# fiOSI

FORT HALL INDIAN RESERVATION PHONE (208) 478-3700 FAX # (208) 237-0797

Corey Buffo, Chief July 1, 2014

Regional, State an d Tri bal Standards S upport Branch U
.S
. EPA , Mail Code 4305T 1200 Perms ylvania Avenue, NW Washington, DC 20460 By email to: TASreinterpretation@epa.gov 

# ITRIIU

FORT HALL BUSINESS COUNCIL P.O. BOX 306 FORT HALL, IDAHO 83203



### Re: Comments on Potential Reinterpretation of Clean Water Act TAS Provisions Dear Mr. Buffo : The Shoshone-B annock Tribes strongly support an interpretation of Clean Water Act ("C WA ") § 518(e) , 33 U.S.C. § l377(e), as a congressional delegation of authority to Indian tribes to administer CWA programs throughout their reservation s . This interpretation is consist ent w ith the express language of the CW A and is an appropriate recognition of tribal sovereignty. The Shoshone-Bannock Tribes received approval (known as "treatment as a state" or "TAS") in 2005 to administer a water quality program under CWA § 303(c) and to issue certifications under CWA § 40 1 for waters within the Fort Hall Reservation

. The Tribes are currently in the process of developing water quality standards, which they will be submitting to EPA in the near future for federal approval. Once these standards are approved, the Tribes anticipate , based in part on comments that EPA received during the T AS approval process , that non- Indians subject to the standards will chall enge them based on Montana v. United States , 45 0 U
. S
. 544 (1981) , despite EPA ' s prior approval of tribal authority. Interpreting CWA § 518(e) as a congressional delegation of authority would clarify the Tribes ' jurisdiction , remove the likelihood of litigation, and obviate the need for the Tribes to devote substantial time and resources to making Montana demonstrations. Moreover, EPA's proposed reinterpr etation is in fact the correct interpretation of the CWA, as confirmed by case law. As EPA acknowledged in its initial rulemakings under CWA § 518(e), that prov ision was specifically cited by the Supreme Court as an example of a congressional delegation of authority to tribes. Brendale v . Confed. Tribes & Bands of theMr. Corey Buffo May 28,2014 Page2 Yakima Nation, 492 U.S. 408, 428 (1989); see also Montana v. EPA, 941 F. Supp. 945 , 951-52, 957 and n . 12. Moreover, EPA ' s subsequent interpretation of comparable language in Clean Air Act § 301(d) , 42 U.S.C
. § 7601(d), as a congressional delegation was upheld in Ariz. Pub. Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000). Compare CWA § 518(e) (acknowledging tribal authority over water resources "within the borders of an Indian reservation") with Clean Air Act § 301(d) (acknowledging tribal authority over air resources "within the exterior boundaries of the reservation"). EPA also has noted that "the activities regulated under the various environmental statutes generally have serious and substantial impacts on human health and welfare;" that the CWA itself "constitutes, in effect, a legislative determination that activities which affect surface water and critical habitat quality may have serious and substantial impacts;" that " because of the mobile nature of pollutants in surface waters and the relatively small length/size of

... water bodies on reservations, it would be practically very difficult to separate out the effects of water quality impairment on non-Indian fee land within a reservation with those on tribal portions;" and that " any impairment that occurs on, or as a result of, activities on non-Indian fee lands are [sic] very likely to impair the water and critical habitat quality of the tribal lands." 56 Fed. Reg. 64876, 64878 (Dec. 12, 1991). There is therefore little if any reason to require each and every tribe applying for CW A approval of water quality standards to demonstrate, through application of the Montana test , these very same principles, especially in light of the substantial amount of time and effort Montana demonstrations entail

. Finally, as EPA has recognized , id., it is vital to human health and the environment to ensure that all surface waters and critical habitats are protected, s ee CWA § 101(a), 33 U.S.C. § 125l(a) , including those on tribal lands

. Therefore, EPA not only should encourage tribes to promulgate and obtain CW A approval for water quality standards on their reservations, but also EPA should refrain from estabIishing unnecessary requirements that deter tribes from developing water quality standards. EPA's proposed reinterpretation ofCWA§ 518(e) serves both purposes. For all these reasons, the Shoshone

- Bannock Tribes encourage EPA to proceed with a rulemaking reinterpreting CW A§ 518(e) as a congressional delegation of CW A authority to Indian tribes to administer CW A programs throughout their reservations.

Cc: Tribal Water Resources Department Chrono Sincerely, (

# '?~~..£**/** Nathan Small Chairman, Fort Hall Bu siness Council