Page 1

EPA

Tribes Only Session: Water Quality Standards Regulatory Changes

Moderator: Evelyn Washington

August 19, 2010

4:00 p.m. EDT

 

Operator: Good afternoon. My name is Patrick and I will be your conference operator 

today.

At this time – or as a reminder, today's call is being recorded and today's 

briefing is available on your EPA Web site, and a link is included in your 

outreach materials. 

At this time, I would like to welcome everyone to the tribes-only session, 

water quality standards regulatory changes conference call. All lines have 

been placed mute to prevent any background noise. After the speakers' 

remarks, there'll be a question-and-answer session. If you'd like to ask a 

question during this time, simply press star, then the number one on your 

telephone keypad. If you would like to withdraw your question, press the 

pound key.

Thank you. Ms. Washington, you may begin your conference.

Evelyn Washington: OK.

Hello. My name is Evelyn Washington and I serve as the Director of the 

Standards and Health Protection Division here in EPA, the Environmental 

Protection Agency, and we're the group that's working on these revisions to 

the water quality standard regulations. So I want to welcome to you this first 

of our listening sessions for the standards regulations, and this session is for 

tribal governments to hear your views on what we're thinking about in 

revising these regulations.

Let me start out by saying that we're at the early stage in this rulemaking

process. We're at the very beginning of formulating what we're going to have 

in the proposal, and we're holding these informal opportunities to gather ideas 
Page 2

and to hear from you and others to help shape what we're going to put in the 

proposal. And this session today is the first step in consulting with tribes on 

this rulemaking. We recognize the importance of water quality standard to 

tribes and are prepared to work with you as we develop this proposal further.

So I also want to note that this is one of several opportunities to provide input 

over the course of developing these regulations. Over the next year there'll be 

an opportunity for more formal comments after we actually publish the details 

of our proposal in the Federal Register, and during the comment period, we 

also expect to hold additional consultation sessions with tribes.

As you will learn in a few minutes, we'll be taking a close look EPA 

regulations which govern the water quality standards' process, and we're doing 

that to improve the effectiveness in helping restore and maintain the integrity 

of the nation's waters. And all of us who work towards improving water 

quality have seen on a day-to-day basis how important standards are at driving 

water quality improvements and also how controversial they can be 

sometimes.

And we also see how issues that get in the way of us implementing standards 

seem to keep reoccurring from time to time over time the same issues. So the 

goal of this rulemaking is to address some of those reoccurring issues. That 

way, I think this rulemaking is an important goal for us, is one that we hope 

will make a difference in moving more effectively towards achieving the 

Clean Water Act goals.

And with that in mind, we've come up with a targeted set of changes to the 

regulations and we've outlined what some of those changes are in the material 

that we sent out to you that invited you to this listening session, and we're 

going to go into more detail over the course of next few minutes into each of 

those issues so that you can understand what we're thinking about and then 

give us specific feedback on those issues. 

We think this rulemaking may be of most interest to those tribes that already

have EPA-approved water quality standards or developing them, but it's also 

probably of interest to tribes who have encountered issues relating to 
Page 3

standards – related to standards in other jurisdictions around them. So for the 

next 20 minutes, we'll be using the briefing documents that we posted on the 

Web site to describe our thinking. And this briefing was developed for the 

general public, but we will cover verbally some items that may be of 

importance specifically to tribes.

If you have the briefing in front of you, we'll lead you through it slide by 

slide. We're now on slide one. And if you don't have the briefing in front of 

you that's OK, too. We'll be covering each of these points verbally, and the 

slides will be on the Web site for future reference and you can download them 

later. 

So moving onto slide two to look at the purpose of today's listening session, 

again, as I said, we want to solicit your views on specific provisions that 

EPA's considering in its proposed rulemaking. We will begin providing a 

short a short overview of what's being considered for the proposal and why we 

think it might be helpful. We'll plan to keep our dialog about the issues short 

and concise so that most of the call can be devoted to questions and answers 

and hearing your views on the issues that we're thinking about.

So slide three shows our schedule. As you can see, and as I said before, we're 

at the very early stages of this rulemaking process. We've not made any final 

decisions yet on the content of the proposal and those decisions we'll be 

making after we talk to you as well as to state and to other stakeholders. 

Again, let me note that today's session is not the only time we'll be talking to 

you. For example, as I said, once we publish the proposed rule in the summer 

of next year there'll be an opportunity for formal public comments. And then 

at that time, we'll have additional opportunity to meet with tribal governments 

to continue the consultation process. 

So turning to slide four, now we're launching into the actual meat of the 

presentation and the things that we're thinking about for the proposal. And at 

this point, I'd like to introduce Fred Leutner, who's a senior advisor in our 

National Water Quality Standards program here in headquarters. 

Fred Leutner: Thank you, Evelyn, and welcome to everybody on this call.
Page 4

I've been really looking forward to this. I've been working on tribal-specific 

issues now for a long time, and I do see a lot of familiar names on the list of 

people who have called in. So I'm looking forward to this, and especially 

hearing your views when we get to the feedback part of the call. 

We're going to start out by [running] through our briefing outline here on slide 

number four. We're going to begin with some background on what standards 

are and why we have come to this point of revising our regulation. Then I'm 

going to provide a lot of details about the specific issues that EPA's 

considering, and those are listed here on the slide and we'll be getting to those 

in just a few minutes.

On slides five, six and seven, we'd like to give you a little bit of a refresher on 

some of the basics of the water quality standards program and water quality 

standards. Slide five is a reminder of just what water quality standards are. 

They're provisions of state, tribal, or federal law that describe the desired 

condition of a waterbody or the level of protection. Standards not only set the 

goals for waterbodies, but they are the foundation of water-quality-based 

controls, such as enforceable NPDES permits, for example. Standards consist 

of designated uses, water quality criteria, and antidegradation policies, and 

they can include general policies such as variances and mixing zones. 

On slide six, we continue with our refresher here. Under the Clean Water Act, 

states and authorized tribes have the primary role in setting standards. The 

states and tribes must hold public hearings to review their standards every

three years and revise them if they're needed, and then EPA has to review and 

approve those standards and the revisions to standards in order for them to 

take effect under the Clean Water Act and be available for use in issuing 

permits or developing TMDLs. And finally, when deemed necessary, EPA 

can step in to impose federal standards in certain circumstances, and we'll be 

talking a little bit more about that under one of our issue areas.

Now on slide seven, I'm going to give you a brief rundown of what's in the 

current standards regulation since that's the main topic for today's call. In a 

nutshell, the regulation simply adds details to what the Clean Water Act itself 

says about things like designated uses, water quality criteria, and 
Page 5

antidegradation, and it also specifies how states and tribes need to engage the 

public in any revisions to water quality standards. The regulation also 

specifies the roles of states, tribes, and EPA as we administer the standards' 

program. 

Now before I leave this slide, I want to point out that for tribes the regulation 

includes one particular section, Section 131.8, which was added in 1991 to 

implement what Congress set up in the way of allowing EPA to treat tribes in 

a manner similar to a state for purposes of the Clean Water Act. Now in the 

future, I'm going to use the acronym TAS instead of that mouthful that I just 

said. I know that some people may have problems with the TAS acronym, but 

we really do mean and understand that that means treatment in a manner 

similar to a state for purposes of the Clean Water Act.

