1 of 28 

# Revised Interpretation of Clean Water Act Tribal Provision: Response to Public Comments

This document provides EPA’s response to comments on the proposed interpretive rule, Revised Interpretation of Clean Water Act Tribal Provision, 80 FR 47430 (August 7, 2015). Section number

s identified in this document refer to the sections of the final interpretive rule, available at https://www.epa.gov/wqs

- tech/revised

- interpretation

clean

- water

- act

- tribal

- provision

.
The brief synopses of comment s in this document are provided for the convenience of the reader and are not meant to replac e the full comments. In developing responses, EPA considered the full comments received , which are available individually in the docket for this rulemaking

. To access the docket, g o to www.regulations.gov , enter “EPA

- HQ

- OW

2014

- 0461” in the Search box , and click on “Open Docket Folder.” Individual comments are accessible by selecting “View All” next to “Comments.”2 of 28



## Contents

Comment ID 1 Organization Page 0065 Stockbridge

- Munsee Community 4 0066 Unstated 4 0067 Agua Caliente Band of Cahuilla Indians 4 0068 State of Maine, Office of the Attorney General 5 0069 Pueblo of Laguna 6 0070 Pueblo of Sandia 7 0071 Unknown 7 0072 Village of Hobart, Wisconsin 7 0073 Unknown 8 0074 Sac and Fox Nation 9 0075 Procopio, Cory, Hargreaves & Savitch LLP, on behalf of Pala Band of

Mission Indians 9

0076 Colorado Department of Public Health and Environment 9 0077 Wisconsin Department of Natural Resources 10 0078 Unknown 11 0079 University of Washington School of Law 12 0080 Menominee Indian Tribe of Wisconsin 12 0081 Oklahoma Water Resources Board and Oklahoma Department of

Environmental Quality 12

0082 Unknown 12 0083 Minnesota Pollution Control Agency 13 0084 Little Traverse Bay Band of Odawa Indian 13 0085 Yurok Tribe 13 0086 State of Idaho Department of Environmental Quality 14 0087 South Dakota Department of Environment and Natural Resources 15 0088 Havasupai Tribal Council 16 0089 Southern Ute Indian Tribal Council 16 0090 Salt River Project Agricultural Improvement and Power District

(incomplete copy of comments, see no. 0106) 17

0091 Association of Fish & Wildlife Agencies 17 0092 Mandan, Hidatsa & Arikara Nation, Three Affiliated Tribes, Fort

Berthold Indian Reservation Tribal Business Council 18

0093 Arizona Public Service Company 18 0094 Duchesne County, Utah; Uintah County, Utah; and Wasatch County,

Utah 19

0095 North Dakota Department of Agriculture 20 0096 Nez Perce Tribe 20 0097 Northwest Indian Fisheries Commission 2 1 0098 Prairie Island Indian Community 21 0099 Confederated Tribes of the Colville Reservation 21

1 Prefix “EPA

- HQ

- OW

- 2014

- 0461

- “3 of 28

Comment ID 1 Organization Page 0100 Cities of Duchesne, Myton, and Roosevelt, Utah 22 0101 State of Utah 22 0102 Lower Elwha Klallam Tribe, Port Angeles, Washington 23 0103 State of Michigan 24 0104 Quartz Valley Indian Reservation 25 0105 Tribal Caucus of EPA Region 10 Regional Tribal Operations Committee 26 0106 Salt River Project Agricultural Improvement and Power District 26 0107 The Suquamish Tribe 28 0108 United South and Eastern Tribes, Inc. 284 of 28

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0065 Author Name: Gregory Miller, Tribal Vice President Organization: Stockbridge

- Munsee Community
Support s the proposed rule

. Congress’ inclusion of section 518 as upheld by the courts is a clear statement that Indian tribes have authority to administer Clean Water Act programs on their reservations. Support s section V.C addressing tribal trust lands, and presents justifying case law.
Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule

. EPA also appreciates the commenter’s support for the Agency’s approach to tribal trust lands, which, as explained in section V.C.2 of the final interpretive rule, is a longstanding a pproach that is well

- settled and unaltered by the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0066 Author Name: Anonymous Organization: Unstated
Agrees that waters within Native American tribal boun daries should be subject to the provisions of the Clean Water Act, no different than any other waters under public trust. Provides views on the importance of scientific evaluation of aqueous resource s and suggests the need for tribal training

. Response : EPA appreciates the comments. See s ection IV.A of the final interpretive rule. Although EPA may agree that scientifically designed sampling and analysis is important, these activities are beyond the scope of

– and are not affected by

– this interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0067 Author Name: Margaret E. Park, AICP, Director of Planning & Natural Resources Organization: Agua Caliente Band of Cahuilla Indians

Asserts that t he p roposed interpretation will be beneficial to tribes , and cites reduced costs and shortened timeframes

. Asserts that tribes possess inherent authority to manage, protect, and regulate reservation waters, including on nonmember fee lands.
Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule. With regard to inherent tribal authority, see EPA’s response in section V.C.5 of the rule.5 of 28

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0068 Author Name: Janet T. Mills, Maine Attorney General Or ganization: State of Maine , Office of the Attorney General
Asserts that legislation specifically applicable in Maine grants the State environmental regulatory jurisdiction throughout the State, including in Indian territories, and that such legislation pre cludes other statutes such as the Clean Water Act from affecting or preempting the State’s jurisdiction in such areas absent an express provision applying such statute in Maine. Concludes that the revised interpretation would be unlawful with respect to Ma ine.
Response : EPA appreciates the Maine Attorney General’s comments, which are instructive regarding a type of special circumstance that can exist with regard to specific tribes and states and present unique jurisdictional arrangements that would need to be considered in assessing any potential application of the CWA tribal provision. EPA has generally addressed such special circumstances in sections V.C.4 and V.C.8 of the final interpretive rule. As explained there, the precise outcome of any such circums tance 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

– the rule , a nd EPA takes no position in th e 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 int erpreted vis

- à

- vis the alleged source of any such impediment. 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 a ny judicial review of that decision would occur in that context.
EPA notes, however, that the Agency is well aware of the unique apportionment of jurisdiction set forth in the Maine Indian Claims Settlement Act ( MICSA, 25 U.S.C. §§ 1721, et seq. ), which ratifies the Maine Implementing Act ( 30 M.R.S. §§ 6201, et seq. ) , and the Aroostook Band of Micmacs Settlement Act (25 U.S.C. § 1721), which ratifies the Micmac Settlement Act (30 M.R.S. §§ 7201, et seq. )

. Based on the grant of environmental regulat ory authority provided in these statutes , EPA has previously approved the State to administer CWA programs ( i.e. , National Pollutant Discharge Elimination System permitting and Water Quality Standards) in tribal territories in Maine. Today’s interpretive r ule does not affect such EPA

- approved programs administered by Maine or otherwise alter the apportionment of jurisdiction established in the federal settlement statutes enacted in connection with Maine and the four federally recognized tribes located in th at state

. EPA is also aware of sections 1725(h) and 1735(b) of MICSA, which address applicability o f federal laws that accord special rights or status to Indian tribes. These provisions generally preclude application of such federal laws to the extent suc h application would affect or preempt Maine’s jurisdiction or the application of Maine’s laws as provided for in MICSA. As the Maine A ttorney General ’s comment notes, legislative history associated with the enactment of MICSA and separate legislative histo ry associated with the enactment of CWA section 518 include statements express ing a general understanding that tribal regulation under the federal Clean Air Act (CAA) and CWA, respectively, that interferes with6 of 28

