPA was 

unable to differentiate the information 

collection costs consistently and 

reliably from other administrative costs 

such as program development costs. 

This estimate could overstate actual 

burden because (a) EPA assumed that all 

applications are first-time applications 

for CWA regulatory programs, and thus 

the tribes submitting them would be 

unable to rely on materials from 

previous applications for different 

regulatory programs; (b) EPA used a 

liberal estimate of the annual rate of 

tribal applications to ensure that the ICR 

does not underestimate tribal burden; 

and (c) EPA used a simplifying steadystate assumption in estimating 

annualized costs. 

Total estimated cost: $674,946, 

including tribal staff salaries and the 

cost of contractors supporting tribal 

applicants. This rule does not entail 

capital or operation and maintenance 

costs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

OMB approves this ICR, the Agency will 

announce that approval in the Federal 

Register and publish a technical 

amendment to 40 CFR part 9 to display 

the OMB control number for the 

approved information collection 

activities contained in this final rule. 

C. Regulatory Flexibility Act (RFA) 

I certify that this interpretive rule will 

not have a significant economic impact 

on a substantial number of small entities 

under the RFA. This rule will not 

impose any requirements on small 

entities. This rule affects only Indian 

tribes that seek to administer CWA 

regulatory programs. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This interpretive rule does not 

contain any unfunded mandate as 

described in UMRA, 2 U.S.C. 1531– 

1538, and does not significantly or 

uniquely affect small governments. The 

rule imposes no enforceable duty on any 

state, local or tribal governments or the 

private sector. 

E. Executive Order 13132: Federalism 

This interpretive rule does not have 

federalism implications. It will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

This rule applies only to tribal 

governments that seek eligibility to 

administer CWA regulatory programs. 

Although it could be of interest to some 

state governments, it does not apply 

directly to any state government or to 

any other entity. As discussed in section 

V.C.8, the rule has no effect on the 

scope of existing state regulatory 

programs approved by EPA under the 

CWA. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

consulted with representatives of state 

governments to obtain meaningful and 

timely input before and after proposal 

for consideration in this rulemaking. By 

letter dated June 18, 2014, EPA invited 

ten national and regional state 

associations 17 to a July 8, 2014, 

informational meeting at EPA in 

Washington, DC. As a result of this 

meeting and other outreach, EPA 

participated in several follow-up 

meetings with interested associations 

and their members as well as certain 

individual states during the months of 

June–September, 2014. By letter dated 

August 7, 2015, to the same groups, EPA 

resumed consultation after the proposal, 

including conducting a webinar on 

September 3, 2015. Records of these 

meetings and copies of written 

comments and questions submitted by 

states and state associations are 

included in the docket for this rule. 

In the public comments, two states 

expressed support for tribal 

opportunities to obtain TAS. Some 

participants disagreed with or 

questioned in whole or in part the 

Agency’s rationale for the 

reinterpretation. Others questioned 

whether the proposal would affect the 

geographic scope of tribal authority 

under the CWA and how the proposal 

would affect a state’s ability to challenge 

a tribe’s application. Some states also 

had questions about issues unique to 

their situations. 

EPA considered all of the state 

comments in developing this final 

interpretive rule. EPA’s responses are 

included in sections IV and V of this 

rule and in the Response to Comments 

document in the docket for this 

rulemaking. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This interpretive rule has tribal 

implications because it will directly 

affect tribes applying in the future to 

administer CWA regulatory programs. 

However, because it neither imposes 

substantial direct compliance costs on 

federally recognized tribal governments, 

nor preempts tribal law, tribal 

consultation was not required by 

Executive Order 13175. In any event, 

EPA consulted and coordinated with 

tribal officials under the EPA Policy on 

Consultation and Coordination with 


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30198 Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations 

Indian Tribes early in the process of 

developing this rule, and again after its 

proposal, to permit them to have 

meaningful and timely input into its 

development. A summary of that 

consultation and coordination follows. 

EPA initiated a tribal consultation and 

coordination process before proposing 

this rule by sending a ‘‘Notification of 

Consultation and Coordination’’ letter 

on April 18, 2014, to all of the 566 then 

federally recognized tribes. EPA 

contacted all federally recognized tribes, 

even though only tribes with 

reservations can apply for TAS under 

the CWA, because it is possible that 

additional tribes could acquire 

reservation lands in the future. The 

letter invited tribal leaders and 

designated consultation representatives 

to participate in the tribal consultation 

and coordination process. EPA held two 

identical webinars concerning this 

matter for tribal representatives on May 

22 and May 28, 2014. A total of 70 tribal 

representatives participated in the two 

webinars, and tribes and tribal 

organizations sent 20 pre-proposal 

comment letters to EPA. On August 7, 

2015, EPA resumed the consultation 

and coordination process with tribes. A 

total of 44 tribal representatives 

participated in webinars in September 

2015. 