EPA is not proposing to change Section 131.8. We support tribes who want to 

apply for TAS and we plan to continue doing that. The work we have been 

doing in recent years to improve the TAS process has not actually involved 

any changes to that regulation, but just in procedures that EPA uses in 

working with tribes that are trying to get TAS. 

On slide number eight, there's a little insight into why we're considering 

revising the standards regulation. The main parts of the regulation have been 

in place since 1983. So one could think that it's getting a little old, but on the 

other hand, these provisions have provided a very strong, solid foundation for 

controlling water quality in the country. But there are practical reasons for 

initiating this rulemaking. 

As we have implemented the 1983 regulation, some important issues seem to 

keep coming up again and again, like Evelyn just mentioned, primarily with 

state standards. But occasionally with tribal standards as well, and that the 

regulation itself just doesn't address those issues, and that, in part, is why they

keep coming up. And when they keep coming up, that can waste a lot of time 

and resources on everybody's part, and we think that revising the regulation 

could help improve that situation. So that's our motivation. 
Page 6

On slide number nine we just wanted to give you a little bit of an idea of how 

we develop the areas of the reg that we are considering revising. We 

reviewed the recurring issues that I just mentioned, and the case law that has 

evolved. We have reviewed the 1998 advanced notice of proposed 

rulemaking that we put out, and we considered the comments that we got on 

it. We consulted with a number of state and EPA managers and experts to see 

their views, and finally, we just sort of narrowed the focus to where we 

thought regulation changes would seem the most appropriate.

Now those areas that we came up with are listed on slide number 10, and I'll 

go through each of them in the next few slides. So I won't read through them 

right here. I do want to point out that we will be asking for your views at the 

end of this discussion. So as we go along in the next few slides, you might 

want to make a note of any questions and comments that you have as we go 

along and save them for the Q&A session that's coming up. 

I guess we would really welcome ideas or views supporting our ideas, but we 

would also be very interested and probably get more benefits if you actually 

have views on things like any possible unintended consequences of what we're 

thinking about and any downsides to our proposals. We also welcome any 

specific suggestions for changes that you do or do not want to see in our 

proposal. 

So turning to the first issue, antidegradation – it's on slide number 11 – the 

current regulation specifies that states and tribes must adopt specific 

antidegradation policies and must identify implementation methods. As a 

refresher, the policy states that states and tribes need to protect existing uses 

and they need to prevent the lowering of high-water quality unless it's 

necessary – unless they find it necessary to accommodate important economic 

or social development. 

The regulation also specifies that states and authorized tribes must adopt 

specific antidegradation policies, and at this point, all states and TAS tribes 

have adopted policies in accordance with the regulation. And we really don't 

see any need to change that; however, we are concerned about implementation 

of antidegradation; implementation methods in particular. And although 
Page 7

many states have done a good job of implementation, some states have not 

even identified antidegradation implementation methods despite the 

requirement to do so. 

And for tribes, there's somewhat of a similar situation. Many tribes have done 

an excellent job and – but there are a few others that are only in the early 

stages of developing implementation methods. So at this point, EPA is 

considering modifying the regulation to specify that the antidegradation

implementation methods must meet specific minimum requirements. To do 

this, EPA's considering adding a paragraph that would specify minimum 

implementation elements to be included in state or tribal standards. A 

minimum element, for example, could be that we would require that a state or 

tribe have a process for identifying high-quality waters.

EPA is also considering requiring that anti-deg implementation methods must 

be adopted into state and tribal water quality standards rather than simply

being identified. The methods would thus be subject to EPA review and 

approval. Our current thinking is that these changes in the antidegradation

area would bring more consistent application, clarity, and transparency to the 

protection of high-quality waters. And further, EPA's oversight role would be 

more clearly defined.

That's the first issue, five to go. The second one on slide 12 has to do with 

something we call the [EPA] Administrator's determination, which is really 

the Administrator's ability to determine that new or revised water quality

standards are necessary to meet the requirements of the Clean Water Act. If 

the Administrator makes such a determination, it obliges EPA to promptly

propose federal standards and then finalize them within 90 days unless the 

state or tribe steps in and revises its standards before that time elapses.

Now over the years there have been some recurring instances of confusion or 

misunderstanding about what constitutes an Administrator's determination, 

and I'll point out that all of these instances that I'm aware of have involved 

states not tribes. For example, in some cases, EPA staff people have sent 

routine letters suggesting priorities for states to consider when they revise 

their standards, and some courts have construed these kinds of routine 
Page 8

communications to states as official EPA determinations under Section 

303(c)(4)(B) of the Clean Water Act that oblige EPA to promulgate water 

quality standards. 

So we're considering clarifying in the regulation that an administrator's 

determination must be actually signed by the [EPA] Administrator or by

someone he or she specifically authorizes, and that the determination must 

include a statement that it – that it in fact constitutes a determination under 

Section 303(c)(4)(B) of the Act. Our current thinking is that this type of 

change could assure that it is clear when EPA has or has not made one of 

these determinations, and this kind of change would also allow EPA to 

continue to provide routine written suggestions to states and tribes without 

triggering the need for immediate federal action. 

The next issue area has to do with designated uses. Our current regulation is 

based on Section 101(a)(2) of the Clean Water Act, which establishes the 

national goal for water quality: protection and propagation of fish, shellfish, 

and wildlife, and recreation in and on the water, wherever attainable. So if a 

state wants to remove one of these goal uses, our regulation requires it to 

demonstrate that attaining the designated use is not feasible for one of six 

specific factors, and they must also submit a use attainability analysis, which 

is a structured scientific assessment of factors affecting the attainment of 

designated uses. 

However, the regulation does not specify what you do if you – what uses, if 

any, must be adopted to replace the use that is being removed. And on 

another front, EPA's longstanding interpretation of the Act and regulation is 

that Section 101(a)(2) uses are attainable unless a state or tribe demonstrates 

otherwise. This interpretation is actually central to the standards program, but 

it is not articulated explicitly in the regulation. So, as a result, we are 

considering clarifying that designated uses reflecting the goals of the Clean 

Water Act are attainable unless otherwise demonstrated.

States and authorized tribes must designate such uses unless they have 

conducted a use attainability analysis to support a lesser designated use and 

EPA has approved that action. And then we're also considering clarifying that 
Page 9

the highest attainable uses closest to the 101(a)(2) goal of the Act must be 

adopted if such a goal itself is not attainable. That's what we're thinking of in 

the designated uses area.

On slide 14, we talk about variances, which are temporary changes to water 

quality standards, and these are things that states and tribes can do. They're 

not required to issue variances. Now the current regulation allows states and 

tribes to adopt variances as general policies for applying and implementing 

their water quality standards. We specify this in Section 131.13 of the 

regulation. We would retain a state's or tribe's discretion to do this. I'm not 

aware of any tribes actually having adopted a variance, so I'm not sure how 

much immediate effect this would have, but these changes would affect both 

states and tribes, of course.