Maine’s jurisdiction would be impermissible. Although the intersection of the CAA or CWA tribal provision and the Maine Indian settlement acts would only become ripe for a final EPA decision in the context of a specific tribal application to administer an environmental regulatory program, EPA recogni zes that the settlement acts’ apportionment of jurisdiction and savings provisions raise significant questions about tribal environmental regulation under EPA’s statutes in Maine and that these questions would need to be addressed

– with an opportunity for comment by Maine and other potentially interested entities

– in the context of any such tribal application.
To date, EPA has not approved any of the tribes in Maine to regulate under the federal environmental laws administered by the Agency (none of which expressly appl ies the respective tribal provisions in Maine) and has not had occasion to address the effect of the settlement acts on the tribes’ eligibility to regulate to implement a federal environmental program in a final Agency decision . This does not mean that EPA’s interpretation that CWA section 518 delegates authority to eligible Indian tribes to regulate their reservations

– or EPA’s prior and well

- settled similar interpretation of the CAA tribal provision

– is unlawful. As explained in the fin al interpretive rule, it simply means that the congressional delegation of authority must be assessed in connection with separate federal law (in this case, the Maine settlement acts) , that grant s jurisdiction to administer regulatory programs to a state a nd that may preclude tribal regulation . A situation where a separate federal law specifically apportions jurisdiction among a particular state and the tribe(s) located in such state is an example of a special circumstance relevant to effectuation of the co ngressional delegation of authority that would need to be addressed in any tribal application for eligibility to regulate under the CWA

. 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 a sserting such authority.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0069 Author Name: Virgil A. Siow, Governor Organization: Pueblo of Laguna
Supports the proposed reinterpretation. Cites the inherent authority demonstration as the most time

consuming portion of the Pueblo’s own TAS application. Supports the proposal’s legal analysis

. Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule.7 of 28

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0070 Author Name: Isaac Lujan, Governor Organization: Pueblo of Sandia
Supports the proposed reinterpretation. Also supports the view expressed in EPA’s proposal tha t tribal trust land should be treated as reservation land. The Pueblo is concerned that the “ SAFETEA ” law that is applicable to Oklahoma tribes , discussed by EPA in section V.E of the proposal, infringes on tribal sovereignty , and should have been “reinter preted” by EPA

. Response: EPA appreciates the comments supporting the proposal

. See section IV.A of the final interpretive rule. EPA also appreciates the commenter’s support for the Agency’s approach to tribal trust lands, which, as explained in section V. C.2 of the final interpretive rule, is a longstanding a pproach that is well

- settled and unaltered by the final interpretive rule. With regard to the “SAFETEA” provision, see EPA’s discussion in section V.C.4 of the interpretive rule. As EPA explained, the SAFETEA provisions affecting Oklahoma tribes are unaffected by the final interpretive rule. Any interpretation of those provisions would be beyond the scope of this interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0071 Author Name: Anonymous Organiza tion: Unknown
Believes the Agency should go forward with the proposed rule.
Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0072 Author Name: Andrew J. Vickers, Hobart Village Administrator Organization: Village of Hobart, Wisconsin
Expresses concern with tribal regulation of non

- tribal members on Indian reservations and with TAS generally. Argues that TAS is redundant of state authority on reservations and opposes any additional delegation of authority to Indian tribes. Cites a 2013 U.S. Supreme Court decision ( Tarrant Regional Water Dis trict v. Herrman , 133 S. Ct. 2120 (2013)) regarding state waters and p rovides several citations and descri ptions addressing the commenter’s views regarding the Oneida Indian Reservation. States that the commenter is a waiting issuance of an EPA MS

- 4 permit and operates a municipal water sanitary sewer system and storm water management utility

. Response: EPA ap preciates the commenter’s concerns . EPA, however, does not agree that they present legal arguments inconsistent with the revised interpretation of CWA section 518 set forth in today’s final8 of 28

interpretive rule . EPA recognizes that many Indian reservations ar e home to mixed populations of tribal and non

- tribal members and that non

- tribal members may own land on Indian reservations and in some

cases may live in largely non

- Indian communities or towns. However, the CWA expressly authorizes tribes to seek eligibi lity to administer regulatory programs over their entire reservations (inclusive of the activities of non
- tribal members on their lands); and consistent with the geographic scope of the CWA tribal provision , EPA has previously approved tribes to regulate on their reservations under the statute. EPA disagrees that such tribal regulation is redundant of state authorities or activities under the federal CWA . As explained in section V.C.8 of the final interpreti ve rule, state programs under the CWA generally exclude Indian country and thus do not apply on Indian reservations in the absence of a separate federal authorization of state jurisdiction and express approval by EPA . There is thus no overlap between exist ing state regulatory programs under the CWA and potential tribal programs. EPA also notes

– as explained in both the proposed and final interpretive rules

– that it is Congress, not EPA, that has established TAS opportunities for, and expressly delegated i ts authority to, eligible Indian tribes. EPA also disagrees that the Supreme Court’s decision in Tarrant is inconsistent with the Agency’s revised interpretation of CWA section 518. That case involved a dispute between two states over water quantity rights that were apportioned pursuant to an interstate compact covering a shared river basin . It did not address the CWA , Indian tribes, or any interpretation of law relevant to C ongress’ delegation of regulatory authority to eligible tribes for purposes of carr ying out CWA water quality programs. EPA also notes that any permits or other regulatory actions associated with the commenter’s specific activities are outside the scope of the final interpretive rule.
EPA appreciates the various historical references an d descriptions provided by the commenter with respect to the Oneida Indian Reservation. EPA notes that these references and the status of any specific Indian reservation are outside the scope of today’s interpretive rule. However, as explained in sections V.C.1 and V.C.6 of the interpretive rule, the status and boundaries of a reservation will continue to be a relevant issue in the context of a specific TAS application from a tribe seeking eligibility to regulate under the CWA. Under existing regulatory req uirements, appropriate governmental entities ( and , as matter of EPA policy, other interested stakeholders) will have an opportunity to comment on tribal assertions of authority and provide relevant information to EPA addressing the boundaries of the

reserv ation identified in the tribal application. It would only be in that context that EPA would take a final action addressing the boundaries of any specific reservation.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0073 Author Name: Anonymous Organization: Unknown
Express es concerns about poor water quality on the west side of Lake Sacajawea at New Town , ND , related to “oil booms

. ”
Response: EPA appreciates the commenter’s concerns . T his topic is beyond the scope of

– and is not affected by

– this interpretive rule.9 of 28

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0074 Author Name: Kay Rhoads, Princip a l Chief Organization: Sac and Fox Nation
Support s the proposal, particularly as the Nation considers implementing its own CWA programs. Asserts that tribal authority has already been esta blished, and that the reinterpretation will save effort and costs.
Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule. With regard to inherent tribal authority, see EPA’s response in section V.C.5 of the rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0075 Author Name: Walter E. Rusinek Organization: Procopio, Cory, Hargreaves & Savitch LLP , on behalf of Pala Band of Mission Indians (Pala Band)

The Pala Band supports the proposal in general ( citing cost and time savings). Disagrees , however, with the limitation on geographic scope of TAS , specifically with EPA’s approach to the term : “ otherwise within the borders of a n Indian reservation

. ” C it es case law and rights relating to in

- holders to justify that TAS should also apply to certain parcels of land that are within the exterior boundaries of the Pala Reservation, but which may not ever have been part of the R eservation.
Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule. EPA notes that t he issue of non
- reservation inholdings that are surrounded by reservation lands is generally beyond the scope of

