UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

April 18,2014 OFFICE OF 

WATER 

Re: Notification of Consultation and Coordination on Potential Reinterpretation of Clean Water 

Act TAS Provisions 

Dear Honorable Leader: 

The U.S. Environmental Protection Agency (EPA) is initiating consultation and coordination 

with federally-recognized Indian tribes concerning a potential reinterpretation of Clean Water 

Act provisions regarding treatment of tribes in the same manner as a state (TAS). The 

reinterpretation could reduce some of the time and effort for tribes submitting applications for 

TAS for regulatory programs under the Clean Water Act. Specifically, EPA is considering 

reinterpreting section 5 18(e) as a delegation by Congress of authority to eligible tribes to 

administer Clean Water Act regulatory programs over their entire reservations. This 

reinterpretation would replace EPA's current interpretation that applicant tribes need to 

demonstrate their inherent regulatory 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 application for TAS 

for the purpose of administering a CWA regulatory program, or 

your tribe is one of the 48 tribes that are already approved for TAS to administer 

the water quality standards program, and might seek TAS for other CWA 

regulatory programs in the future, or 

you have a general interest in tribal administration of Clean Water Act regulatory 

programs. 

The consultation and coordination process will be conducted in accordance with the EPA Policy 

on Consultation and Coordination with Indian Tribes (www.eva.pov/tribal/consultation~consultpm. EPA invites you and your designated consultation representative(s) to participate in 

this process. The current phase of this process will extend from the date of this letter until June 

20,2014. If we decide to proceed with the reinterpretation, we expect to offer a second phase 

later this year after the reinterpretation is proposed in the Federal Register. 

The EPA will hold two identical consultation and coordination webinars concerning this matter, 

as listed below. Each webinar will consist of two parts. The first part will provide tribes an 

opportunity to learn more and ask questions about the proposed reinterpretation. The last part of 

the webinar will be reserved for consultation comments from 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. To register 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 of the 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 coordination period. 

Enclosed is the consultation and coordination plan that includes a description of the matter under 

consultation and the process EPA intends to follow, including dates of key events and 

information on how you can provide input on this 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 of Water, (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 arrangements to the 

process outlined in the consultation plan. 

Whether or not you participate in this consultation process, you would also have the opportunity 

to provide input on the reinterpretation during the public comment period if EPA decides to 

move forward with this matter. In that 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 

Enclosure 
Consultation and Coordination Plan for the 

EPA's Potential Reinterpretation of Clean Water Act TAS Provisions 

April 2014 

Background Information 

The U.S. Environmental Protection Agency (EPA) is initiating consultation and coordination with 

federally-recognized Indian tribes concerning a potential reinterpretation of Clean Water Act provisions 

regarding treatment of tribes in the same manner as a state (TAS). The reinterpretation could reduce 

some of the 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 

1991 when EPA originally interpreted the Act's TAS provisions in the context of a regulatory program. 

These events include the approach EPA used in implementing the Clean Air Act's TAS provision 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 of their reservation. 

This action will not modify any other TAS eligibility requirements, such as the need for a tribe to 

demonstrate its capability for running 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 committed to working with tribes to enable eligible tribes' full use of CWA regulatory 

programs to protect waters on their 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 of the 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 1 of 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, 

1200 Pennsylvania Avenue, 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 

Register notice 

Details to 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. 

Page 2 of 2