Equal Treatment for Tribes in Seeking Eligibility under EPA Regulatory Programs

The focus of this discussion is to encourage EPA to treat Tribes equally, in the same manner as 

States when determining eligibility to carry out Clean Water Act (CWA) regulatory programs. 

Currently, EPA does not treat Tribes and States in the same manner even though it has the 

authority to do so under Section 518(e) (2) of the CWA. 

Although EPA has the authority to treat Tribes the same as it does a State, EPA chooses to 

implement a policy that calls for a jurisdictional showing1 over the water resources for which a 

Tribe is seeking regulatory programs. This call for a jurisdictional showing is based on the 

“Montana Test” which restricts Tribal civil jurisdiction over non Tribal property within their 

Reservations and presents an unequal burden to Tribes not found in EPA’s handling of State’s 

authority.

The call for a jurisdictional showing impedes the efforts of self governance for many Tribes by 

significantly limiting the implementation of the CWA regulatory programs within their 

Reservation borders. This reliance on a jurisdictional showing before granting Tribal regulatory 

authority has prevented many Tribes from establishing federally approved water quality 

standards for the waters of their Reservations. This has left a significant portion of Native 

American communities without the protection of the CWA to safe guard their water resources.

Given EPA’s restricted position regarding eligibility to carry out CWA regulatory programs for 

Tribes, it is problematic that it does not take the same position with the Clean Air Act (CAA). 

Under the CAA, with very similar Congressional Delegation of Authority, EPA makes no 

distinctions between Tribes and States in determining eligibility to carry out regulatory 

programs. Under the CAA, Tribes are delegated the program like states, and thus do not have to 

go through the Montana Test. EPA interprets the CAA TAS provision as a delegation of 

authority by Congress to eligible Tribes to manage air resources throughout their reservations 

regardless of its membership or land ownership status. Moreover, several Court opinions have 

recognized and acknowledged congressional authorization and delegation as a basis for 

environmental enforcement on Tribal lands2. It appears that similar authorization practices 

should also apply to environmental concerns for protecting surface waters under the CWA.

 

1

Jurisdictional showing... the legal basis for the Tribe’s assertion over the water resources for which it seeks TAS 

approval, including any authority the Tribe asserts over nonmember activities on the Reservation. 56 Fed Reg. 

64876, 64880 (Dec. 12, 1991). 

2 United States v. Mazurie, 419 U.S. 544 (1975); Brendale v. Confederated Tribes and Band of the Yakima 

Nation,492 U.S. 408 (1989); Arizona Public Service Co. v. Environmental Protection Agency,211 F. 3d 1280 (D.C. Cir. 

2000).
The goal of the CWA is to provide safe and clean water for both the native and non-native 

American communities alike, it is imperative that EPA reassess its policy for determining Tribal 

eligibility to carry out CWA regulatory programs. By treating the determination of eligibility of 

Tribes the same as States, EPA will increase the number of Tribes able to participate in CWA

regulatory programs and therefore, provide the protection of water resources for a greater 

number of native and non-native Americans whose waters are currently left unregulated due to 

the onerous burden placed on Tribes to pass the Montana test.