– and is not affected by

– this interpretive rule. As explained in s ection V.C.1 of the interpretive rule, the rule does not affect, either by expanding or by contracting, the geographic scope of potential tribal TAS eligibility under the CWA. EPA’s longstanding approach is that TAS under the statute is limited to lands that qual ify as reservation lands. That approach is based on the language of section 518 and has been stated, among other places, in the context of EPA’s promulgation of existing CWA TAS regulations.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0076 Author Name: Larry Wolk, Exe cutive Director Organization: Colorado Department of Public Health and Environment
Generally supportive of the proposal. Asserts that Public Law 98

- 290 establishes special circumstances that would limit or preclude the Southern Ute Tribe from obtain ing TAS over fee lands within the exterior boundaries of the Tribe’s reservation

.10 of 28

Response: EPA appreciates the comments supporting the proposal. See section IV.A of the final interpretive rule. With regard to special circumstances , see section s V.C.4 and V.C.8 of the rule. As EPA has explained, any special circumstances that are specific to a particular state or tribe and that may be relevant to effectuation of section 518’ s congressional delegation of authority would be addressed solely in the context of EPA’s final decision on a particular tribe’s TAS application and upon a full record of information addressing the issue , and any judicial review of that decision would occur in that context

. The substance of these specific situations is thus outside the scope of

– and is not affected by

– the final interpretive rule, and EPA takes no position in the interpretive rule regarding whether any particular tribe or Indian reservation is subject to any potential impediment relating to effectuation of the congressional de legation of regulatory authority or how the CWA can be interpreted vis

- à

- vis the alleged source of any such impediment. With regard to the Southern Ute Tribe, any final decision regarding P

. L

. 98

- 290 would thus need to occur in the context of an EPA decisi on on a TAS application by that Tribe. EPA notes that the Agency is familiar with P

. L

. 98

- 290 and h as had occasion in the past to review certain aspects of that statute in the context of an application by the Southern Ute Tribe to administer a regulatory p rogram under the federal Clean Air Act (a statute which, like the CWA, EPA interprets as including an express delegation of authority from Congress to eligible Indian tribes to regulate their entire reservations) . In that instance and in light of P

. L

. 98

- 2 90 , the Tribe and the State of Colorado entered into an agreement regarding administration of the subject air quality program that was affirmed in special legislation by Congress. Given those circumstances, any question regarding an effect of P

. L

. 98

- 290 on the Tribe’s ability to operate the program was not before EPA to address

.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0077 Author Name: Timothy Andryk, Chief Counsel Organization: Wisconsin Department of Natural Resources

Asserts that Wisconsin continues to respect and recognize tribal sovereignty, but disagrees that the legal authorities cited in the proposed interpretive rule support EPA’s revised interpretation. Argues that the cited legal authorities contain only dicta and that no court has held that the CWA constitutes a delegation of authority to tribes. Cites Tarrant Regional Water District v. Herrman , 133 S. Ct. 2120 (2013) as supporting states’ rights over navigable waters and the soils underlying such waters and asserts that Wisconsin obtained title to the navigable waters of the S tate and their beds under the equal footing doctrine. Asserts that EPA must use notice and comment legislative rulemaking to repeal the requirement that tribes demonstrate authority to regulate under the CWA.
Response: EPA appreciates Wisconsin’s continuing respect for tribal sovereignty. EPA, h owever, disagrees with the State ’s comment that the legal citations identified in the interpretive rule are insufficient to support the revised interpretation of CWA section 518. EPA provides a detailed response to comments regarding EPA’s legal citations in section IV.A of the final interpretive rule. EPA also notes that tribal regulation of water quality under the CWA is not dependent on ownership of the water or of the beds and banks underlying the water. Thus, irrespective of state ownership under the equal footing do ctrine, eligible11 of 28

tribes may assume the regulatory roles expressly envisioned for them by Congress in the CWA. Finally, EPA has responded to comments regarding the Agency’s use of an interpretive rule to announce the revised interpretation of CWA section 51 8 at section V.B of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0078 Author Name: Anonymous Organization: Unknown

A sserts that states have authorities over non

- tribal members within Indian reservations and that the revised interpretation o f CWA section 518 will affect states’ ability to protect state citizens residing on Indian reservations. Asserts that tribal constitutions provide no tribal authority over non

- tribal persons, that federal agencies have expanded tribal authority using regul atory schemes such as Treatment As States, and that EPA is offering 300 Indian tribes its federal agency authority over non

- members and

non
- member properties. Asserts that EPA overlooked the U.S. Supreme Court’s decisions in Tarrant Regional Water District v. Herrman , 133 S. Ct. 2120 (2013) and Nevada v. Hicks , 533 U.S. 353 (2001).
Response: EPA disagrees with the comments. With regard to the comments addressing state authority to administer environmental regulatory programs in Indian country under EPA’s statutes, see section V.C.8 of the final interpretive rule. As explained there, state CWA programs are generally not approved by EPA in Indian country in the absence of an express congressional authorization of state jurisdiction and express approval by EPA. Such state programs would thus not be subject to displacement by tribal regulation in t hat they would generally not apply on reservations in the first instance. EPA also notes that tribal opportunities to apply for eligibility to administer CWA regulatory programs were established by Congress in the statute. They do not originate in “Executi ve Branch...regulatory schemes.” Although EPA also disagrees with the comment’s assertion that tribal constitutions preclude exercises of authority

over non
- tribal members as a general matter, EPA notes

– as explained in section V.C.4 of the final interpreti ve rule

– that any special circumstance relating to a particular tribe’s constitution that may affect that tribe’s ability to effectuate the congressional delegation of authority would be addressed in the context of a specific TAS application, subject to a n opportunity for the relevant state and other interested entities to provide comment. Finally, EPA disagrees that the Supreme Court’s decision s in Tarrant and Hicks are inconsistent with the Agency’s revised interpretation of CWA section 518. Tarrant invo lved a dispute between two states over water quantity rights that were apportioned pursuant to an interstate compact covering a shared river basin. It did not address the CWA , Indian tribes, or any interpretation of law relevant to Congress’ delegation of regulatory authority to eligible tribes for purposes of carrying out CWA water quality programs. Hicks addressed an issue of tribal inherent jurisdiction , which is distinct from authority delegated to eligible tribes by Congress. By virtue of EPA’s revised interpretation of CWA section 518, tribal inherent authority is no longer relevant to tribal TAS applications to administer regulatory programs under the statute.12 of 28

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0079 Author Name: Robert T. Anderson, Professor of Law; Director, Native American Law Center Organization: University of Washington School of Law
Supports the proposed reinterpretation. Asserts that the interpretive rule mechanism is consistent with applicable administrati ve law rules

. Provides a copy of a 2015 law review article , which analyzes the issue of whether the statu t e should be construed as a delegation of federal authority and provides support for EPA’s proposal.
Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule. With regard to the use of the interpretive rule mechanism, see section V.B of the rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0080 Author Name: Gary Besaw, Chairman Organization: Menominee Indian T ribe of Wisconsin
Supports the proposal, citing elimination of the need for a tribe to demonstrate inherent authority. The Tribe intends to submit an application for TAS, and urges EPA to publish the final rule in mid

- 2016.
Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0081 Author Name: J.D. Strong, Executive Director and Scott Thompson, Executive Director Organization: Oklahoma Water Resources Board and Okl ahoma Department of Environmental Quality
Expresses appreciation for EPA’s recognition of the unique requirement under SAFETEA applicable to tribes in Oklahoma seeking TAS for regulatory programs. Requests additional clarification of the process that will be used to ensure the SAFETEA provision is satisfied.
Response: EPA appreciates the commenters’ interest in the special circumstance in Oklahoma involving requirements of SAFETEA addressing tribal TAS for regulatory programs. EPA provides its response to the comments in section V.C.4 of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0082 Author Na me: M. E. Buck Organization: Unknown
Supports enactment of the reinterpretation in the hope of gaining better environmental health of tribal water resources , and as an imperative first step to create a workable agreement between the tribes and13 of 28

