### Equal Treatment for Tribes in Seeking Eligibility under EPA Regulatory Programs

The focus of this discussion is to encourage EPA to treat T ribes equal ly , in the same manner as S tates when determining eligibility to carry out Clean Water Act (CWA ) regulat ory programs. Currently
, EPA does not treat Tribes and S tates in the s ame 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 S tate , EPA chooses to
im plement a policy that calls for a jurisdictional showing 1 over the water resources for which a Tribe is seeking regulatory program s

. This call for a jurisdictional showing is based on the “Montana Test” which restrict s Tribal civil jurisdiction over non T ribal 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 jurisdiction al showing impedes the efforts of self governance for many Tribes by significantly limiting the i mplement ation 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 c ommunit ies 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 t hat 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 deter mining eligibi lity to carry out regulatory

programs. Under the CAA
, Tr ibes are delegated the program like states, and thus do not have to go through the Montana T est. EPA interprets the CAA TAS provision as a delegation of authority by Congress to eligible T ribes to ma nage 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 o n Tribal lands 2 . 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 S tates 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).T he goal of the C WA is to provide safe and clean water for both the n ative and n on

- n ative

American c o mmunit ies alike , it is imperative that EPA reassess its policy for determining Tribal eligibility to carry out C WA 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 gr eater number of n ative and non

- native Americans whos e waters are currently left unregulated due to the onerous burden placed on Tribes to pas s the Mo ntana test.