Indian Tribes: EPA Should Reduce the Review Time for Tribal Requests to Manage Environmental Programs
Published: 2005-10-31T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The Clean Water, Safe Drinking Water, and Clean Air Acts authorize the Environmental Protection Agency (EPA) to treat eligible Indian tribes in the same manner as a state (referred to as TAS) for implementing and managing environmental programs on Indian lands. Some states are concerned that tribes receiving authority to manage these programs may set standards that exceed the state standards and hinder states' economic development. GAO was asked to report on the (1) extent to which EPA has followed its processes for reviewing and approving tribal applications for TAS and program authorization under the three acts, (2) programs EPA uses to fund tribal environmental activities and the amount of funds provided to tribes between fiscal years 2002 and 2004, and (3) types of disagreements between parties over EPA's approval of TAS status and program authorization and methods used to address these disagreements.
section_title: What GAO Found
paragraphs: EPA generally followed its established processes for reviewing and approving tribal requests for TAS and program authority under the three acts, according to GAO's analysis of approved requests. However, the review time for approving these requests generally took from about 1 year to more than 4 years. In addition, nearly all of the requests currently under review were submitted more than 1 year ago. Key factors contributing to the lengthy reviews include the multiple reviews required by the agency's regional and headquarters offices, a lack of emphasis within the agency to complete the reviews in a timely manner, and turnover of tribal and EPA staff. Moreover, EPA has not developed a written strategy that establishes overall time frames for reviewing requests. EPA officials agreed that more could be done to improve the timeliness of the review process but said that complex issues--including evolving Indian case law and jurisdictional issues--may have contributed to the lengthy reviews. Furthermore, EPA's review process is not always transparent on the status of tribes' TAS requests. Lack of transparency limits tribes' understanding of what issues may be delaying EPA's approval and what actions, if any, may be needed to address the issues. EPA provided Indian tribes about $360 million in grants to fund a broad range of tribal environmental activities from fiscal years 2002 through 2004. About half of these funds were distributed through two acts: the Indian Environmental General Assistance Program Act (about $114 million)--to help build capacity to administer environmental programs--and the Clean Water Act (about $66 million)--to help prevent and reduce water pollution. Since 1986, when Congress began amending the three environmental acts to allow TAS for tribes, disagreements over land boundaries and environmental standards have arisen between tribes, states, and others. Disagreements have been addressed through litigation, collaboration, and federal laws.

section_title: Letter
paragraphs: The Clean Water Act, Safe Drinking Water Act, and Clean Air Act authorize  the Environmental Protection Agency (EPA) to treat Indian tribes in the  same manner as it does states, referred to as TAS, for the purposes of  implementing these laws on tribal lands. Recent lawsuits and  disagreements between parties over EPA’s approval of tribes’ TAS status  and authority to implement and enforce a given environmental program  (program authority) highlight the sensitivities associated with TAS  approval. On the one hand, tribes want to be treated as states and assume  program responsibilities to protect their environmental resources because  they are sovereign governments and have specific knowledge of their  environmental needs. Tribes also generally believe that TAS status and  program authority are important steps in addressing the potential impacts  of economic development affecting their land. On the other hand, in some  cases, states are concerned that tribes with program authority may impose  standards that are more stringent than the state’s, resulting in a patchwork  of standards within the state and potentially hindering the state’s economic  development plans. In addition, conflicts sometimes arise between states  and tribes over the extent of tribal jurisdiction in cases where Indian lands  are no longer located within formal reservations or in cases in which  nontribe members live within reservation areas.
EPA’s Indian policy, established in 1984, states, among other things, that  EPA “will take affirmative steps to encourage and assist tribes in assuming  regulatory and program management responsibilities…within the  constraints of its authority and resources.” As such, EPA offers several  financial assistance programs to tribes. For example, the Indian General  Assistance Program, established under the Indian Environmental General  Assistance Program Act of 1992, supports tribes’ efforts to develop their  capability to implement environmental programs. In addition, grants under  the Clean Water, Safe Drinking Water, and Clean Air Acts help tribes to  develop water quality programs, create drinking water protection  programs, and plan and manage air quality activities. Some of these grants  require TAS status, others do not.
