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EPA’s Potential Reinterpretation of the Clean Water Act Provision Regarding Tribal

Authority

– Meeting with WI, MI, MN Representatives

Thursday

, September 4, 2014

11:30 AM

– 1:0 0 PM EDT Meeting Summary

P a rticipants: See list on page 3.

The meeting began with introductions and opening remarks by T i nka Hyde

. Fred Leutner delivered a detailed presentation based on a b riefing for Region 5 states dated 8

- 13

- 2014, and a descriptive document dated 6

- 18

- 2014

, both available in t he docket for this rulemaking.

The meeting continued with an opportunity for questions and comments from participants. The following is a list of questions and comments received from participants during the mee ting

. For each of the questions, the EPA presenters provided responses that were consistent with the presentation materials

and other information available at http://wa ter.epa.gov/scitech/swguidance/standards/wqslibrary/tribal.cfm

. V iews and comments were acknowledged, and will be considered by EPA in developing the proposed rule.

 You mentioned that certain judicial cases since 1991 set the precedent for this interpretive rule. Can you provide more explanation on these experiences? For example, has any application been denied for failure to prove inherent regulatory authority when there was a real attempt by the tribe to demonstrate inherent regulatory authority?

 Have you denied any applications based on issues concerning the boundary of an Indian

reservation?

 Why is EPA planning to move beyond the published generalized f indings of 1991 if EPA

believes that those findings make the case for TAS? W hy move to a position that is opposed to what was stated as legislative intent in the 1991 Federal Register language?

 Do states have to collate local government comments and responses and submit them, as they relate to TAS authority?

 What is the specific evidence of Congressional Intent that you believe provides EPA t he authority to reverse i ts longstanding interpretation?

 Wasn’t there a Clean Air Act case in Michigan that was dis missed due to lack of standing?

 I read the historical FR information on CWA and CAA rulemakings. What has changed since 1998 in EPA’s view of legisla tive hi story and Congressional Intent?

 Does the CWA languag e talk about reservation lands?2 of 3

 What if a tribe does not h ave authority over specific waters within a reservation? For example, in Wisconsin, tribes were established after lake ownership was determined, and

the lakes remain state

- owned.

 Why has EPA’s position changed fr om its pos ition in the Montana case?

 How will existing TAS applications be affe cted by this interpretive rule?

 With this potential action , will tribes be given TAS for Li sting s and TMDLs

automatic ally?

 You said you were in consulta tion with tribes on the section 303(d) TAS rule

. When do

states get to see that process?

 What criteria would be applied for TAS coverage of waterbodies adjacent to trust lands and future fee

- to

- trust lands after a tribe is granted TAS for another area of the state?

 What is the timeline for the reinterpretation? By what EPA mec hanism will it be accomplished? Is EPA going ahe ad with this interpretive rule?

 If and when EPA decides to publish this interpretive rule, will the records and communication with the tribes be available for review?

 Is there some underlying law to say that this is necessary? Why add additional regulations?

 Isn’t it a goal of the CWA to avoid unnecessary duplication? EPA has authority over Indian country. Should this be a component of this d iscussion?

 Is EPA citing that it’s clear unambiguous language in the CWA Section 518 to take this

action? Not a question of ambiguity, correct?

 State representatives would like to meet with EPA if the interpretive rule is pub lished. Would that be possible?3 of 3 Meeting Participants

EPA Headquarters

Fred Leutner

, Office of Science and Technology Corey Buffo

, Chief, Regional, State, and Tribal Standards Support Bra nch

, Office of Science and Technology

Beth LeaMond

, Office of Science and Technology

Gretchen Giannelli

, Office of Science and Technolog y Tod Siegal

, Office of General Counsel

Pete Ford

, Office of General Counsel

Andrew Hanson

, Office of Congressional and Intergovernmental Relations

EPA Region 5 Tinka Hyde , Director, Water Division Director

Linda Holst , Water Division

Daniel Cozza , Water Division

David Horak , Water Division Kathleen Mayo , Water Division

Daniel Samardzich

, Water Division

Barbara Wester , Office of Regional Counsel

State of Minnesota Staff

Rebecca Flood, Assistant Commissioner

Be verly Conerton, Staff Attorney Jean Coleman, Attorney

Shannon Lot thammer, EAO Division Director

Katrin a Kessler, EAO Section Manager Mark Tomasek, Pollutio n Control Specialist Principal

State of Wisconsin Staff Michele (Shelly) Allness, WDNR Tribal Liaison and Land Division Policy Advisor Quinn Williams, Natural Resources Section Chief, Bureau of Legal Service Diane Milligan Thomas Dosch, Attorney, WDNR

State of Michigan Staff Kim Fish, Assistant Chief

, Michigan Depa rtment of Environmental Qu ality, Water Resources

Division Phil Argiroff, Chief, Permits Section

D ina Klemans, Chief, Surface Water Assessment Section

Lou Rei nwasser, Attorney from the Michigan Department of Attorney General