The current regulation does not provide any specificity on how to use 

variances. So, as a result, there is some confusion about the proper use of 

variances. And furthermore, variances are sometimes repeatedly renewed 

without achieving environmental improvements in a waterbody. So we're 

considering establishing some explicit provisions to guide the use of 

variances. For example, we're considering a provision that requires all 

variances to have an expiration date. This kind of change could provide some 

regulatory clarity we think on what is acceptable for variances and what is not.

On slide 15, we're going to talk about triennial reviews. These are the reviews 

that are required every three years by the Clean Water Act. The current 

regulation does not call for involving the public when states and tribes 

determine what they will focus on in their reviews. If a state or tribe chooses 

to focus just on some parts of their provisions rather than the entire set of – the 

entirety of their water quality standards, this can have the effect of narrowing 

public input to those portions of standards that the state or tribe choose to 

review and really doesn't allow the public to comment on the entirety or some 

other aspects of standards that they might be interested in.

Another concern is that despite the availability of new scientific information 

from time to time, some states or tribes may not be considering that kind of 
Page 10

information in a timely fashion, and thus may not always evaluate whether 

their current criteria continue to support their designated uses. 

So we're considering revising the requirements of the regulation to specify

that states and authorized tribes must solicit and consider public comments in 

determining the scope of each triennial review. 

We're also considering establishing a new triennial review requirement that 

states and authorized tribes must evaluate whether their current water quality 

criteria continue to be protective of designated uses taking into consideration 

any new information that has become available since the state or tribal criteria 

were adopted or last revised. So this would clarify that states and tribes would 

need to consider EPA's most recent national recommended water quality

criteria, for instance, that we publish under Section 304(a).

Our current thinking is that these changes could increase transparency by 

ensuring that stakeholders have an input on the scope of triennial reviews, and 

we think they could also strengthen oversight of whether state and tribal water 

quality criteria are being kept up to date and whether they continue to protect 

designated uses. 

Finally, on slide 16, we get to some specific court cases that have come up 

since we last revised the regulation. We're considering codifying into the 

regulation some of the results of those court decisions. The first two cases 

have generally not involved issues with tribal standards that we are aware of, 

but the third one, when I get to it here, would affect the administrative 

procedures of tribes that have TAS. 

So first, EPA's considering revising the definition of water quality standards 

that appears in the regulation to reflect the results of a 2004 court case 

concerning Florida's impaired waters rule. In this case, some binding 

provisions of state law had the affect of changing standards but without EPA 

review and approval. So the court decision and EPA's response to it actually

resulted in some definitional clarity on what kinds of provisions actually 

constitute water quality standards, and thus would be subject to EPA's review. 
Page 11

So we thought we would try to codify what those distinctions are in our 

regulation.

A second case involved compliance schedule, and specifically provisions in 

standards that authorize compliance schedules. We're considering specifying 

that those kinds of provisions that authorize compliance schedules are in fact 

considered water quality standards, just to make that clear, and therefore, that 

they must be submitted to EPA for review and approval. As you may know, 

compliance schedules govern the timing of water-quality-based effluent limits 

in NPDES permits. 

This change would codify the results of our 1990 environmental appeals board 

decision involving the StarKist Company. I just wanted to point out, however, 

that while authorizing provisions would be considered water quality standards, 

compliance schedules themselves – the actual change in dates for permits to 

be complied with – are permitting provisions and not actually [water quality] 

standards. So it's authorizing provisions that we're most interested in here.

Now the one that could affect some tribes is the third one. Here we're 

considering clarifying that states and authorized tribes must submit to EPA the 

records that they have of public participation that has occurred in reviewing 

and adopting standards. These records would include public comments and

the states’ or tribes’ responses to the comments. 

Normally, states and tribes do keep such records. The thing here is that they

need to be submitted to EPA to comply with some of the points that were 

made in the 1996 decision concerning the city of Albuquerque so that EPA 

can have full consideration of those comments and the responses to them 

when we're doing our review. 

In general, we think that these three ideas we have for codifying these 

positions in regulation will really help eliminate some confusion and 

hopefully could minimize future litigation on these topics. 

With that, we've finished our presentation, and slide 17 gives you a little bit 

more information or places you can go to get more information about these –
Page 12

both about these listening sessions themselves and about water quality

standards in general. They also show where we will be posting the transcripts 

and recordings of these sessions and how you can provide your views in 

writing if you want to add to the views that you express here today. 

Please note again that these are just listening sessions at an early stage of the 

rulemaking process and there will be a formal 60-day public comment period 

coming up next summer when we actually, or after we actually publish the 

proposed rule. 

So thank you very much for your attention. I'm going to now back to Evelyn 

Washington for the Q&A session.

Evelyn Washington: Thanks, Fred.

Now is where we turn to getting input from folks on the call. And first, Fred 

and I will be happy to answer any clarifying questions that you have about 

what you've heard in the presentation so far. And here we've set aside 15 – 10 

to 15 minutes for these clarifying questions and would appreciate if you would 

keep the initial questions short and limit them to questions or clarification 

about what you've heard. And then after we're done with this phase, we'll go 

into getting more comments and views from you about what EPA's thinking 

about doing in this rulemaking. 

So, Operator, if we can now move onto the Q&A session for clarifying 

questions.

Operator: OK. Yes, ma'am.

And at this time, if you would like to ask a clarifying question, you may press 

star one on your telephone keypad. Again, that is star one to ask a clarifying 

question. And after opening your line, please give your tribe or affiliation. 

We'll pause for just a moment to compile the Q&A roster.

And your first question comes from the line of Eric Rich.

Eric Rich: Ready?
Page 13

Operator: Go ahead, Eric.

Eric Rich: OK.

Yes, hi. This is Eric Rich with the Navajo Nation Environment Protection 

Agency. I'm a senior hydrologist in Yuba City, Arizona, and I want to thank 

Evelyn Washington and Mr. Leutner for providing us the opportunity to 

comment on the Clean Water Act revisions and also other issues. 

And I know I brought this to Mr. Leutner's attention before, and I wanted to 

try to get an idea of how – you had mentioned states and tribes must consider 

most recent federal criteria – how the Clean Water Act, the changes to water 

quality standards exist within the context of the EPA strategic plan, 

specifically objective 2.2 protect water quality. Now this is EPA strategic 

plan I'm looking at for 2006 and 2011.

Under 2.2 Part one improve water quality on a watershed basis, it says states 

and tribes must – or – I'm sorry – that states and tribes – or – I'm sorry –

improve water quality in Indian country at not fewer then 10 percent of 

baseline monitoring stations. It has a specific goal of improving water quality, 

which is not necessarily consistent with 101(a) of the Clean Water Act and 

101(a)(2), which is to maintain the chemical, physical, and biological 

(integrity) of the nations waters.

