From: Curt.Fransen@deq.idaho.gov <Curt.Fransen@deq.idaho.gov>

Sent: Monday, August 11, 2014 2:57 PM

To: TASreinterpretation

Subject: CWA TAS 

Fred,

I appreciate the discussion this morning with the WSWC. I have some concerns or requests that I would 

appreciate some feedback from EPA’s perspective. I realize these are legal questions at some point and 

I can ask for analyses from our AG office, but I would appreciate your input. Please forgive the 

informality of these comments/questions; they are off the top of my head and not carefully formulated 

or articulated.

1. My general understanding of Indian jurisdiction is consistent with comments this morning on 

the phone to the effect that Congress can delegate authority to tribes (and, if so, the Montana 

test is not germane). EPA is revisiting whether or not Congress expressly delegated in the CWA 

and EPA appears like change its interpretation from “no” to “yes”. Here is my concern: where 

Congress has expressly delegated authority to tribes, it is my understanding that states are 

essentially preempted from asserting/exercising that same or similar authority. At least that is 

my understanding of how we approach, for example, air issues as a result of the CAA delegation 

to tribes (and default EPA to the extent the tribes don’t have TAS). So, for example if, if there is 

a complaint about open burning within a reservation in Idaho, we (Idaho DEQ) do not respond 

even where the activity is by a non-member on fee land. As a result, in many instance, no one 

responds—at least not in any timely manner. Turning to WQ issues, if there indeed was an 

express delegation under the CWA, in the instance where a Tribe does not have TAS (no WQS, 

no NPDES, no ground water programs and not even any general requirements regarding water 

quality), I am concerned that my agency will be preempted from taking any action or otherwise 

responding to WQ issues. We currently do apply state requirements to non-members activity 

on fee lands. If there is an express delegation, we may no longer be able to do so. In instances 

where the Tribe and EPA have no capacity or ability to respond or take action, there will 

essentially be no action taken. So my question is whether it is EPA’s understanding that an 

express delegation would effectively preempt states from asserting jurisdiction over nonmember activities to protect surface or ground water on fee lands within a 

reservation. Similarly, would city/county jurisdiction regarding matters related to WQ (such as 

local ordinances based on police power where the local authority is not preempted by some 

state program—in other words where there is no express or “field” preemption). We have 

entire municipalities within reservations in Idaho (on fee lands). If a non-member dumps raw 

sewage on private fee land within a reservation, will the state or local government continue to 

have authority to enforce requirements prohibiting such activity?

2. Is it EPA’s position that its reinterpretation of congressional intent in Section 518 of the CWA is 

entitled to Chevron deference?

3. Is EPA considering changing it interpretation regarding TAS requirements in other federal 

environmental statutes such as the SDWA? The issue I raised above regarding preemption 

would be of particular concern regarding drinking water issues. Idaho currently exercises 

authority (under state law—not through federal authorization) over dozens of non-member 

drinking water systems within reservations in Idaho that are located on fee lands. If the state 

was preempted, these systems would essentially be unregulated unless the Tribes or EPA 

could/would step into the breach.
Thanks for considering my concerns. I appreciate EPA’s interest in trying to clarify and simplify the 

current jurisdictional ambiguities regarding environmental statues it is charged with overseeing, but I 

am also very concerned that there might be unintended consequences on the ground if states and local 

governments were to be preempted from applying their own requirements as to non-member activities 

on fee lands within reservations. 

Curt Fransen 

 

 

Curt Fransen, Director

Idaho Department of Environmental Quality

1410 North Hilton

Boise, ID 83706

208-373-0240 (Tel)

208-373-0417 (Fax)

curt.fransen@deq.idaho.gov