UNITED STATES ENVIRONMENTAL PROTECTIONAGENCY WASHINGTON, D.C. 20460



### April 18,2014 OFFICE OF WATER 

### Re: Notification of Consultationand Coordinationon Potential Reinterpretationof Clean Water Act TAS Provisions

Dear Honorable Leader: The U.S. Environmental ProtectionAgency (EPA)is initiating consultation and coordination with federally-recognized Indian tribes concerning a potential reinterpretation of CleanWater Act provisions regardingtreatment oftribes in the same manner as a state (TAS). The reinterpretationcould reduce some ofthe time and effort fortribes submitting applications for TAS for regulatory programsunder the CleanWater Act. Specifically, EPA is considering reinterpreting section 5 

### 18(e)as a delegation by Congressof authority to eligible tribes to administerClean Water Act regulatory programs over their entire reservations. This reinterpretation would replace EPA's current interpretation that applicant tribes need to demonstrate their inherentregulatory authority. All other tribal eligibility requirements established in the Act and EPA's regulations would remain in place.
You may be interested in this rulemaking if:
your tribe has submitted

### -or is considering submitting 

### -an applicationfor TAS for the purpose of administering a CWA regulatory program, 

### or your tribe is one ofthe 48 tribes that are already approved for TAS to administer the water quality standardsprogram, and might seek TAS for other CWA regulatory programs in the future, 

### or you have a general interest in tribal administrationof CleanWater Act regulatory programs. The consultationand coordination process will be conducted in accordance with the

### EPA 

### Policy on Consultation and CoordinationwithIndian Tribes 

### (www.eva.pov/tribal/consultation~consultpm. 

### EPA invites you and your designated consultationrepresentative(s)to participate in this process. The currentphase ofthis process will extend from the date ofthis letter until June 20,2014. Ifwe decide to proceed with the reinterpretation,we expect to offer a second phase later this year afterthe reinterpretationis proposed inthe Federal Register. The EPA will hold two identical consultation and coordination webinars concerning this matter, as listed below. Each webinar will consist oftwo parts. The first part will provide tribes an opportunityto learn more and ask questions about the proposed reinterpretation. The last part of the webinar will be reserved for consultation commentsfrom tribal leaders or their consultation designees.Tribes-only Consultation and Coordination Webinars: "Potential Reinterpretation of Clean Water Act TAS Provisions" Thursday, May 22, 2:00 -4:00 pm EDT Wednesday, May 28, l:00 

### - 3:00 pm EDT The webinars will be held using Adobe Connect. Toregister for the webinar, please visit: http://wu?v.horslevwitten.com/TribalConion, or to register by phone, please call: Erin Cabral at 508-833-6600. You will receive an email confirmation after your registration has been submitted. Following registration and within one week 

### ofthe webinar, you will receive an email with information for accessing the webinar on the day of the event. An archived copy of the Webinar presentation and an audio recording of the webinar will be posted at: http:/lwater.epa.~ov/scitechlsw~uidancelstandards/wslibrar~/tribes index.cfm within 2 weeks after the Webinar. 

### EPA also extends an invitation for tribes to request formal govemment-togovernment consultation during the consultation and coordinationperiod. Enclosed isthe consultation and coordinationplan that includes a description ofthe matter under consultation and the process EPA intends to follow, including dates ofkey events and information onhow you canprovide input onthis matter. This information is also available on 

### EPA 's Tribal Portal I~t~p://~~~'~~~e~c~.~ov/fribal/con~~tlfnfio~z The official EPA contact person for this consultation and coordination process is Beth LeaMond, Office ofWater, (202) 566-0444, Leamond.Beth@epa.gov. Please do not hesitate to contact her should you have any questions or if you would like to request alternate arrangementsto the process outlined in the consultation plan. Whether or not you participate inthis consultationprocess, you would also have the opportunity to provide input on the reinterpretation during the public commentperiod if EPA decides to move forward with this matter. Inthat event, the proposed reinterpretation of Clean Water Act TAS provisions would be published in the Federal Register and would be accessible at repulations.gov. The EPA would accept public comments for 60 days after the proposed rule is published in the Federal Register. We look forward to hearing from you on this important matter. Sincerely,

Elizabeth Southerland Director, Office of Science and Technology

EnclosureConsultation and Coordination Plan for the EPA's Potential Reinterpretation of Clean WaterAct TAS Provisions April 2014
Background Information The 