And then from that there's been a whole document, which is the [section] 106 

grant guidance for tribes that was produced that relates to recommended core 

standards to which federal recommended criteria have not necessarily been 

applied. So I'm just trying to get a sense of – not working within just the 

vacuum of redoing the Clean Water Act or the water quality standards, but 

how, especially for tribes, it relates to these other issues, specifically the 101 

grant guidance for tribes. So if you could elaborate on that, I'd appreciate it. 

Thank you.

Fred Leutner: Sure. This is Fred Leutner. Thank you for your question, Eric.
Page 14

I guess a couple of thoughts come to mind. One is, I know that you and others 

have pointed out that – and this – by the way this is off the track of the 

standards...

Eric Rich: I understand.

Fred Leutner: I happen to know a little bit about this other thing that you just raised so I'll go 

ahead and answer it. You were concerned that some of our strategic plan 

measures focus on the restoration part of and – I'm sorry – on improving water 

quality but not on maintaining it. So for the next strategic plan we're going to 

change that and we're going to cover both maintenance and restoration.

But specifically, I guess I'm a little confused about the question. The 106 

guidance itself is very comprehensive, and it talks about not only those tribes 

that may want to get TAS so that they can adopt their own standards under the 

Clean Water Act, but it also recognizes that there are many tribes that want to 

just adopt standards under their own tribal law and forego the TAS process 

and enforce those standards under tribal law, or there may be situations where 

they don't even need water quality standards to address particular water 

quality issues such as nonpoint sources that they might have.

So it's a very broad guidance, and we understand that, and I think we've made 

provisions in that particular strategic plan measure that you talked about for 

accommodating tribes that have TAS and those that don't have TAS and how 

they report under that measure. I think that's getting into a little detail that 

goes beyond what we were here to talk about today. Eric, I'd be happy to talk 

to you off line more about if this doesn't answer your question here today.

Eric Rich: Thank you.

Operator: And again to ask a question, you may do so by pressing star one on your 

telephone keypad.

Fred Leutner: We can go ahead with the next question then, please, Patrick.

Operator: And our next question comes from Curtis Francisco.
Page 15

Curtis Francisco: Hello?

Fred Leutner: Yes?

Curtis Francisco: Yes, this is Curtis Francisco from the Pueblo Laguna. I have a couple of 

questions regarding specifically the point of race. 

I guess the first is antidegradation. I'm a little bit unclear about how these 

changes are going to be implemented across the board even that, though, the 

United States is a fairly large country and each tribe is in a different area and a 

different environment. And so I'm a little concerned or maybe confused about 

how headquarters is going to implement something that's going to be relevant 

to all tribes because a tribe in New England that has something, it's not going 

to be applicable or even applied to a tribe in New Mexico where I'm at. So I

have some concerns and questions about that, and I'm not sure that this policy

is going to address that. 

I have some questions also on the administrator's determination as to 

specifically – again, it refers to which tribes and where – it's going to need to 

be specific. And you've mentioned here that the things that you're getting or 

you're trying to get a clarity on and make things more specific it's going to be 

hard for tribes I think when it starts to get really specific because it's going to 

be dependent on location, name, what resources they have available, and how 

they use them, which leads into my third point on uses – the designated uses 

specifically – especially for tribes that are – I guess I would have to say more 

traditional – cling to their more traditional ways designated uses has been 

seen as a very basic tool for getting into a tribal site practices and uses of 

things that they don't share with the outside world and specifying a designated 

use of a waterbody, say, for traditional cultural purposes having to divulge 

some information when none is really wanted to be divulged without doing 

reparable damage to a tribe and maybe resources or artifacts that may be there 

because you're opening it up to thought hunters and people that don't need to 

be there. 

So I have very strong concerns about the designated use verbiage – usage 

portion of that. And then regarding variances, I have some questions and 
Page 16

concerns about variances and how they're going to be applicable. Again, it's 

going to be dependent upon the tribe's location and the specific variance that 

they're going to be going after, such as here in the Southwest with the Pueblo 

Laguna when we have heavy rainfall, we get torrential flooding. How would 

we address that – the water quality standards, and you have something in 

between there that's going to impact water all the way down the channel that 

there may not be water in before? So, again, it's going to be a very specific 

question. So that's what I'm concerned with at this point.

Fred Leutner: OK, thank you very much for that. I covered a lot of territory, and maybe 

we're sliding into – a little bit into your comments and views rather than just 

clarifying questions, but let me try to answer in general terms.

In several places, you made the point that water quality standards, whether 

they be the designated uses, or the antidegradations, or the administrator 

determination, that those are all going to be very tribal-specific or statespecific. They're going to be different in different parts of the country. The 

regulation was set up back in the very beginning to recognize that. That's in 

fact why we don't have EPA setting those standards. That's why we have the 

states and the tribes setting those standards. 

We know that they're going to be different. That's why we don't dictate 

exactly what number you should adopt for, you know, how many milligrams 

per liter the water should have of dissolved oxygen. That's going to vary from 

waterbody type to waterbody type. So I guess as a general answer to your 

question, we're not proposing to change any of that with any of the revisions 

that we're talking about here today. The regulation recognizes that variability

and we want to continue that. 

Now with regard to your concern about when you designate uses that you 

might not want to divulge exactly what the tribe is going to do with the water 

and exactly why it needs the water quality for that water body, those again are 

completely the way you describe your use. How you explain it to the public is 

totally and completely up to the tribe. 
Page 17

There are examples of how tribes have very effectively protected water 

quality for their particular ceremonial or cultural or traditional uses, and 

they've done that in a way that doesn't say exactly how that water's going to be 

used. It may require a certain level of purity, a certain absence of diseasecausing organisms, or certain contaminants being below a certain level, but it 

you don't have to specify exactly how you're – what that use is going to be for. 

I hope, Curtis, that that answers your – gives a very general answer to your 

question. If we need to get into specifics, I might ask you to hold your 

comments to the latter part of the call when – if you've got follow-on 

questions, we can come back to them.

Curtis Francisco: OK, thank you.

Fred Leutner: Thank you.

Evelyn Washington: Are there – are there any more clarifying questions? We are seeking 

questions from folks who have questions about what's been presented in the 

overview of the issues that we're presenting today, and then we'll move on to 

more of the sort of comments and views. But what I'm looking for is specific 

questions where people are confused about facts or information that was 

presented earlier.

Operator: And again, if you'd like to ask a clarifying question, please press star one. If 

you would like to withdraw your question, press the pound key now.

And we'll move on to our next clarifying question. Our next clarifying 

question comes from the line of Marshal Chung. 

Marshal, your line is open.

Marshal withdrew his question. Your next clarifying question comes the line 

of Ken Norton.

Ken Norton: Well, this is Ken Norton from the Hoopa Valley tribe.

This is in regards to the changes to the antidegradation policy and identifying 

high-quality waters. A clarification that we identified our water quality 
Page 18

standards based upon background levels that were established in 2002, and 

basically, our question is in establishing high-quality waters, we would have 

to have a database identifying quality waters. Is there going to be a criteria of 

having so many years of information that characterizes the water quality?

Fred Leutner: Hi, Ken. Thank you for your question.

I'm going to – I'm looking around the room at our – some of our experts here, 

but I – we have not proposed that level of detail. 