To be approved for TAS, which is a prerequisite for obtaining program  authority under the three environmental acts, a tribe must demonstrate its  eligibility by showing that it (1) is officially recognized by the Secretary of  the Interior, (2) has a governing body that is currently carrying out  substantial governmental duties and powers over a defined area, (3) has  jurisdiction over the land where the resources are located, and (4) is  capable of administering the program. Once EPA receives a tribe’s  application for TAS, it has 30 days to notify appropriate governmental  entities of the tribe’s request.
After EPA approves a tribe’s TAS request, the tribe needs to obtain EPA  authorization to implement and enforce a given program. EPA generally  recommends that tribes adopt the standards of the adjacent states when  first setting tribal standards.  However, EPA does not track the extent to  which tribes adopt adjacent state standards. Under its regulations for  implementing the Clean Water Act, EPA requires a tribe to hold a public  hearing so that interested parties can review and comment on the tribe’s  proposed water quality standards before EPA approves them. EPA’s  regulations under the Safe Drinking Water Act require the agency to  announce in the Federal Register that the tribe has the authority to  administer a program and allow 30 days to request a public hearing. Under  its regulations for implementing the Clean Air Act’s operating permits  program, EPA must also announce its approval for a tribe to administer a  program in the Federal Register; however, the notice is not subject to  public comment.
There are 562 federally recognized tribes. Fifty-seven tribal entities have  requested TAS in order to obtain program authority under at least one of  the three acts, and some for multiple programs, for a total of 61 requests.   EPA has approved 32 of these requests and is still reviewing 29. Thirty of  the approved TAS requests were to implement a clean water program, 1  was for a safe drinking water program, and 1 was for a clean air program.  For 26 of the 32 approved TAS requests, tribes have also received EPA  approval of water quality standards, or authorization to administer public  water systems or issue and enforce federal air permits.
You asked us to report on the (1) extent to which EPA has followed its  processes for reviewing and approving tribal requests for treatment as a  state and program authorization under the Clean Water, the Safe Drinking  Water, and the Clean Air Acts; (2) programs EPA uses to fund tribal  environmental activities and the amount of funding it has provided to tribes  between fiscal years 2002 and 2004; and (3) types of disagreements that  have occurred between parties over EPA’s approval of tribes’ TAS status  and program authorization and the methods that have been used to address  these disagreements.
To address these issues, we met with selected officials from EPA and the  Department of the Interior’s Bureau of Indian Affairs in Washington, D.C.,  and three EPA regions—in Region 6 (Dallas), Region 9 (San Francisco), and  Region 10 (Seattle). We chose these regions because they had the largest  number of approvals for program authority—18 approvals under the Clean  Water Act, and 1 each under the Safe Drinking Water and Clean Air Acts.  We reviewed a total of 20 case files in detail in these three regions— accounting for 77 percent of all approved tribal requests (20 of 26) for  program authorization under the three acts—to determine whether EPA  had followed established TAS and program authorization processes. Our  case file review included, among other things, an assessment of whether  EPA met its requirements to notify appropriate governmental entities of a  tribe’s request within 30 days of receipt. We also reviewed data provided  by EPA on another 12 TAS and/or program authority approvals, bringing  the total number of TAS approvals reviewed to 32. We focused primarily on  the Clean Water Act because most activity has occurred under the act.  However, we also reviewed EPA’s process for reviewing and approving  tribal requests under the Safe Drinking Water and Clean Air Acts. In  addition, we met with state officials and representatives of Indian tribes in  Arizona, New Mexico, Oklahoma, and Washington. To address the second  objective, we analyzed EPA’s Integrated Grants Management System grants  data for tribes that have received financial assistance for environmental  programs for fiscal years 2002 through 2004. We assessed the reliability of  EPA’s grants data system and found it sufficiently reliable for the purposes  of our report. Finally, we interviewed selected EPA, state, and tribal  officials to discuss the methods used to address issues associated with  areas of possible disagreements, such as jurisdictional boundaries, that  interested parties may raise. A more detailed description of our scope and  methodology is presented in appendix I. We performed our work between  November 2004 and October 2005, in accordance with generally accepted  government auditing standards.
subsections: section_title: Background
paragraphs: The Clean Water, Safe Drinking Water, and Clean Air Acts emphasize the  importance of state involvement in protecting the environment and public  health and allow EPA to authorize states to implement their own programs  in lieu of the federal program—referred to as program authorization. From  1986 to 1990, Congress amended these three acts to authorize EPA to treat  Indian tribes in the same manner as states for purposes of program  authorization.