EPA. Provide s a research paper supporting these views and asserting that revising the current application requirement , allowing congressional authority, will allow for better overall human and environmental health and a better tribal

- EPA relationship.
Response: EPA a ppreciates the comments supporting the proposal . See section IV.A of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0083 Author Name: John Linc Stine, Commissioner Organization: Minnesota Pollution Control Agency
Explains that the Minnesota Pollution Control Agency has supported tribes in Minnesota that have applied for TAS, and that where there have been disagreements over jurisdiction the agency has worked with tribes and EPA to find a cooperative resolution. Enc ourages EPA to continue to provide ample opportunity for states to weigh in on any tribal boundary questions as it moves forward with the proposed reinterpretation.
Response: EPA appreciates the comment er’ s support for TAS . See section IV.A of the final i nterpretive rule. With regard to EPA's intent to continue to provide opportunities for states to comment on reservation boundaries in the context of TAS applications for CWA regulatory programs, see sections V.C.1 and V.C.6 of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0084 Author Name: Reginia Gasco Bentley, Chairperson Organization: Little Traverse Bay Band of Odawa Indians
Strongly supports EPA’s proposed reinterpretation as consistent with the express language in the CWA and an appropriate recognition of tribal sovereignty. Asserts that EPA’s reinterpretation would significantly reduce the Band’s administrative burden in pu rsuing a TAS application. Agrees with EPA’s rationale for the reinterpretation.
Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0085 Author Name: Thomas P. O'Rourke, Sr., Tribal Chairman Organization: Yurok Tribe
Encourages EPA to finalize the proposal, and consider providing additional funding for regulatory program implementation.14 of 28

Response: EPA appreciates the comments supporting the proposal . Se e section IV.A of the final interpretive rule. Concerning funding, 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 develo p or implement a CWA regulatory program. See section VIII.E of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0086 Author Name: Barry Burnell, Water Quality Division Administrator Organization: State of Idaho Department of Environmental Quali ty (IDEQ)
Disagrees that EPA’s analysis in the proposed interpretive rule is sufficient to justify the change in interpretation. Asserts that EPA is relying on dicta and that no court has definitively ruled on the question of whether section 518 delegates authority to Indian tribes. R equests clarification regarding lands subject to the revised interpretation

. In particular, i f there is a formally recognized reservation, are trust lands outside the borders of such a reservation included within the definition of Indian reservation under section 518(e)? A lso requests clarification about whether , under the revised interpretation, s tates will be preempted from applying state water quality law to non

- tribal members on non

- tribal land within the borders of a reservation and if there is a preemption, whether the state is preempted prior to EPA approval of TAS status. N otes that where t here are significant issues regarding the borders of a reservation, the revised interpretation will not reduce the burden or time involved in determining TAS status for a tribe

. Response: EPA appreciates IDEQ’s comments . However, the Agency disagrees that the legal citations and analysis in the interpretive rule are insufficient to support the revised interpretation of CWA section 518. EPA provides a detailed response to comments regarding EPA’s legal analysis in section IV.A of the final interpretive rule. With regard to the geographic scope of TAS under the CWA and, in particular, tribal trust lands outside the borders of a formal Indian reservation, EPA provides a response to IDEQ’s comment and request for clarification in section V.C.2 of the final inter pretive rule. As explained in that section, EPA’s longstanding approach, consistent with relevant judicial precedent, is that such tribal trust lands are informal reservations and thus have the same status as formal reservations for purposes of the Agency’ s CWA programs. This approach is outside the scope of, and is unaltered by , the final interpretive rule.
With regard to IDEQ’s request for additional clarification relating to potential effects of the revised interpretation of section 518 on state water qu ality programs and authorities, EPA has provided additional information and explanation in section V.C.8 of the final interpretive rule. Finally, EPA agrees with IDEQ’s observation that geographic reservation boundaries will continue to be a relevant consi deration for TAS under the CWA and that any significant issues regarding the borders of a reservation that are raised by a tribe’s TAS application will need to be addressed as part of EPA’s decision making . The need to address reservation boundar y issues r aised in a TAS application existed under EPA’s prior interpretation of section 518 and is unaltered by the final interpretive rule. EPA15 of 28

provides additional explanation regarding this issue in sections V.C.1 and V.C.6 of the final interpretive rule. Among o ther things, those sections describe the current (and continuing) need for applicant tribes to identify the boundaries of the reservation area over which they seek TAS eligibility and the opportunity for appropriate governmental entities and others to comm ent and provide relevant information on the issue to EPA.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0087 Author Name: Steven M. Pirner, Secretary Organization: South Dakota Department of Environment and Natural Resources (“South Dakota DENR”)

Notes EPA’s references in the proposed interpretive rule to TAS requirements under the Clean Air Act and a sserts that a irsheds are different from watersheds , which have defined beds and banks that cross lands of tribal members, non

- members, and non

- Indians

. Notes that s tates wit h EPA

- approved environmental program s are required to provide an Attorney General s tatement documenting the state ’s authority to carry out the program, and asserts that t ribes should be held to the same standard and that it is reasonable for EPA to require and review information about a tribe’s legal authority to ensure requirements established by U.S. Supreme Court decisions addressing tribal jurisdiction over

non
- members and non

- Indians are met . Does not support EPA eliminating the opportunity to comment on factual findings justifying inherent tribal authority for TAS. Asserts that the proposal will impact South Dakota and anticipates that the South Dakota Attorney General will work with other state Attorneys G eneral on a response if the reinterpretation i s finalized.
Response: EPA appreciates South Dakota DENR’s comments. EPA, h owever, disagrees with the statements opposing the relevance of Clean Air Act precedent and asserting that tribes would be held to a lesser standard than states under the revised interpretation of CWA section 518. EPA continues to believe that the Agency’s experience implementing the Clean Air Act tribal provision provides relevant precedent to guide EPA’s interpretation of the similar congressional approach to tribal regulation under the CWA and that air and water quality regulation are substantially analogous for purposes of analyzing Congres s’ intent. EPA responded to this comment in section IV.A of the final interpretive rule. EPA also notes that the revised approach to tribal authority under the CWA would not hold tribes to a lesser standard than states. Where TAS

- eligible tribes submit reg ulatory programs for EPA review under the CWA, such programs must meet all applicable requirements in the same manner as states (apart from certain requirements relating to the exercise of criminal enforcement authority , which are addressed under existing EPA regulations ). For instance, in certain cases , EPA’s regulations require states seeking approval of a CWA regulatory program to provide a stateme n t from the Attorney General that the state’s laws provide adequate authority to carry out the program. That requirement would similarly apply to a TAS

- eligible tribe submitting a program for EPA’s review. The final interpretive rule relates solely to the manner in which tribes demonstrate underlying authority to regulate as a matter of establishing their eligib ility for TAS. This is a process and requirement that has no direct analog in the context of states. In that sense, the need for tribes to establish TAS eligibility imposes additional requirements that are not applicable to states. EPA also believes that t he final interpretive rule creates16 of 28

no tension with established U.S. Supreme Court precedent regarding tribal jurisdiction. EPA addressed this comment in section IV.A of the final interpretive rule. Among other things, EPA notes that congressional delegatio n of regulatory authority to Indian tribes is well

- established in federal law, including in decisions of the U.S. Supreme Court. With regard to the prior process pursuant to which EPA had solicited comments on proposed findings of fact relating to tribal a ssertions of inherent regulatory authority over nonmember activities, see section VI of the final interpretive rule. As explained there, this process – which originated in EPA guidance

