## The Confederated Tribes ofthe Colville Reservation

Fred Leutner Office ofthe Reservation Attorney P.O. Box 150, Nespelem, WA 99155

Office ofScience & 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 ofthe Colville Reservation supports EPA's effort to reinterpret section 518 ofthe CW A, and encourages EPA to formally proceed in adopting the position that section 518 ofthe CW A is an expressed delegation by Congress for eligible tribes to administer CW A regulatory programs within their reservations irrespective ofland ownership. Such an interpretation is consistent withboth legal and ecological principles, and would greatly facilitate the ability oftribal nations to exercise the authority granted to them byCongress.
The proposed reinterpretation ofCW A Section 518 would provide regulatory consistency. Section 301 (d)(2)(b) ofthe Clean Air Act ("CAA") provides in part that "the functions to be exercised bythe Indian tribe pertain to the management and protection ofair
resources within the exterior boundaries ofthe reservation or other areas within the tribe's jurisdiction." Similarly, section 315 ofthe CWA provides in part, "the functions to be exercised bythe Indian tribe pertain to the management and protection ofwater resources which are held by
an Indian tribe, held bythe United States in trust for Indians, held by a member ofan Indian tribe ifsuch property interest is subject to a trust restriction on alienation, or otherwise within the borders ofan 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 exteriorboundaries ofa 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 oftribaljurisdiction and authorizing a tribal role for all air resources within the exterior boundaries ofIndian reservations without distinguishing among various categories ofonreservation land Id. In contrast, the EPA interprets Section 315 ofthe CWA to require that a tribe show authority overthe water resources for which it seeks TAS approval, including any authority the tribe asserts overnonmember activities on the reservation. 56 Fed. Reg. 64876, 64880 (Dec. 12, 1991). As the EPA has noted, thejurisdictional language and legislative history ofthe CAA and CW A are not identical. However, the keyprovisions outlined above contain adequate similarityto require a consistent interpretation in regards tojurisdiction over lands within the boundaries ofan Indian Reservation.
The proposed interpretation ofSection 315 is also appropriate given the emerging case law, whichrecognizes the impracticability ofmultiple regulators ofa unitary resource, and the preemption ofstate regulatory authority over such resources within the boundaries ofa reservation. 

### See, Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981)( holdingthat where land is set aside for an Indian reservation, Congress has reserved it for federal, as opposed to state needs, that state regulation ofa system entirely within the reservation boundaries would create thejurisdictional confusion Congress has sought to avoid, and that a water system is a unitary resource and the actions ofone userhave an immediate and direct effect on otherusers); Arizona Public Service Co. v. E.P.A., 211 F.3d 1280 (C.A.D.C. 2000) (Declining to uphold interpretation ofthe 1990 Clean AirAct Amendments that would result in
a "checkerboard" pattern ofregulation within a reservation's boundaries on basis that such an interpretation would be inconsistent with the purpose and provisions ofthe Act); Montana v. U.S. E.P.A., 141 F

.Supp

.2d (D

. Mont 1998) (Courtupholding 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 likelyto affect the quality ofdownstream tribal waters." Finally, it is worth noting that Montana itselfwas a case addressing regulation ofhunting and fishing, two discrete activities that led themselves more easilyto a checkerboard pattern ofregulation. The requirement for tribes to demonstrate a showing ofinherent 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 oftribes planning to pursue TAS, or actively engaged in TAS process, for regulatory programs under the CWA. Currently, only48 ofthe 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 canbe a difficult and time consumingprocess. In our case, application preparation occurred during a period ofthree years, involving assembly of433 pages ofdocumentation, and EPA's review ofthe draft application. The Tribe submitted their formal application in December 2013, and as ofthis date EPA is preparing to advertise for public comment. We believe the proposed reinterpretation would significantly expedite theTAS application process. The Confederated Tribes ofthe Colville Reservation appreciates the opportunity to provide input and support to the reinterpretation ofthe CW A TAS provision. We look forward to continued collaboration as EPA moves forward with the process.
Respectfully,

# d{~trJo-\_ Chaitna Sinha, Office ofReservation Attorney Confederated Tribes ofthe Colville Reservation