Ken Norton: OK.

Fred Leutner: See – what you see here below is that we would simply specify that we would 

like to see – well, let's take your example. One minimum element we might 

like to see in antidegradation implementation methods, the one minimum 

element might be for you to describe to us how you are going to identify your 

high-quality waters.

Ken Norton: OK.

Fred Leutner: If you've chosen to use background levels in 2002 as to help you decide that, 

that – all you'd have to do is tell us, yes, that's your method that you intend to 

use.

Ken Norton: OK, good.

Fred Leutner: So that's sort of the level of detail we were hoping to get into. Now when we 

actually get to the proposal, I guess, for the later part of this call, we would be 

very interested in knowing what kinds of minimum elements you would like 

to see.

Ken Norton: Sure.

Fred Leutner: So if – when we get there, please hold your ideas and be prepared to give us 

some ideas because we're looking for some. 
Page 19

Ken Norton: OK, so there wouldn't be a minimum of five years of collection of background 

levels after our water qualities have been established for different perimeters 

that define high-quality waters.

Fred Leutner: No, you'll see in our guidance to date that we've been very open in allowing 

different methods to be used to identify... 

Ken Norton: OK.

Fred Leutner: ...high-quality waters. That will continue to some extent, but we may be 

putting some boundaries on it. We may consider boundaries, and we'd be 

very interested in knowing if people out there have ideas for how we might 

want to make any limitations.

Ken Norton: Thank you, Fred.

Fred Leutner: Thank you, Ken.

Operator: And again, to ask a clarifying question, please press star one. If you would 

like to withdraw your question, you may press the pound key.

Your next question comes from the line of Alex Cabillo.

Alex Cabillo: Is my line open?

Evelyn Washington: Yes, Alex.

Alex Cabillo: Yes, the question is how is EPA looking at going to assist tribes and funding 

and be able to do these water quality standards' changes?

Fred Leutner: Well, thanks, Alex. Good to hear your voice again.

As you might guess, EPA is not saying – [in a policy rule] we don't really talk 

about how we're going to do funding. Well, let me try this again. This is a 

really good [question]. We think that the actual burden that would be placed 

on states or tribes by the kinds of changes we're talking about would not 

necessarily be a huge resource load. For instance, in the antidegradation one 

we just talked about, it would be just simply to tell us what you're – to specify
Page 20

the minimum elements in your anti-deg implementation method and it could 

well be that your tribe already has done that. So it may not be much more of a 

requirement. 

I guess we have to just recognize that as with any program to protect the 

environment under EPA there's always going to be resource limitations, and 

that we typically make allowances for that in many different ways, including 

maybe narrowing the scope of triennial reviews to those things that we – that 

can be done in a particular triennium period. But I guess I will make a note 

for the record that you're expressing concern about resources. And we 

certainly have heard that in other forums that tribes are concerned about their 

resources, and we'll take that into account as we proceed with anything we do 

under this rule.

Alex Cabillo: Thank you, Fred.

Evelyn Washington: OK, I think we have time for maybe one or two more specific clarifying 

questions and then we'll move on to open it up for the larger dialogue of views 

and comments.

Operator: OK, and we'll move onto our next question, which comes from the line of 

Gary Morashima.

Gary Morishima: Hello. My name is Gary Morishima from the Quinault Nation. I've got two 

clarifying questions for you.

The first is, is the place where I can find the proposed process that you intend 

to use for actual tribal consultation on these changes? Do you just intend to 

use conference calls like this, or you actually intend on undertaking a formal 

consultation process? 

The second question deals with your issue number six and in corporation of 

findings or requirements under court decisions. Specifically there was a case 

that just came out of the Ninth Circuit that ruled that logging roads were a 

point source for industrial pollution and required permitting by the EPA under 

the Clean Water Act. The question primarily relates to how you decide which 

court decisions are going to be incorporated within the new rules.
Page 21

Fred Leutner: OK, thank you, Gary. Those are two good questions.

First, the process for consultation, we – as you know, the consultation process 

within the agency is still in draft at this point. We have – the Office of 

International and Tribal Affairs is taking comments on the draft policy. 

Whatever comes out of that process, we will be – as any other rulemaking

project in the agency, we will be subject to the policy that emerges from that –

from that process. 

We know that there are lots of different ways to consult. We are open to ideas 

on how to do that. We will certainly continue to have call is like this. But if 

there are calls – if there are requests for other ways to consult, we will be open 

to those and be prepared to put those into our consultation plan.

We will be working with the Office of International and Tribal Affairs to sort 

of refine our consultation approach as we go along. At this point, the next 

major step will be our proposal in the summer of next year, and we will be 

working out our specific plans for how to consult – how to continue the 

consultation process as we get nearer to that time. 

With regard to how did we select the cases, the one you cited, if we were to –

just knowing a little bit about it – I just read about it probably just like you did 

in the last couple of days – it sounded to me like that's primarily something 

that has to do with our permitting program and what types of discharges are 

covered by permits. So – with not a whole lot of implications for water 

quality standards – we might not be looking at that one. 

The ones that we focused on and the three that we cited here are ones that 

have come up in implementing actual water quality standards' programs and 

the decisions that have come down have had direct ramifications for how we 

operate and make day-to-day decisions. So it's more the content of the case. 

Whether it has to do with water quality standards, whether it is something that 

we feel extends beyond the facts of that particular case and should be applied 

to other cases as well, a lot went into that and a lot of experience over the last 

couple of decades.
Page 22

Gary Morishima: Thank you for your clarification.

Evelyn Washington: OK, I think we have one – time for one more clarifying question.

Operator: OK, and our last clarifying question comes from the line of Marshal Chung as 

a follow-up.

Marshal Cheung: Marshal Cheung, environmental coordinator for the 29 Palms Band of 

Mission Indians. I just have a very quick question as – or actually

clarification as – what is the “public” in Indian country, or what do you 

consider to be “public”? Is that off and on the reservation, or is this on the 

reservation only?

Fred Leutner: Well, I guess the same kind of question would apply to states, what is the 

public with regard to a state when they're adopting their standards. We tend to 

leave that up to the state or the tribe. Certainly it would involve people that 

reside within the reservation or within the state. So we would think that 

would be a minimum, but the tribe may choose to extend beyond that. But I 

would say – this is off the top of my head – I would think we would as a 

minimum say that it would include people who reside within the jurisdiction 

of the entity.

Marshal Cheung: Thank you.

Evelyn Washington: Well, I think at this point, we should move on to take comments and views 

about the targeted regulatory revisions that we're looking at and have the 

Operator open it up for any comments, views, opinions about what we're 

talking about today and this proposal that we're looking at putting out next 

summer.

Operator: OK, and at this time, if you'd like to ask an audio question, you may do so by

pressing star one on your telephone keypad. Again, that is star one to ask a 

question. We'll pause for just a moment to compile the Q&A roster.

And our first question comes from the line of Eric Rich.
Page 23

Eric Rich: Yes, this Eric Rich again. I guess this is actually a specific clarifying 

question. 