– related solely to tribal assertions of inherent regulatory authority and served no other purpose. Because, under the revised interpretation of CWA section 518, tribes will no longer be required to demonstrate inherent authority to regulate, that particular process is no longer needed or relevant.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0088 Author Name: Thomas Siyuja, Sr., Director, Havasupai Environmental Programs Department Organization: Havasupai Tribal Council
Supports the interpretive rule and looks forward to working with EPA Region 9 to implement the approach confirmed by th e rule.
Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0089 Author Name: Clement J. Frost, Chairman Organization: Southern Ute Indian Tribal Council
Strongly s upports EPA’s proposed revised interpretation, which will reduce effort s for EPA and tribes, and benefit tribes, states, and regulated parties. Notes that t he Tribe has applied for TAS for WQS, and requests that the proposal not delay the review or approva l of the T ribe's pending application. P oints to provisions concerning the Tribe’s reservation in P.L. 98

- 290 and asserts that the reinterpretation should prevent some potential conflicts concerning the lawful assertion of Tribal authority.
Response: EPA ap preciates the comments supporting the proposal . See section IV.A of the final interpretive rule. With regard to any sp ecial circumstances relating to P.L. 98

- 280 , see sections V.C.4 and V.C.8 of the rule. As EPA has explained, any special circumstances that are specific to a particular state or tribe and that may be relevant to effectuation of section 518’s congressional delegation of authority would be addressed solely in the context of EPA’s final decision on a particular tribe’s TAS application and up on a full record of information addressing the issue , and any judicial review of that decision would occur in that context

. The substance of these specific situations is thus outside the scope of

– and is not affected by

– the final interpretive rule, and EPA takes no position in the interpretive rule regarding whether any particular tribe or Indian reservation is subject to any potential impediment relating to effectuation of17 of 28

the congressional delegation of regulatory authority or how the CWA can be interp reted vis

- à

- vis the alleged source of any such impediment. With regard to the Southern Ute Tribe, any final decision regarding P.L. 98

- 290 would thus need to occur in the context of an EPA decision on a TAS application by th e Tribe. EPA notes that the Agen cy is familiar with P.L. 98

- 290 and has had occasion in the past to review certain aspects of that statute in the context of an application by the Southern Ute Tribe to administer a regulatory program under the federal Clean Air Act (a statute which, like the CWA, EPA interprets as including an express delegation of authority from Congress to eligible Indian tribes to regulate their entire reservations). In that instance and in light of P.L. 98

- 290, the Tribe and the State of Colorado entered into an agreem ent regarding administration of the subject air quality program that was affirmed in special legislation by Congress. Given those circumstances, any question regarding an effect of P

. L

. 98

- 290 on the Tribe’s ability to operate the program was not before EP A to address

.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0090 Author Name: Karen S. Gaylord, Jennings, Haug & Cunningham, Counsel for Salt River Project Organization: Salt River Project Agricultural Improvement and Power District
(Incomplete copy of comments. See C omment ID No. EPA

- HQ

- OW

- 2014

- 0461

- 0106 below for response to complete comments .)

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0091 Author Name: Jennifer Mock Schaeffer, Government Affairs Director Organization: Association of Fish & Wildlife Agencies
Expresses respect for tribal sovereignty and shares tribal interest in protecting clean water. Requests

e xtension of 45 days to allow the Association and its members time to review and respond. Asserts that the proposal could impact the Association’s members ’ ability to mee t requirements to manage fish and wildlife

. Response: EPA appreciates the commenter’s respect for tribal interests in clean water and environmental quality. EPA notes that the final interpretive rule relates solely to the manner in which Indian tribes demo nstrate regulatory authority for the purpose of obtaining TAS eligibility under the CWA. It does not impose any substantive water quality requirements on any water or affect fish and wildlife management requirements . Such requirements, if administered by I ndian tribes, would only arise by virtue of separate CWA submissions ( e.g. , submissions of water quality standards that the tr i be proposed, made subject to public comment, and held a public hearing on ) that would address the identical areas that are

curren tly subject to tribal TAS under the CWA ( i.e. , Indian reservations)

. EPA did not extend the deadline for submitting comments on its proposed reinterpretation of the CWA tribal provision.18 of 28

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0092 Author Name: On letterhead of Mark N. Fox, Office of the Chairman Organization: Mandan, Hidatsa & Arikara Nation, Three Affiliated Tribes, Fort Berthold Indian Reservation Tribal Business Council
Strongly support s the proposal, and asserts that EPA should never have r equired tribes to demonstrate specific authority as part of the TAS application process. Provides an analysis of statutory and judicial history to support the reinterpretation consistent with EPA’s proposal.
Response: EPA appreciates the comments supporti ng the proposal . See section IV.A of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0093 Author Name: Ann C. Becker, Vice President, Environmental and Chief Sustainability Officer Organization: Arizona Public Service Company (APS)
Expresses a n understanding of the importance of sovereignty to Indian tribes. Describes role as operating agent for the Four Corners Power Plant (FCPP), which is located on a right

- of

- way within the Navajo Nation. Describes l ease agreements reflect ing the Navajo Nati on's waiver of regulatory authority over FCPP and the Secretary of the Interior's agreement to enforce this waiver. Supports comments submitted by Salt River Project, which is similarly situated. Asserts that the proposed reinterpretation is unnecessary an d unreasonable. Requests , a t a minimum that EPA acknowledge that the revised interpretation does not apply to the Navajo Nation's CWA authority over FCPP , which constitutes a special circumstance.
Response: EPA appreciates APS’ recognition of the importance of sovereignty to Indian tribal governments. With regard to EPA’s justification for the revised interpretation of CWA section 518 and to review EPA’s detailed responses to comments raised on the issue, see section IV.A of the final interpretive rule.
EPA also appreciates APS’ comments providing information regarding the location of FCPP on the Navajo Nation and the lease agreements, rights

- of

- way, and other instruments granting APS authority to operate FCP P. These comments are instructive regarding a type of special circumstance that can exist with regard to a specific tribe and that may present unique jurisdictional arrangements that would need to be considered in assessing the applica bility of the CWA tribal provision. EPA has generally addressed such special circumstances in sections V.C.4 and V.C.8 of the final interpretive rule. As explained there, the precise outcome of any such circumstance could only be determined in the context of a p articular tribe’s (in this case the Navajo Nation) TAS application and upon consideration of the full record of information addressing the issue. The substance of these specific situations is thus outside the scope of

– and is not affected by

– the final i nterpretive rule , and EPA takes no position in th e 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

- à

- vis the alleged source of any such impediment. To the extent EPA is ever called upon to19 of 28

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.

