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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 – 1:00 PM EDT

Meeting Summary

Participants: See list on page 3.

The meeting began with introductions and opening remarks by Tinka Hyde. Fred Leutner 

delivered a detailed presentation based on a briefing for Region 5 states dated 8-13-2014, and a 

descriptive document dated 6-18-2014, both available in the 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 meeting. For each of 

the questions, the EPA presenters provided responses that were consistent with the presentation materials 

and other information available at 

http://water.epa.gov/scitech/swguidance/standards/wqslibrary/tribal.cfm. Views 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 findings of 1991 if EPA 

believes that those findings make the case for TAS? Why 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 the 

authority to reverse its longstanding interpretation?

 Wasn’t there a Clean Air Act case in Michigan that was dismissed 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 legislative history and Congressional Intent?

 Does the CWA language talk about reservation lands?
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 What if a tribe does not have 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 from its position in the Montana case?

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

 With this potential action, will tribes be given TAS for Listings and TMDLs 

automatically?

 You said you were in consultation 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 mechanism will it be 

accomplished? Is EPA going ahead 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 discussion?

 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 published. 

Would that be possible?
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Meeting Participants

EPA Headquarters

Fred Leutner, Office of Science and Technology

Corey Buffo, Chief, Regional, State, and Tribal Standards Support Branch, Office of Science and 

Technology

Beth LeaMond, Office of Science and Technology

Gretchen Giannelli, Office of Science and Technology

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

Beverly Conerton, Staff Attorney

Jean Coleman, Attorney

Shannon Lotthammer, EAO Division Director

Katrina Kessler, EAO Section Manager

Mark Tomasek, Pollution 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 Department of Environmental Quality, Water Resources 

Division

Phil Argiroff, Chief, Permits Section 

Dina Klemans, Chief, Surface Water Assessment Section

Lou Reinwasser, Attorney from the Michigan Department of Attorney General