March 30 , 2015

Honorable Gina McCarthy

Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N

. W

. (1101A) Washington, D.C. 20460

Dear Administrator McCarthy,

The purpose of this letter is to request increased consultation with states by

the Environmental Protection Agency (EPA) during development of regulatory efforts regarding tribal authority under the Clean Water Act (CWA)

. Because states and the EPA work together as co

- regulators under
the CWA, we urge you to endow states with a n early and meaningful role

in the develop ment of regulation s that could have significant consequences for water quality management.

In particular, Western Governors urge greater state consultation by EPA in development of: (1) a n interpretive rule that will outline the process by

which tribes obtain “ Treatment in a Similar Manner as a State ” (TAS)

status

, and (2) a separate formal rule that will establish a program for tribal administration of Total Maximum Daily Load (TMDL) standards , pursuant

to S ection 303(d) of the CWA.

Western Governors recognize that S ection 518(e) of the CWA directs the

EPA to promulgate regulations on tribal TA S authority for CWA programs.

We request that the Agency engage in thorough consultation on these TAS proposals with the w estern states, which typically have a larger tribal

presence than other states and a greater likelihood of conflicting water

standards.

Many w estern states count a dozen or more Indian tribes within their

boundaries. Whe n EPA grants TAS authority to tribes, water bodies currently regulated by states may become subject to duplicat ive

— and potentially conflicting

— standards

. This creates a more complicated regulatory environment for water managers and users.

Congress clearly intended to avoid this outcome

. We commend to your

attention the followi ng portion of CWA Section 518(e ) :

The Administrator shall, in promulgating such regulations

, consult affected States sharing common water bodies andHonorable Gina McCarthy

March 30 , 2015 Page 2

provide a mechanism for the resolution of any unreasonable consequences that may arise as a result of differing wate r quality standards that may be set by

States and Indian tribes located on common bodies of water. Such mechanism shall provide for explicit consideration of relevant factors including, but not limited to, the effects of differing water quality permit req uirements on upstream and downstream dischargers , economic impacts, and present and historical uses and quality of the waters subject to such standards. Such mechanism should provide for the avoidance of such unreasonable consequences in a manner consiste nt with the objective of this Act (emphas es added)

.

Congress’ imperative to avoid potential conflicts can only be achieved if states have a substantive role in the development of the proposals for tribal TAS authority and in future

tribal action under the CWA

.

The Western Governors appreciate EPA ’s outreach to state associations regarding th ese rulemaking efforts in the fall of 2014. We now ask for EPA to directly consult with the states on the specific provisions of the proposals for tribal TAS auth ority before they are drafted and released to the public for comment

. It is through this type of collaboration that we will be able

to best protect the waters of the West.

Respectfully,

Brian Sandoval
Governor, State of Nevada
Chairman, Western Governors’ Association