### U.S. Environmental Protection Agency (EPA) is initiating consultation and coordinationwith federally-recognized Indian tribes concerning a potential reinterpretation of Clean Water Act provisions regarding treatment of tribes in the samemanner as a state (TAS). The reinterpretation could reduce some ofthe time and effort for tribes submitting applications for TAS for regulatory programs under the Clean Water Act. Specifically, EPA is considering reinterpreting section 518(e) as a delegation by Congress of authority to eligible tribes to administer Clean Water Act regulatory programs over their entire reservations, thereby renmoving the requirement for applicant tribes to demonstrate their inherent regulatory authority. This reinterpretation would be supported by, among other things, an analysis of events occurring since 1991when EPA originally interpreted the Act's TASprovisions in the context of a regulatory program. These events include the approach EPA used in implementing the Clean Air Act's TASprovision in 1998, and certain judicial cases.
To accomplish this streamlining, EPA would not need to amend any regulatory text. Instead, EPA would revise its TAS guidance to remove provisions relating to the demonstration of inherent authority, including provisions relating to the so-called 

### Montana test, which addresses tribal inherent regulatory authority over non-member activities.' Instead, applicant tribes would simply confirm their willingness and ability to receive and exercise a delegation of Congressional authority within the identified exterior boundaries oftheir reservation. This action will not modify any other TAS eligibility requirements, such as the need for a tribe to demonstrate its capability forrunning the Clean Water Act program and to identify the exterior reservation boundaries of the area for which it seeks eligibility. Pursuant to existing regulations, EPA would continue to provide an opportunity for comment to EPA on the tribe's TAS application andlor program submission before EPA makes a decision. The EPA is committedto working with tribes to enable eligible tribes' full use of CWA regulatory programs to protect waters ontheir reservations. The proposed approach is consistent with suggestions made by the National Tribal Water Council to EPA's Office of Water in March 2013. 

### Tribal Consultation and Coordination Process and Time Frame The following table lays out the process and timeline for consultation and coordination on this action. Tribes may access this letter, and related consultation information on the EPA Tribal Portal under Tribal Consultation Opportunities, located at 

### http://tcots.epa.eovloita~TConsultation.nsf/TC?OpenView.


## ' This element ofthe current process derives from the Supreme Court's decision in Montana v. US., 450 U.S.544 (1981) and may include, among other things, a demonstration by the tribe that activities on nonmember-owned fee lands within the reservation could have substantial direct effects on the tribe's health or welfare. Page 1of 2

### Date Event
Date of this letter through June 20, 2014

April 22, 2014

May 22, 2014,2:00 pm-4:00 pm Eastern Time

May 28, 2014, 1.00 pm -3:OO pm Eastern Time

Date to be determined (expected in Fall 2014) Extending for 60 days after date of publication Extending up to 60 days after date of publication Consultation and Coordination period before proposal of the reinterpretation
National Tribal Water Council Meeting with EPA: TAS discussion session Tribes-Only Consultation and Coordination Webinar, "Potential Reinterpretation of CWA TAS Provisions" Tribes-Only Consultation and Coordination Webinar, "Potential Reinterpretation of CWA TAS Provisions" Proposed reinterpretation published in Federal Register Public comment period (Tribes may submit written comments) Expected phase 2 of consultation and coordination 

### Contact Information EPA Contact: Beth LeaMond, US.EPA, Mail Code 4305T, 1200PennsylvaniaAvenue, NW, Washington, DC 20460 Phone: (202) 566-0444 E-mail: Leamond.beth@epa.gov

For NTWC members only

To register: htt~:liw.horslevwitten.com/TribalConsultation sr call Erin Cabral at 508-833-6600. EPA Contact: Beth LeaMond, U.S. EPA, Mail Code 4305T, 1200 Pennsylvania Avenue, 

### NW, Washington, DC 20460 Phone: 

### (262) 566-0444 Email: Leamond.beth@epa.gov

To register: 

### http:llwww.horslevwitten.com/TribalConsul~~tion 3r call Erin Cabral at 508-833-6600.. EPA Contact: Same as above

Address and instructions will be provided in the Federal Registernotice

Detailsto be provided at a later date

Tribes may also provide consultation and coordination comments at any time by email to TASreinterpretationfi2epa.gov or by mail to Beth LeaMond at the address shown above.
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