As you may or not may know, we have primacy for the 401 water quality

certification process, which certifies that water quality standards will not be 

impacted by either of the two federal permitting processes, which are the 

Clean Water Act Section 402 and NPDES discharge permits and the Army 

Corps [Section] 404 [permits for] discharge of dredge material in the waters of 

the United States.

Under F, I see that there is not any discussion of the Raponos decision, and 

especially here in the Southwestern United States with ephemeral waters, we 

are getting quite a bit of, oh, from the regulated community trying to make 

sure that their you know waters are not navigable waters, and therefore not 

subject to our water quality standards' regulations. And that might be out of 

the scope of what you're trying to do. As you mentioned, it was – this is kind 

of a program implementation applicability, maybe not the Clean Water Act –

or water quality standards' applicability regulatory action that – so I was just 

wondering if there's any discussion of that. Thank you.

Fred Leutner: Thank you. The first thought that came to my mind is the Raponos nondecision, but that's OK. 

Eric Rich: Exactly, yes.

Fred Leutner: We – I think the way it affects standards is that as with any other program the 

reach of the Clean Water Act is determined by what is considered a water of 

the United States, and as you well know, that's in flux now as a result of that 

split decision – plurality decision of the Supreme Court. We – I think we just 

need to see how that sorts out. 

I don't think – you know our regulation, if you look at it carefully, doesn't 

really talk about which waters of the U.S. standards apply to. I think there's 

just a basic assumption that water quality standards should be adopted for all 

waters of the U.S., but we – just like any other program, we're not going to sit 

down for standards and identify which waters [are waters of the U.S.] We're 

going to rely on the evolving case law involving that definition to make that 
Page 24

decision. I'm not aware of any case right now or any situations. Maybe other 

people in my group can think about (inaudible) situations where...

Sherry Barish: Fred?

Fred Leutner: ...water quality standards come up. Is that Sherry?

Sherry Barish: Yes. So this is Sherry Barish. 

I'm also with the Water Quality Standards program, and I just wanted to add 

that I believe that the folks who run the 404 program, like the wetlands 

program at EPA, are looking into that and trying – you know trying to move 

forward to figure out how to address the waters of the U.S. issue. I don't 

know where they're going to end up you know, whether it's additional 

guidance or regulation or – you know we're not as close to that topic, but there 

is a group in EPA who is trying to move forward to figure out and sort that 

issue out.

Eric Rich: Yes, what's been happening, at least at the Navajo Nation, is that in certain 

cases, we have the regulated community making those determinations for 

themselves, basically saying, well, based on Raponos we don't feel that you 

know our activity in this waterbody falls within the scope of the Army Corps

of Engineers, therefore, we don't need any 401 certification. That's – several 

or you know a few incidences, but that's kind of what's been happening a bit.

Fred Leutner: OK, thank you.

Eric Rich: Thank you. 

Operator: And our next question comes from the line of Nancy Schuldt. 

Nancy Schuldt: Hello, Fred. I have a question or maybe an observation about the very first 

issue that you're looking at for review and revision, and that's the 

antidegradation demonstration. 

That was a subject that we tackled when we went through our first triennial 

review process here a couple of years back, and it was something that we felt 

we wanted to strengthen in our water quality standards. But as I looked at 
Page 25

other tribal and state water quality standards' documents, they're really all over 

the place, and I didn't find anything that I thought was doing a better job. And 

I wondered if you're at the point now at EPA to where you could recommend 

certain ordinances or a certain language that you have seen have held up well 

when implemented.

Fred Leutner: Nancy, that's a really good question and good observation. 

I think maybe there's a distinction here between what's the minimum that EPA 

can accept, what's the federal minimum requirement, and on the other hand, 

what kinds of things would we like to see, what kinds of things do we 

recommend. The regulation change that we're considering here would work 

on the first part of that problem, that is focusing on trying to bring everyone to 

an equitable level so that the minimum requirements that really stand out as 

the things needed to make antidegradation work would be specified in our 

regulation. 

Now I guess in other contexts, you can't legislate good behavior, and so 

following that kind of logic what we can do and have done and have been 

very happy to do is to provide examples through our regional offices of things 

that we have found useful. We also have on our Web site a clearing house of 

ideas on antidegradation. I don't have the URL for that, but we would be 

happy to send that to you off line if we have if we have – so we could let you 

know what we have been doing in that area. It's a good idea and that's why 

we set up that kind of a clearing house. 

So, in short, we would love for every state and every tribe to have the ideal 

antidegradation program, but some places – but the ideal is oftentimes in the 

eye of the beholder. And so the most we think we can do at the federal level 

is talk about what minimum elements would be required. And at this point, 

our regulation's silent on that. We've got lots of guidance but not a whole lot 

of specificity [on minimum requirements], and we think that's what's led to 

some of the confusion and lack of uniformity and consistency from state to 

state and from tribe to tribe.
Page 26

Nancy Schuldt: Well, thanks, Fred, and I would appreciate having a link to that clearing house 

information.

Fred Leutner: OK, thank you. We can do that.

Operator: And again, if you would like to ask a question, you may do so by pressing star 

one.

Your next question comes from the line of Eric Morris.

Eric, your line is open. Eric Morris, your line is open.

And we'll move on to our next question.

And at this time, we do have no questions in queue. If you would like to ask a 

question, you may press star one now. Your next question comes from the 

line of Curtis Francisco.

Curtis Francisco: Yes, this is Curtis Francisco from the Pueblo of Laguna again.

I have some questions I guess that are a little bit off topic of what you were 

talking about. And I guess the first one that I would – I would like to see built 

into this whole process is quality assurance project plans. I know that you 

guys require tribes to have quality assurance project plans before we submit 

data, and whether it's first hand, second hand or fifteenth hand, we still have to 

have a QAPP. I think that – and it's probably would pacify a lot of tribes it –

and it would also give them some I guess comfort if the EPA had to provide a 

QAPP for how they're using their data that's going to be put into the STORET 

WQX warehouse. 

We'd like to know how it's going to be used and what procedures you guys 

have in place for that. I know you've written that into the 106 guidance and 

you require it of tribes. But I think for the old adage, what's good for the 

goose is what's good for the gander, I think EPA needs to take a serious look 

at that in providing that information.

The other question sparks some interest on our part here as what you guys are 

defining as community and public review. I know that within the Pueblo of 
Page 27

Laguna when we have our meetings – we have them every week, they're 

called village meetings and that's how our council interacts with the people –

we don't record anything. There's no minutes taken. A lot of it is not done in 

English. It's done in our native language, which is not written.

Recording is not allowed so sharing that with you is going to be a problem 

especially when it comes to issues that you raised like with the decision with 

Albuquerque versus Browner and how specifically we get into that. Many 

tribes conduct those types of meetings in their own native language and unless 

it's written I don't know how that's going to be handled. So that sparks an 

interesting question. Then you said you leave it up to the tribes or states to 

determine that. We don't allow non-tribal members into our meeting. It 

doesn't pertain to them. 

If we get water quality standards, I guess we have to figure out some way to 

interact with the non-Indian community if our standards are going to impact 

them, but I think most of our standards are going to apply to water just within 

the reservation. We don't have a lot of this here. So those are kind of generic 

questions that I have in area.