EPA notes that the Agency is familiar with the lease agreements and rights

- of

- way pursuant to which APS operates FCPP on the Navajo Nation. EPA has previously approved the Navajo Nation to administer several regulatory programs under the CWA and Safe Drinking Water Act. In each case, the Agency has received information regarding FCPP’s circumstances and has reserved taking final action on the Tribe’s eligibility to operate t he environmental program over this facility. In one case, EPA has delegated to the Navajo Nation the administr ation , pursuant to EPA’s authority, of a federal operating permit program under the Clean Air Ac t , including over FCPP. Even i n that case, the Tri be and APS entered into an agreement addressing the special jurisdictional circumstance originating in the lease agreements and rights

- of

- way. In those circumstances, there was no need for EPA to address the effect of the lease agreements and rights

- of

- way

.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0094 Author Name: Ron Winterton, Chairman, Board of County Commissioners , Duchesne County; Michael J. McKee, Chair, Board of County Commissioners, Uintah County; and Michael K. Davis, Manager, Wasatch County Organization: Duchesne County, Utah; Uintah County, Utah; and Wasatch County, Utah
Requests clarification of what constitutes fee land within Indian reservations , that portions of the rule that reject the Montana test be stricken, and that the new process not facilitat e assertions of tribal CWA jurisdiction over lands within the exterior or former boundaries of a reservation that are outside of federal supervision

. Expresses c oncern with application of the rule to surplus lands that lie within former/historic boundaries of reservations. Provides background information regarding the Counties and the Uintah Valley and Uncompahgre Reservations. Asserts that CWA s ection 518 does not apply to land that has lost its reservation status even if it is encompassed by reservation l ands. Asserts that c ase law does not support the reinterpretation and that EPA should ensure local governments can comment

on the TAS process and that the TAS process does not interfere with ongoing litigation regarding reservation boundaries or tribal jur isdiction.
Response: EPA appreciates the Counties ’ comments. With regard to EPA’s justification for the revised interpretation of CWA section 518 and to review EPA’s detailed responses to comments raised on the issue, see section IV.A of the final interpre tive rule. With regard to the Counties’ concerns about lands that have been diminished from Indian reservations, see section V.C.1 of the final interpretive rule. As noted there, EPA agrees with the Counties that each surplus lands act must be considered i ndividually and addressed on a reservation

- specific basis and that any lands that have lost their reservation status would be outside the scope of TAS for purposes of a CWA regulatory program. With regard to the TAS process for soliciting comment on an app licant tribe’s assertion of authority, see section V.C.6 of the final interpretive rule. As explained there, EPA has proposed no change to the notice

- and

- comment20 of 28

process as established in existing EPA CWA regulations. The issue is thus beyond the scope of

– and is not affected by

– the final interpretive rule. EPA notes that the existing procedures have proven effective in providing broad notice of tribal assertions of authority and ensuring that EPA’s decision making is well

- informed.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0095 Author Name: Doug Goehring, Commissioner Organization: North Dakota Department of Agriculture
Expresses recognition of, and respect for, tribes as sovereign entities, but asserts that authorizing another sovereign to administer and enforce CWA provisions is unnecessary as the State already regulates private land within its jurisdiction. Seeks to avoid overlapping or uncertain authority over private landowners in agriculture production on tribal lands. Requests extension of 56 days t o provide comment on the proposal.
Response: EPA appreciates the commenter’s expression of respect for tribes as sovereign entities. With regard to the concerns about potential overlapping CWA authorities on privately owned land on Indian reservations, see section V.C.8 of the final interpretive rule , which addresses the status of state CWA programs in Indian country. As explained there, states are generally not approved by EPA to administer CWA programs in Indian country

– including Indian reservation land s owned in fee by non

- members of a tribe

– in the absence of an express grant of authority from Congress and express approval by EPA. EPA did not extend the deadline for submitting comments on its proposed reinterpretation of the CWA tribal provision.

Co mment ID EPA

- HQ

- OW

- 2014

- 0461

- 0096 Author Name: Silas C. Whitman, Chairman Organization: Nez Perce Tribe
Strongly supports the proposal, and agrees that the reinterpretation is supported by the plain language of the CWA and case law. Resubmits pre

- proposal comments already in the docket for this rulemaking (EPA

- HQ

- OW

- 2014

- 0461

- 0044).
Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule.21 of 28

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0097 Author Name: Lorraine Loomis, Chairperson Organization: Northwest Indian Fisheries Commission
Supports the proposal because it facilitates the TAS application process and re duces administrative and financial burdens associated with pursuing CWA authorization

. The current interpretation has been burdensome to tribes seeking to administer CWA programs, resulting in waste of limited resources

. EPA should consider other factors t hat slow tribal adoption of CWA programs. EPA could improve the WQS approval process by more expeditious evaluation and clear expectations ( e.g. , set timeline) for when EPA will respond to tribal proposals.
Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule. EPA also appreciates the suggestions for improving the process for approving new and revised WQS

. T hese activities are beyond the scope of

– and are not affected by

– this interpretive rule. However, EPA will continue to look for ways to improve its procedures in the appropriate context.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0098 Author Name: Philip R. Mahowald, General Counsel Organization: Prairie Island Indian Community
Fully supports EPA conclus ion that section 518 includes an express congressional delegation of authority to eligible tribes. Notes that t he Tribe has been concerned about potential water quality impacts from a neighboring nuclear plant, and has been monitoring both ground and surfa ce waters since the 1990s, with the goal of establishing WQS, but the existing TAS process deterred them. Asserts that h aving to demonstrate inherent authority over its own waters and lands seemed like asking it to demonstrate its sovereignty, which states are not required to do. Asserts that t he proposal should not be a concern to states, and should be finalized.
Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0099 Author Name: Chaitna Sinha, Attorney, Office of the Reservation Attorney Organization: Confederated Tribes of the Colville Reservation
Supports the proposal. Asserts that t he proposal would help tribes protect their natural resources and provide regulatory consistency ( i.e. , CWA v. CAA); and potentially increase tribal participation in CWA programs. Notes that t he Tribes submitted their 433

- page TAS application in December 2013, which is still awaiting approval. Also notes that t he Tribes provide a review of jurisdiction cases under the CAA and CWA to show that the proposal is legally sound.22 of 28

Response: EPA appreciates the comments supporting the proposal. See section IV.A of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0100 Author Name: RoJean Rowley, Mayor, City of Duchesne; Vaun D. Ryan, Mayor, City of Roosevel t ; and Kathleen Cooper, Mayor, City of Myton Organization: Cities of Duchesne, Myton, and Roosevelt, Utah
Requests clarification of what constitutes fee land within Indian r eservations a nd that the new process not facilitate assertions of tribal CWA jurisdiction over lands within the exterior boundaries of a reservation that are not subject to federal jurisdiction. Expresses c oncern with application of the rule to lands allot ted to non

- members of a tribe pursuant to surplus lands acts

. Provides background information regarding the Cities and the Uintah Valley Reservation. Asserts that CWA s ection 518 does not apply to land that has lost its reservation status. Asserts that EPA should continue to require tribes to demonstrate inherent authority over surplus lands. States that EPA’s r eliance on Brendale is misplaced. Asserts that case law does not support the reinterpretation and that EPA should ensure that local governments can comment on the TAS process and that the TAS process does not interfere with ongoing litigation regarding reservation boundaries or tribal jurisdiction.
Response: EPA appreciates the C itie s’ comments. With regard to EPA’s justification for the revised interpretation of CWA section 518 and to review EPA’s detailed responses to comments raised on the issue, see section IV.A of the final interpretive rule. With regard to the C itie s’ concerns about lands that have been diminished from India n reservations, see section V.C.1 of the final interpretive rule. As noted there, EPA agrees with the C itie s that each surplus lands act must be considered individually and addressed on a reservation

- specific basis and that any lands that have lost their r eservation status would be outside the scope of TAS for purposes of a CWA regulatory program. With regard to the TAS process for soliciting comment on an applicant tribe’s assertion of authority, see section V.C.6 of the final interpretive rule. As explain ed there, EPA has proposed no change to the notice

- and

- comment process as established in existing EPA CWA regulations. The issue is thus beyond the scope of

– and is not affected by

– the final interpretive rule. EPA notes that the existing procedures hav e proven effective in providing broad notice of tribal assertions of authority and ensuring that EPA’s decision making is well

- informed.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0101 Author Name: Kathleen Clarke, Director, Office of the Governor, Public Lands Poli cy Coordinating Office Organization: State of Utah

