The Confederated Tribes of the Colville Reservation 

Fred Leutner 

Office of the Reservation Attorney 

P.O. Box 150, Nespelem, WA 99155 

Office of Science & Technology (Mail Code 4305T) 

U.S Environmental Protection Agency 

1200 Pennsylvania Avenue, NW, Washington DC 20460 

July 7, 2014 

Mr. Leutner: 

(509) 634-2381 

FAX: (509) 634-2387 

The Confederated Tribes of the Colville Reservation supports EPA's effort to reinterpret 

section 518 of the CW A, and encourages EPA to formally proceed in adopting the position that 

section 518 of the CW A is an expressed delegation by Congress for eligible tribes to administer 

CW A regulatory programs within their reservations irrespective of land ownership. Such an 

interpretation is consistent with both legal and ecological principles, and would greatly facilitate 

the ability of tribal nations to exercise the authority granted to them by Congress. 

The proposed reinterpretation of CW A Section 518 would provide regulatory 

consistency. Section 301 ( d)(2)(b) of the Clean Air Act ("CAA") provides in part that "the 

functions to be exercised by the Indian tribe pertain to the management and protection of air 

resources within the exterior boundaries of the reservation or other areas within the tribe's 

jurisdiction." Similarly, section 315 of the CWA provides in part, "the functions to be exercised 

by the Indian tribe pertain to the management and protection of water resources which are held by 

an Indian tribe, held by the United States in trust for Indians, held by a member of an Indian tribe 

if such property interest is subject to a trust restriction on alienation, or otherwise within the 

borders of an Indian reservation." (emphasis added). The EPA interprets the CAA as a grant of 

authority by Congress which enables eligible tribes to address conduct relating to air quality on all 

lands, including non-Indian-owned fee lands, within the exterior boundaries of a reservation. 63 

Fed. Reg. 7254,7254 (February 12, 1998). The EPA has specifically interpreted CAA section 

301(d)(2)(B) in conjunction with the overall framework ofthe CAA as establishing a territorial 

view of tribal jurisdiction and authorizing a tribal role for all air resources within the exterior 

boundaries of Indian reservations without distinguishing among various categories of onreservation land I d. In contrast, the EPA interprets Section 315 of the CW A to require that a tribe 

show authority 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). As the EPA has noted, the jurisdictional language and legislative history of the CAA 

and CW A are not identical. However, the key provisions outlined above contain adequate 

similarity to require a consistent interpretation in regards to jurisdiction over lands within the 

boundaries of an Indian Reservation. 

The proposed interpretation of Section 315 is also appropriate given the emerging case 

law, which recognizes the impracticability of multiple regulators of a unitary resource, and the 

preemption of state regulatory authority over such resources within the boundaries of a 

reservation. See, Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981)( holding 
that where land is set aside for an Indian reservation, Congress has reserved it for federal, as 

opposed to state needs, that state regulation of a system entirely within the reservation 

boundaries would create the jurisdictional confusion Congress has sought to avoid, and that a 

water system is a unitary resource and the actions of one user have an immediate and direct 

effect on other users); Arizona Public Service Co. v. E.P.A., 211 F.3d 1280 (C.A.D.C. 2000) 

(Declining to uphold interpretation of the 1990 Clean Air Act Amendments that would result in 

a "checkerboard" pattern of regulation within a reservation's boundaries on basis that such an 

interpretation would be inconsistent with the purpose and provisions of the Act); Montana v. 

U.S. E.P.A., 141 F.Supp.2d (D. Mont 1998) (Court upholding EPA's findings, including, inter 

alia, (!)explaining that land ownership on the FortPeck Indian Reservation is "checkerboarded" 

and "pollution sources entering surface waters on non-Indian lands are likely to affect the quality 

of downstream tribal waters." Finally, it is worth noting that Montana itself was a case 

addressing regulation ofhunting and fishing, two discrete activities that led themselves more 

easily to a checkerboard pattern of regulation. The requirement for tribes to demonstrate a 

showing of inherent authority vis-a-vis the Montana exceptions is contrary to established federal 

Indian law, and has the potential to undermine future tribal efforts to assert full authority over 

reservation environments. 

The proposed reinterpretation could result in an increase in the number of tribes planning 

to pursue TAS, or actively engaged in TAS process, for regulatory programs under the CWA. 

Currently, only 48 of the 566 federally recognized tribes have successfully demonstrated their 

own inherent regulatory authority to EPA to implement CW A water quality standard programs. 

Increased tribal participation would benefit all tribes. The Colville Tribe can speak from its own 

first- hand experience that receiving TAS can be a difficult and time consuming process. In our 

case, application preparation occurred during a period of three years, involving assembly of 433 

pages of documentation, and EPA's review of the draft application. The Tribe submitted their 

formal application in December 2013, and as of this date EPA is preparing to advertise for public 

comment. We believe the proposed reinterpretation would significantly expedite theTAS 

application process. 

The Confederated Tribes of the Colville Reservation appreciates the opportunity to 

provide input and support to the reinterpretation of the CW A T AS provision. We look forward 

to continued collaboration as EPA moves forward with the process. 

Respectfully, 

d{~trJo-\_ 

Chaitna Sinha, 

Office of Reservation Attorney 

Confederated Tribes ofthe Colville Reservation