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FORT HALL INDIAN RESERVATION 

PHONE (208) 478-3700 

FAX # (208) 237-0797 

Corey Buffo, Chief 

July 1, 2014 

Regional, State and Tribal Standards Support Branch 

U.S. EPA, Mail Code 4305T 

1200 Permsylvania 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 T AS Provisions 

Dear Mr. Buffo: 

The Shoshone-Bannock Tribes strongly support an interpretation of Clean Water Act 

("CWA") § 518(e), 33 U.S.C. § l377(e), as a congressional delegation of authority to Indian 

tribes to administer CW A programs throughout their reservations. This interpretation is 

consistent with 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 § 401 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 challenge them based on Montana v. United States, 450 

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 reinterpretation 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 provision was specifically cited by the Supreme Court as an example of a 

congressional delegation of authority to tribes. Brendale v. Confed. Tribes & Bands of the 
Mr. 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, see 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 estab I ishing 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 

rule making 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 Business Council