C ontends that no court has decided the issue of how to interpret CWA section 518, and Congress has not acted to amend or expound upon the meaning of that section. The State asserts that the case law cited in the proposal does not support the reinterpretation and that the cited judicial statements are dicta. A sserts that the reinterpretation is contrary to U.S. Supreme Court decisions limiting tribal23 of 28

inherent authority over non

- tribal members and that tribes should be held to the same standard as states, which are required to demonstrate adequate legal authority to carry out environmental program activities. I llustrates its concern regarding tribal jurisdiction over state and private lands wit h a description and map of the Uncompahgre reservation in eastern Utah.
Response: EPA appreciates Utah’s comments

. EPA, however, disagrees that the rationale and supporting citations in the interpretive rule are insufficient to justify the revised interpre tation of CWA section 518. See section IV.A of the final interpretive rule for a detailed discussion of EPA’s rationale and response to comments on the issue. EPA also believes that the final interpretive rule creates no tension with established U.S. Supre me Court precedent regarding tribal jurisdiction. EPA addressed this comment in section IV.A of the final interpretive rule. Among other things, EPA notes that congressional delegation of regulatory authority to Indian tribes is well

- established in federal law, including in decisions of the U.S. Supreme Court.
EPA also notes that the revised approach to tribal authority under the CWA would not hold tribes to a lesser standard than states. Where TAS

- eligible tribes submit programs for EPA review under the CW A, such programs must meet all applicable requirements in the same manner as states (apart from certain requirements relating to the exercise of criminal enforcement authority, which are addressed under existing EPA regulations). For instance, in certain c ases , EPA’s regulations require states seeking approval of a CWA regulatory program to provide a statement from the Attorney General that the state’s laws provide adequate authority to carry out the program. That requirement would similarly apply to a TAS

- eligible tribe submitting a program for EPA’s review. The final interpretive rule relates solely to the manner in which tribes demonstrate underlying authority to regulate under the CWA as a matter of establishing their eligibility for TAS. This is a proce ss and requirement that has no direct analog in the context of states. In that sense, the need for tribes to establish TAS eligibility imposes additional requirements that are not applicable to states.
EPA appreciates the State’s provision of information relating to the Uncompahgre Reservation and notes that any issues relating to a specific assertion by the Ute Indian Tribe of CWA regulatory authority over that Reservation are outside the scope of the interpretive rule and would only be addressed in the

c ontext of a final EPA decision on a TAS application by the Tribe. The State of Utah would, in that context, have an opportunity to comment to EPA and provide any relevant information relating to the Tribe’s assertion of authority.

Comment ID EPA

- HQ

- OW

- 201 4

- 0461

- 0102 Author Name: Frances G. Charles, Cha i rwoman Organization: Lower Elwha Klallam Tribe, Port Angeles, Washington
Supports the proposal. Notes that t he Tribe is currently preparing a TAS application for WQS, and is confident it could demonstrate it s inherent authority, but views the proposal as the correct interpretation of s ection 518. P rovides background on the Tribe's water and fish resources, and efforts24 of 28

to restore the Elwha River , and asserts that it needs TAS status and a robust water quality standards program to ensure that their water resources remain healthy.
Response: EPA appreciates the comments supporting the proposal. See section IV.A of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0103 Author Name: Bill Schuette, Attorney General; and Dan Wyant, Director, Michigan Department of Environmental Quality (MDEQ) Organization: State of Michigan

Asserts that EPA has no legal basis for finding c ongressional delegation of authority to tribes in s ection 518(e)

. Cites l ack of c ongressional action to clarify that section 518 is a delegation of authority, notwithstanding many other amendments to the CWA and one revision of section 518

. Asserts that c ase law does not support reinterpretation and that judicial state ments relied upon by EPA are dicta

. Asserts that the Clean Air Act tribal provision is distinguishable. Expresses c oncern with the rule’s impact on disputed reservation lands and lands owned by nonmembers within reservations; with possible displacement of state programs ; and with possible resulting approvals of tribal CWA programs without proper findings that tribes have authority to enforce the programs. Suggests that recognizing state authority in these areas will lead to more effective decisions for wate r resources and will avoid conflicts. Asserts that there will be n o significant benefits from reinterpretation and that any added efficiencies do not speak to congressional intent

. Expresses concern that applicants will need to obtain permits from both the state and a tribe or EPA.
Response: EPA appreciates the comments from the Michigan Attorney General and MDEQ . EPA, however, disagrees that the rationale and supporting citations in the interpretive rule are insufficient to justify the revised interpretati on of CWA section 518. See section IV.A of the final interpretive rule for a detailed discussion of EPA’s rationale and response to comments on the issue.
With regard to disputed reservation lands, EPA notes

– as explained in sections V.C. 1 and V.C.6 of t he final interpretive rule

– that under existing CWA requirements , TAS for CWA regulatory programs is limited to lands that qualify as reservation land, and existing TAS regulations provide for applicant tribes to demonstrate the boundaries of the reservation area over which they seek to administer a CWA regulatory program. Under those regulations , states and other entities will have an opportunity to comment and raise any concerns to EPA regarding the reservation status of land that is included in a TAS application , and EPA would only approve a tribe’s TAS status with respect to land that is determined to be reservation land. Further, with regard to any potential displacement of state programs, see section V.C.8 of the final interpretive rule. As ex plained there, state CWA programs are generally not approved by EPA in Indian country in the absence of an express congressional authorization of state jurisdiction and express approval by EPA. Such state programs would thus not be subject to displacement by tribal25 of 28

regulation in that they would generally not apply on reservations in the first instance. There should thus be no issue with potential requirements for dual CWA permitting by approved states and tribes.
Michigan also expresses concern that the re vised interpretation may result in approvals of tribal programs without an adequate demonstration of tribal authority and that questions regarding the sufficiency of tribal authority could wind up being raised later, e.g. , during implementation and enforce ment of an approved program. EPA disagrees that regulated entities would be able to challenge a tribe’s EPA

- approved CWA regulatory program by disputing the tribe’s underlying authority to implement or enforce the program. Consistent with the final interpr etive rule, Congress, in section 518, has delegated its authority to eligible tribes to implement and enforce CWA regulatory programs on their reservations. The same congressional delegation of civil authority that supports a tribe’s eligibility for TAS wo uld also support its implementation and enforcement of the approved program. The same approach is already in place under the Clean Air Act (CAA), which EPA has long interpreted as including a delegation from Congress to eligible Indian tribes to administer regulatory programs under that statute over their entire reservations. Tribes implementing such CAA programs are not subject to challenge based on an alleged absence of inherent authority to implement or enforce an EPA

- approved program.
Michigan also ass erts that recognizing state authority over disputed reservations and non

- member reservation lands would lead to more effective CWA decisions. EPA disagrees. Like eligible tribes, states must have authority to implement and enforce CWA programs to receive a pproval from EPA. The Agency cannot recognize state authority

– or approve a state regulatory program

– where such jurisdiction does not exist or has not been demonstrated. Any such approval of a state program in the absence of a demonstration of authority and an express approval by EPA would create the very problem Michigan is concerned about

– i.e. , approval of a CWA regulatory program in the potential absence of underlying jurisdiction to implement and enforce.
Michigan also questions the benefits that m ay be achieved by the revised interpret ation and asserts that simplifying the TAS process i s not relevant to Congress’ intent. As explained in detail in sections IV.A and IV.B of the final interpretive rule, EPA’s re vised interpretation of section 518 is b ased on the plain language of the statute itself as properly informed by consideration of relevant judicial and congressional guidance. The fact that the revised interpretation results in lifting unintended administrative burdens and that EPA describes suc h streamlining effects in the interpretive rule does not diminish the Agency’s legal justification. Such benefits are appropriately described as providing a policy basis for EPA to take a careful look at section 518 and issue a revised interpretation that some commenters have stated is long overdue.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0104 Author Name: Harold Bennett, Tribal Cha i rman Organization: Quartz Valley Indian Reservation
Strongly supports the proposal. Notes that the Tribes of the Klamath Basin have been working to restore fisheries and water quality within the Klamath River and its tributaries. A ssert s that l egally enforceable26 of 28