And the other thing I just wanted to touch on again deals with the designated 

uses, a little bit more elaboration on our part here. I know for under region 

six, they like us to identify latitude and longitude on a map, and the answer 

that we've been given that we're not comfortable is, well, don't define it. 

If you define everything around it, you define it, and the fact that EPA says, 

well, that's not defining it. And if you define everything around it and you 

have a hole there, it doesn't take a rocket scientist to figure out that there's 

some maybe cultural, traditional use that goes on there and then we have 

problems keeping people out of those.

Whether your reservation is large or small, that's the proprietary information, 

and just because you want to – you want to know it doesn't mean that you 

actually have the clearance or the right to know it, and that goes back to 

having a top security clearance you might (inaudible). But unless you have a 

right to know or a need to know you're not going to be given that information. 
Page 28

So I think that same type of mentality that EPA sells to tribes they need to 

remember itself.

Fred Leutner: Hey, Curtis. Thank you. Those are pretty good questions.

I'm going to forward your [first] question on QAPPs – for the uninitiated, 

that's Quality Assurance Project Plan, QAPP – I'm going to refer – suggest 

that we refer that to our Office of Wetlands, Oceans, and Watersheds that 

oversees the water quality monitoring program. 

That whole requirement to have quality assurance project plans comes from a

– sort of derives from a requirement in the Clean Water Act [section] 

106(e)(1) that has to do with requiring certain features for water quality

monitoring programs, and those are all administered by that particular office. 

So, Curtis, with your permission I'm going to refer that question to them and 

give them your e-mail address so they can get back to you. Would that be 

OK? 

OK, secondly, on the public review, can I ask you – just to clarify my 

understanding, [that] your tribe has not yet received – been found eligible –

for TAS. Is that right? And...

Curtis Francisco: Yes.

Fred Leutner: ...I'm not sure that you've even applied for it at this point. Is that... 

Curtis Francisco: Well, we're in the process... 

Fred Leutner: OK.

Curtis Francisco: ...and the reason – one of the reasons I guess why we're more interested about 

it is because of the resumed interest in uranium mining here in the grants 

mineral belt. And just for your clarification, we're bound by two Pueblos that 

do have water quality standards, the Pueblo of Acoma and the Pueblo of 

(inaudible). And so Laguna has been wanting to get water quality standards in 

place for quite some time now and with the upcoming issue of resumed 

uranium – a potential uranium mining that does purely affect the water quality
Page 29

and quantities that we would receive. And so that's something that we're 

interested in here. But how these are all going to play out together are going 

to be – I guess that still needs to be figured out.

Fred Leutner: Right, right. Well, I think you made a good point yourself. You said that 

maybe this – the whole idea of what you define as your public and how you 

conduct the public hearing that's required by the Clean Water Act, you will 

need to, I suggest, work with the regional office in Dallas, [EPA] Region six, 

and their staff there to figure out a good way to address that. There is no 

requirement that all – that a state or tribal deliberative process be recorded in 

the public record. 

What we're talking here about is that there is a requirement under our 

regulation, and I think under the Clean Water Act, yes, to have a public 

hearing. You're going to have to figure out what your public is and you're 

going to have to figure out how you're going to conduct that. Public hearings 

are subject to another regulation of EPA. It's 40 CFR Part 25, I believe, and 

so you and your legal staffs will have to sort through exactly how you handle 

that.

And you might take some advice from other tribes on that. I'm sure that other 

tribes have encountered that situation, and I'm sure that folks like Diane Evans 

in the Region six regional office would be able to help you find examples of 

how other tribes have done it.

On the third question about designated uses, again, this is one where maybe 

the regional office can help you, and I think what you may want to look at is 

whether you really do even need to specify which waterbody has special 

protection. It depends on what kind of protection you need for that cultural 

and traditional use that you may have. And if it turns out it's the same as, let's 

say, some people doing some boating or fishing activities nearby that might 

need the same kind of protection as the cultural and traditional use might 

need, then you may not even need to specify a different use.

On the other hand, if you do have specific needs that apply to that stretch of 

the waterbody, it might mean that you need to have that same standard apply
Page 30

to a broader stretch. So there may be ways to, if you will, without disclosing 

the exact location where a ceremony might be taking place, still provide the 

protections that you need. So I would recommend that's the kind of thing that 

would be best discussed with your regional staff that we have available. 

Curtis Francisco: That's...

Fred Leutner: (Inaudible) 

Curtis Francisco: ... one of the problems we've been facing and that's why I brought up the point 

of them – region six’s decision or suggestion was define everything except the 

point where we're doing stuff, and our contention is, well, that still defines it.

Fred Leutner: Yes. 

Curtis Francisco: As for the use of – the highest use would be consumption, [and as for] boating 

or fishing, well that's not allowed here so the assumption is what we would be 

protecting.

Fred Leutner: OK, good. Curtis, I'm going to need to cut you off because I think we're 

running out of time. We only have about 10 minutes left and we've got 

several people in the queue. Would you mind if we went on to the next...

Curtis Francisco: No, that's fine.

Sherry Barris : And, Fred, this is Sherry. I wanted to give the Web site for the 

clearinghouse.

Fred Leutner: Sure.

Sherry Barris: OK, it's – our new Web site doesn't start with www anymore, so it's 

[http://water.epa.gov/scitech/swguidance/waterquality/standards/adeg], and 

that's the clearinghouse. You can also do a Google, EPA antidegradation

clearinghouse, which is how I found it. OK, that's all.

Fred Leutner: I see a trend here away from long URLs. 

Can we go to the next... 
Page 31

Operator: Yes, sir, we can. 

Your next question comes from the line of Todd Thorn.

Todd Thorn: Hi, this is Todd Thorn with the Colville Confederated Tribes. 

I had a question regarding the triennial reviews and getting back to the phrase 

that you used taking into consideration any new information that is EPA 

recommendations, and I'm just wondering if you could provide a little extra 

detail regarding that is the expectation you think for that we will need to 

respond to all new recommendations and either integrate those into our 

standards or somehow rebut the need for them.

Fred Leutner: Yes, thank you, Todd. 

The proposal that we're considering would simply – let me just turn to that 

page so I'd be sure to get that right – would simply require that states and 

tribes evaluate whether water quality criteria are still protective of the 

designated uses taking into consideration any new information. I think most 

states and tribes do that, but what we're concerned about are the situations 

where a state may have gone several triennial review cycles without having 

incorporated some of our updated numbers. So that's what that's aimed at. 

I think there's flexibility in how it's implemented, taking into – to take into 

consideration things like you know how important is that change to make and 

so on and whether it can wait till the next cycle. But anyway,this would give 

us a little bit more oversight over that aspect of state and tribal standards. 

Todd Thorn: OK, thanks.

Operator: And our next question comes from the line of Scott Bulgrin.

