Paula Goodman Maccabee, Esq. Just Change Law Offices

1961 Selby Ave., St. Paul, Minnesota 55104, pmaccabee@justchangelaw.com

Ph: 651-646-8890, Fax: 651-646-5754, Cell 651-775-7128

http://justchangelaw.com

September 5, 2014

Fred Leutner (Leutner.Fred@EPA.gov) 

Office of Science and Technology 

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Mail Code 4305T

Washington, DC 20460

Re: Potential Reinterpretation of a Clean Water Act Provision Regarding Tribal Eligibility to 

Administer Regulatory Programs and Streamlining Section 518(e) Treatment as State

Dear Mr. Leutner:

I work with WaterLegacy, a Minnesota non-profit organization formed to protect Minnesota 

water resources and the communities that rely on them. We've read with interest EPA’s proposal 

under consideration: "Potential Reinterpretation of a Clean Water Act Provision Regarding 

Tribal Eligibility to Administer Regulatory Programs" and the webinar slides from last spring, 

“Rulemaking to Provide More Opportunities for Tribes to Engage in the Clean Water Act Impair

ed Water Listing and Total Maximum Daily Load Program.”

We applaud EPA's proposal that would remove the additional step of requiring Tribes to 

demonstrate regulatory jurisdiction over clean water within reservations under the second test of 

Montana v. United States, 450 U.S. 544 (1981). We understand that the EPA proposes that a new 

interpretive rule would state that Clean Water Act Section 518(e) provides an express delegation 

of authority by Congress to administer water quality standards regulatory programs within 

reservations. 

Although we agree with the statement that Section 518(e) provides such a clear delegation, we 

believe that the EPA’s interpretive rule should also affirm that Tribes have inherent sovereign 

authority recognized in the Montana case and subsequent precedent to regulate water quality in 

order to protect the political integrity, the economic security, the health, or the welfare of the 

Tribe. The EPA’s interpretation that regulatory programs are authorized by Congressional 

delegation and require no additional factual demonstrations does not diminish the inherent 

authority of Tribes to regulate water quality.

WaterLegacy also supports EPA’s proposal to facilitate Tribes in more readily exercising the 

authorities delegated by Congress under Section 518(e) of the Clean Water Act, including 

Impaired Water Listing and Total Maximum Daily Load Program under Section 303(d). 

However, we would respectfully suggest that the approach proposed by the EPA may be

unnecessarily cumbersome.

WaterLegacy would recommend that, rather than proceed separately and incrementally with 

rulemaking for Section 303(d) and, eventually, for the NPDES permit program under Section 
Mr. Fred Leutner

September 5, 2014

Page 2

402, the EPA address these delegated authorities along with the simplification proposed to 

address delegated authority under Section 518(e). 

We perceive no requirement under Section 518(e) for multiple layers of proof whenever a Tribe 

seeks to exercise Clean Water Act authority. In fact, the statute lists all of the areas where a Tribe 

may exercise authority under the Clean Water Act in one series, suggesting that Congress would 

have anticipated one demonstration of authority and capacity would suffice. The statute, thus, 

lists the requirements for a Tribe to demonstrate governance, the functions sought to be exercised 

and capacity under one paragraph stating, “The Administrator is authorized to treat an Indian 

tribe as a State for purposes of subchapter II of this chapter and sections 1254, 1256, 1313, 1315, 

1318, 1319, 1324, 1329, 1341, 1342, 1344, and 1346 of this title to the degree necessary to carry 

out the objectives of this section.” 33 U.S.C. §1377(e), CWA Section 518(e).

WaterLegacy would recommend the following to address treatment as a state for Tribes:

• EPA proceed with the proposed interpretive rule stating that Section 518(e) provides 

express delegated authority to Tribes to administer water quality programs within 

reservations without any additional demonstration of inherent regulatory authority.

• EPA also state in this interpretive rule that nothing in either Section 518(e) or EPA’s

rules or interpretation is intended to or serves in any way to diminish tribal inherent 

sovereign authority to regulate water quality.

• EPA further state in its interpretive rule that in recognition of Congressional delegation of

authority to Tribes to exercise all of the enumerated functions in Clean Water Act Section 

518(e) (33 U.S.C. §§ 1254, 1256, 1313, 1315, 1318, 1319, 1324, 1329, 1341, 1342, 1344, 

and 1346), EPA will also streamline the process whereby Tribes exercise these 

authorities. TAS for any of the enumerated functions in Section 518(e) will be approved 

when the Tribe designates functions and tribal waters where TAS would be exercised and 

demonstrates a reasonable expectation of capacity to carry out these functions.

WaterLegacy believes that interpreting Section 518(e) to provide a broad, unitary delegation of 

Clean Water Act authority to Tribes is consistent with the statutory text, with respect for inherent 

tribal sovereignty and with recent EPA Guidance recognizing tribal rights to self-determination.

It would also be more efficient than a piecemeal approach. We would note that EPA would 

continue to have the authority to review and evaluate compliance with Clean Water Act 

requirements when impaired waters lists, TMDLs and NPDES permits are generated by Tribes.

We look forward to your response and invite contact by phone (651-646-8890) or email 

(pmaccabee@justchangelaw.com). Thank you in advance for your efforts to facilitate tribal

exercise of authority under Section 518(e) of the Clean Water Act.

Sincerely yours,

Paula Goodman Maccabee

Advocacy Director/Counsel for WaterLegacy