WQS would greatly support these efforts, but the TAS approval is currently so difficult that only o ne of the T ribes has achieved it.
Response: EPA appreciates the comments supporting the proposal. See section IV.A of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0105 Author Name: William (Billy) J. Maines, Co

- chair Organization: Tribal Caucus of EPA Region 10 Regional Tribal Operations Committee (RTOC)

Notes that t he Tribal Caucus consists solely of the tribal government representatives of the RTOC. Supports moving forward in the reinterpretation process, asserting that the reint erpretation is well grounded in the law and is a wise step in advancing goals of the CWA as well as EPA’s trust responsibility to assist in the protection of tribal health and the environment.
Response: EPA appreciates the comments supporting the proposal . See section IV.A of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0106 Author Name: Karen S. Gaylord, Jennings, Haug & Cunningham, Counsel for Salt River Project Organization: Salt River Project Agricultural Improvement and Power District (SRP)

Submits c omments on behalf of SRP, the operating agent for the Navajo Generating Station (NGS), which is located on a right

- of

- way within the exterior boundaries of the Navajo Nation reservation. E xpresses respect for the sovereignty of the Navajo Nation and describes agreements reflecting the Navajo Nation's waiver of regulatory authority over NGS and the Secretary of the Interior's agreement to enforce this waiver. A sserts that the reinterpretatio n is unnecessary and unreasonable and is not supported by the legal authorities cited in the proposal, which are dicta

. S tates that EPA also failed to address the limitations on tribal criminal authority over non

- members

. Asserts that t he fact that Congres s did not include provisions relating to tribal criminal authority indicates an absence of intent to expand tribal jurisdiction over non

- members. Requests at a minimum that EPA acknowledge that the revised interpretation does not apply to the Navajo Nation 's CWA authority over NGS , which constitutes a special circumstance. Asserts that section 518 cannot retroactively overcome the Tribe’s waiver of regulatory authority over NGS and that even in the absence of the waiver, the Navajo Nation would lack inheren t authority to regulate NGS under principles relating to tribal authority over non

- tribal members. Asserts that the interpretive rule will eliminate opportunity for meaningful comment on TAS applications. Notes that under the prior approach, there were inc entives for tribes and states (with assistance from EPA) to work together to resolve jurisdictional disputes before a TAS application is submitted, but that under the revised interpretation, such disputes will simply be pushed to later adversarial proceedi ngs resulting in less cooperation. Cites a Voluntary Compliance Agreement regarding Clean Air Act regulation of NGS as a novel solution to a complex jurisdictional issue.27 of 28

Response: EPA appreciates SRP ’ s expression of respect for the sovereignty of the Nav ajo Nation . With regard to EPA’s justification for the revised interpretation of CWA section 518 and to review EPA’s detailed responses to comments raised on the issue, see section IV.A of the final interpretive rule. With regard to limitations on tribal c riminal enforcement authority and to review EPA’s detailed responses to comments on the issue , see section V.C.3 of the final interpretive rule.
EPA also appreciates S RP ’ s comments providing information regarding the location of NGS on the Navajo Nation an d the lease agreements, rights

- of

- way, and other instruments granting SRP authority to operate NGS . These comments are instructive regarding a type of special circumstance that can exist with regard to a specific tribe and that may present unique jurisdict ional arrangements that would need to be considered in assessing application of the CWA tribal provision. EPA has generally addressed such special circumstances in sections V.C.4 and V.C.8 of the final interpretive rule. As explained there, the precise out come of any such circumstance could only be determined in the context of a particular tribe’s (in this case the Navajo Nation) TAS application and upon consideration of the full record of information addressing the issue. The substance of these specific si tuations is thus outside the scope of

– and is not affected by

– the final interpretive rule , and EPA takes no position in th e 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

- à

- vis the alleged source of any such impediment. 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 deci sion would occur in that context.
EPA notes that the Agency is familiar with the lease agreements and rights

- of

- way pursuant to which SRP operates NGS on the Navajo Nation. EPA has previously approved the Navajo Nation to administer several regulatory prog rams under the CWA and Safe Drinking Water Act. In each case, the Agency has received information regarding NGS ’ circumstances and has reserved taking final action on the Tribe’s eligibility to operate the environmental program over this facility. In one c ase, EPA has delegated to the Navajo Nation the administration, pursuant to EPA’s authority, of a federal operating permit program under the Clean Air Act, including over NGS

. Even i n that case, the Tribe and SRP entered into an agreement addressing the sp ecial jurisdictional circumstance originating in the lease agreements and rights

- of

- way. In those circumstances, there was no need for EPA to address the effect of the lease agreements and rights

- of

- way. SRP cites this “Voluntary Compliance Agreement” in i ts comments as an example of a novel solution to a jurisdictional issue . EPA agrees and continues to support efforts by tribes, states, and industry to develop cooperative approaches, consistent with EPA’s programmatic requirements, to address environmenta l regulation in a manner that avoids dispute or litigation . EPA does not agree, however, that the revised interpretation of CWA section 518 will serve as a disincentive to such efforts. The Voluntary Compliance Agreement cited by SRP is, in fact, a useful example of a cooperative approach that was developed in the context of regulation under the Clean Air Act (as well as a program that continued to be operated under federal authority) , which is a statute that EPA has long interpreted as including a congress ional delegation of regulatory authority to eligible Indian tribes.28 of 28

EPA also disagrees that the revised approach to CWA section 518 will eliminate meaningful opportunities for comment on tribal assertions of authority in TAS applications. As explained in s ection V.C.6 of the final interpretive rule, EPA’s existing TAS regulations continue to provide for applicant tribes to demonstrate the geographic boundaries of the reservation area over which they are seeking TAS. This important issue remains subject to c omment from states and other interested entities under existing regulatory procedures and EPA policy . Further, as described in section V.C.4 of the final interpretive rule, EPA recognizes that special circumstances may exist that could affect an applicant tribe’s ability to effectuate the congressional delegation of authority. Such circumstances

– which may include the precise issue SRP raises relating to its lease agreements and rights

- of

- way – would also be subject to existing comment protocols. In all re levant respects, t his is the same opportunity that interested entities have to comment on TAS applications under the Clean Air Act, and these procedures have proven both meaningful and helpful to ensure that EPA’s decision making is well

- informed.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0107 Author Name: Leonard Forsman, Chairman Organization: The Suquamish Tribe
Supports the proposal because it facilit at es the TAS application process and reduces administrative and financial burden associated with pursuing CWA delegation. Asks EPA to consider the financial and resource requirements necessary for tribes to successfully implement these programs.
Response: EPA appreciates the comments supporting the proposal. See section IV.A of the final interpretive rule. Concern ing funding, EPA will continue to consider tribal resource issues in its budgeting and planning process. However, EPA cannot assure tribes that a dditional funding will be available for a tribe to develop or implement a CWA regulatory program. See section V III.E of the final interpretive rule.

Comment ID EPA

- HQ

- OW

- 2014

- 0461

- 0108 Author Name: Brian Patterson, President; and Kitcki A. Carroll, Executive Director Organization: United South and Eastern Tribes, Inc.
Strongly supports the proposal. Asserts that the revised interpretation will streamline the TAS application process , could significantly reduce time and effort for tribes to develop applications, and could encourage more tribes to apply for TAS for CWA programs.
Response: EPA appreciates the comments supporting the proposal. See section IV.A of the final interpretive rule.