EPA received 21 comment letters from 

tribes and tribal associations during the 

public comment period. All tribal 

comments supported the proposal. 

Some tribes had questions about how 

EPA would handle reservation land 

status and boundary matters. Some 

comments urged EPA to help find 

solutions to tribal funding limitations. 

EPA will continue to consider tribal 

resource issues in its budgeting and 

planning process. However, EPA cannot 

assure tribes that additional funding 

will be available for a tribe to develop 

or implement a CWA regulatory 

program. 

EPA considered all of the tribal 

comments in developing this 

interpretive rule. EPA’s responses are 

included in sections IV and V of this 

rule and in the Response to Comments 

document in the docket for this 

rulemaking, 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that concern environmental 

health or safety risks that EPA has 

reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This interpretive rule 

is not subject to Executive Order 13045 

because it does not concern an 

environmental health or safety risk. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This interpretive rule is not subject to 

Executive Order 13211 because it is not 

a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The human health or environmental 

risks addressed by this action will not 

have potential disproportionately high 

and adverse human health or 

environmental effects on minority, lowincome, or indigenous populations. This 

rule affects the procedures tribes must 

follow to seek TAS for CWA regulatory 

purposes and does not directly affect the 

level of environmental protection. 

K. Congressional Review Act (CRA) 

This interpretive rule is exempt from 

the CRA because it is a rule of agency 

organization, procedure or practice that 

does not substantially affect the rights or 

obligations of non-agency parties. 

Dated: May 5, 2016. 

Gina McCarthy, 

Administrator. 

[FR Doc. 2016–11511 Filed 5–13–16; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 90 

[PS Docket No. 13–209, RM–11663; FCC 16– 

48] 

Emission Mask Requirements for 

Digital Technologies on 800 MHz 

NPSPAC Channels; Analog FM 

Capability on Mutual Aid and 

Interoperability Channels 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: This document amends the 

Commission’s rules to guard against 

interference to critical public safety 

communications in the 800 MHz 

National Public Safety Planning 

Advisory Committee (NPSPAC) band 

(806–809/851–854 MHz) and to enhance 

public safety system interoperability in 

the VHF, UHF and 800 MHz bands by 

specifying analog FM as the standard 

emission for use on all interoperability 

channels in these bands. 

DATES: Effective June 15, 2016. 

FOR FURTHER INFORMATION CONTACT: John 

A. Evanoff, Attorney-Advisor, Policy 

and Licensing Division, Public Safety 

and Homeland Security Bureau, (202) 

418–0848 or john.evanoff@fcc.gov and 

Brian Marenco, Electronics Engineer, 

Policy and Licensing Division, Public 

Safety and Homeland Security Bureau, 

(202) 418–0838 or brian.marenco@

fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order in PS Docket No. 13–209, 

FCC 16–48, released on April 25, 2016. 

The document is available for download 

at http://fjallfoss.fcc.gov/edocs_public/. 

The complete text of this document is 

also available for inspection and 

copying during normal business hours 

in the FCC Reference Information 

Center, Portals II, 445 12th Street SW., 

Room CY–A257, Washington, DC 20554. 

To request materials in accessible 

formats for people with disabilities 

(Braille, large print, electronic files, 

audio format), send an email to 

FCC504@fcc.gov or call the Consumer & 

Governmental Affairs Bureau at 202– 

418–0530 (voice), 202–418–0432 (TTY). 

The Report and Order amends the 

rules to require digital technologies to 

comply with Emission Mask H when 

operated in the 800 MHz National 

Public Safety Planning Advisory 

Committee (NPSPAC) band (806–809/

851–854 MHz). The Report and Order 

also amends the rules to require 

equipment to have analog FM capability 

when operating on 800 MHz NPSPAC, 

VHF (150–170 MHz), and UHF (450–470 

MHz) public safety mutual aid and 

interoperability channels. These rule 

changes will help safeguard public 

safety licensees in the NPSPAC band 

from adjacent-channel interference and 

preserve interoperability in the 

NPSPAC, VHF and UHF bands. Finally, 

the Report and Order terminates the 

existing freeze on equipment 

authorization announced in the Public 

Notice, 28 FCC Rcd 12661. 

Procedural Matters 

A. Final Regulatory Flexibility Analysis 

The Final Regulatory Flexibility 

Analysis required by section 604 of the 

Regulatory Flexibility Act, 5 U.S.C. 604, 

is included in Appendix B of the Report 

and Order. 


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