Scott Bulgrin: Yes, these changes you've got here on the water quality standards that are 

regulatory hope they'll improve the tribes' water quality standards and the 

states' water quality standards, which you probably will once you've finalized 

some of the – like the minimum requirements and all that you're trying to put 
Page 32

in there which will be put in I guess in the proposed rule so we'll be able to 

really look at the meat and potatoes of this. 

Fred Leutner: Yes, exactly. 

Scott Bulgrin: Yes, but my question is, there are over 560-something tribes that are 

recognized by the Department of Interior that have the potential to have – to 

protect their waters through water quality standards, and currently there are 

only 36 tribes with water quality standards in the nation. And my question is 

what are EPA's plans for trying to deal with these other tribes in protecting 

their waters, especially if they feel that approved water quality standards aren't 

the answer? And it seems to me that over the years that – what, it's been 1983

– that only 36 tribes have got the water quality standards that we (inaudible) 

look at other – you know some other methods.

Fred Leutner: Yes, that's a very good question and an observation that we get and we are 

concerned about it here as well. There are several answers to that.

First of all, the ability for tribes to get standards actually began in 1987 when 

Congress passed it. So just to correct the record a little bit there, we've been 

successful in approving 45 tribes to get TAS, and of those, 35 have adopted 

water quality standards to date, and we've also promulgated standards for the 

Colville reservation. So that makes the 36 that you're talking about.

So I think we all recognize that that falls far short of 562. These – the tribes 

that do have TAS are somewhere on the order of like 45 percent of all the 

tribal land area in the country. So I think we're picking up some of the larger 

tribes, but that sure leaves a lot of the smaller ones that don't have standards. 

This is an issue that we continue to explore. 

Most recently, the National Tribal Water Council has raised that to people 

here in the Office of Water to consider, and we continue to look at that. In the 

meantime, we are doing everything we can to make the TAS process as viable 

as possible. The tribes that I talked to say that they really like the idea of 

retaining their sovereignty and having it recognized through TAS because it 

allows them to use their inherent regulatory authority. And so we certainly

honor that and want to keep trying to find ways to make it work. 
Page 33

At the other end of the spectrum, there are some tribes, such as the Alaskan 

Native Villages, that actually by the evolution of federal law cannot – they

don't have reservations, and therefore we can't do much within the construct of 

Section 518 of the Clean Water Act to get them to have standards. So we're 

looking at creative ways, we're always looking for ideas. And if people have 

those ideas, we would be most delighted to hear how to go about meeting 

those needs and honoring the tribes that want to protect their water quality

through standards. 

Operator: So do we move on to our question?

Fred Leutner: OK.

Operator: Our next question is from the line of Eric Morris.

Eric Morris: Yes, hello. This is Eric Morris from the native village of White Mountain.

We are one those villages in Alaska. We rely on the state of Alaska, which is 

mostly fine, but we are interesting in the antidegradation policy because we do 

have high water quality. But, of course, the antidegradation policy allows this 

state to lower water quality for economic and social development if they find 

it necessary, which is also a good out for everyone concerned, but we do have 

two comments that we would like to put forward to perhaps strengthen 

antidegradation of our waters. 

And one is that any implementation methods have a requirement to identify 

and define baseline water quality conditions over a period of multiple years. 

And secondly, we would like to suggest that the term aquatic invertebrates is 

added to the propagation of fish, shellfish, and wildlife clause so that they are 

specifically included since they're such a good indicator of high water quality

and healthy water systems and waterbodies. So those are our comments.

Fred Leutner: Great, those are excellent comments, and I'm going to – we'll just add that to 

our list of things to consider as we help develop our proposal. Thank you for 

that. 
Page 34

Operator: And again, if you would like to ask a question or make a comment, you may 

do so by pressing star one now. Again, to ask a question or make a comment, 

you should press star one now.

And our next question comes from the line of Eric Rich.

Eric Rich: Yes, just quickly on the administrator's determination, a couple of things you 

were talking about, the ability for the U.S. EPA to basically set standards for 

tribes. As I understand it, the issues of core water quality standards for Indian 

country has kind of (disappear), but do these changes, or in Item B, does this –

is this the ability for U.S. EPA to do something similar to the core water 

quality standards where they felt the tribes' waters were not protected or they

needed protected – protection? Excuse me.

Fred Leutner: Yes, you're very perceptive. That Section 303(c)(4)(B) of the Clean Water 

Act was the authority that we used to develop that proposal. As people know, 

that proposal was developed and signed by outgoing Administrator Carol 

Browner, but was never published in the Federal Registry. It was pulled back 

by the next administration. And since then no action has been taken on it. 

But yes, that is the section that we're talking about.

If that – if our revision had gone into place, that is the particular kind of 

determination [we are discussing in this briefing. It was already being made 

by the Administrator and it did self-identify itself as a determination. So it 

would not have been affected by this regulation change. What we're trying to 

address is the confusion that arises sometimes when people look at a letter 

signed by someone in authority at EPA that says – that says something 

negative about a state's standards, and some court decides that that is in fact a 

determination. Even though those standards might be fully acceptable with 

the EPA, there just may not be as good as we wanted them to be.

So that's sort of a long answer to your question. But yes, it's the same 

provision, and if our revision had gone into place 15 years ago, it would not 

have had any – it would not have changed in any way what Carol Browner did 

when she signed that proposal.

Eric Rich: OK, thank you.
Page 35

Operator: And there are no further questions in queue at this time.

Evelyn Washington: OK, I guess we're ready to close out, and I want to thank everybody for 

participating with us on the call today, and we'll take back your questions and 

comments and additional information as we develop this rulemaking. The 

insights and the information that you've given us today has been valuable, so I

want to thank you for that.

In addition to the questions and views that you gave us already, if additional 

questions or comments or thoughts come to mind about this regulation that 

we're looking at, there are three ways that you can get those comments to us. 

And on slide 19 we've provided information about getting written comments 

to us.

The first is, in terms of participating on additional calls, we have two public 

listening sessions that are coming up next week. The first is Tuesday, August 

24th, and the second is Thursday, August 26, and the information about those 

calls is on the Web site so you can participate on those calls. The second is 

you can communicate with us by sending us e-mail and the information is 

shown on slide 19.

And if you don't have that – those slides in front of you, you can download 

them again from the Web site to get that information. But for those who don't 

have it right in front of them let me give you the e-mail address to send your 

written comments and that's [SHPDcomments@epa.gov]. And the third way, 

you can send us a letter to the address that's shown on slide 19. 

For any written comments that you want to send us, it would be helpful if we 

could get those within the next two weeks or by September 3rd. That way 

when we have our meetings with senior managers we can refer to issues that 

folks have raised to us in the listening sessions that we're having. 

So with that, I also want to refer people back to slide 17. It's a slide that we 

included in the package here where you can get additional information about 

the rulemaking, about the listening sessions, and about water quality standards 

in general. Since any comments that we're getting in these listening sessions 
Page 36

are part of our early process in developing rulemakings, we're not going to be 

responding in writing to views and information that we've heard, but we are 

documenting this input and it's going to be part of the public record in the 

proposal that we issue next summer. 

So, again, thank you for your participation and this concludes the call.

Operator: This does conclude today's conference call. You may now disconnect.

END