Under EPA’s implementation of the Clean Water Act, a tribe may submit a  request to EPA for TAS status and then submit a request for approval of its  adopted water quality standards, or submit both the TAS request and the  water quality standards approval request at the same time. Section 518 of  the Clean Water Act lists the eligibility criteria EPA will use to approve TAS  status and to authorize Indian tribes to administer Clean Water Act  programs.
In applying for TAS under the Clean Water Act, a tribe, among other things,  submits a descriptive statement that includes a map or legal description of  the area over which the tribe intends to assert jurisdiction. For purposes of  this discussion, Indian lands can be separated into three general categories:   (1) lands within the exterior boundaries of a formal reservation, (2) tribal  trust lands lying outside formal reservation boundaries, and (3) individual  allotments lying outside reservation boundaries. EPA considers lands  within the boundaries of a formal reservation and tribal trust lands lying  outside of formal boundaries to be reservations for purposes of section 518  of the Clean Water Act. For the third category—individual allotments— EPA has not historically considered the Clean Water Act to cover  allotments outside of reservations.
EPA follows similar processes for TAS under the Clean Water, Safe  Drinking Water, and Clean Air Acts. EPA’s approval process for tribal  requests for TAS begins in its regional offices, where officials verify that the  requests meet eligibility requirements. EPA also requires its headquarters  staff to review the first TAS request received and approved in each region under the Clean Water and Safe Drinking Water Acts and to review all  other TAS requests, that appear to be nationally significant because, for  example, of new legal issues. Where practical, regional and headquarters  reviews are conducted concurrently, according to EPA officials. Except for  specific tasks, such as the 30-day public comment period, EPA has not  established time frames or goals for the length of its review process.
In addition to relevant statutory and regulatory guidance, EPA may refer to  federal case law concerning Indian tribes when reviewing a tribe’s TAS  request, which we refer to as Indian case law in this report. For example,  EPA uses Indian case law to determine whether a tribe has the authority to  regulate an activity on land owned by nonmembers but located within a  reservation. In particular, in 1981, the Supreme Court held that, as a general  rule, absent delegation by federal statute or treaty, Indian tribes lack  authority to regulate the conduct of nonmembers on non-Indian land within  reservation boundaries, except when (1) nonmembers enter into a  consensual relationship with the tribe or (2) activities by nonmembers on  lands within the reservation threaten or have a direct effect on the political  integrity, economic security, or health or welfare of the tribe. This ruling is  known as the Montana test.
With respect to program authorization, EPA’s review process is generally  the same for tribes and states. Specifically:  For the Clean Water Act, EPA determines, for example, whether the (1)  water uses are consistent with the requirements of the act, (2) adopted  criteria protect the designated water uses, and (3) appropriate technical  and scientific data and analyses have been used. The Clean Water Act  allows states and tribes to establish water quality standards that are  more stringent than federal requirements.
Under the Safe Drinking Water Act, EPA requires states and tribes to  demonstrate the capability to administer primary enforcement  responsibility in a number of key areas. Among other things, EPA  determines whether the state or tribe has (1) adopted drinking water  regulations that meet or exceed EPA’s national primary drinking water  regulations; (2) adopted and is implementing adequate procedures for  enforcing its regulations, including demonstrating authority to assess  penalties for violations; and (3) adopted and can implement an adequate  plan to provide safe drinking water under emergency circumstances,  such as hurricanes and other natural disasters.
Under the Clean Air Act, EPA can authorize states and tribes to issue  and enforce federal air permits. For this authority, the tribe must, among  other things, submit a legal opinion, stating that the laws of the Indian  tribe provide adequate authority to carry out all aspects of the delegated  program. EPA and the eligible tribe then sign a Delegation of Authority  Agreement, which specifies the provisions that the tribe is authorized to  implement on behalf of EPA. EPA is responsible for announcing this  delegation in the Federal Register.
Since 1988, 57 of the 562 federally recognized tribal entities in the United  States have submitted 61 requests seeking TAS for program authority under  the three acts; these entities are from 17 states. Of the 61 TAS requests,  EPA has approved 32:  30 under the Clean Water Act, 1 under the Safe  Drinking Water Act, and 1 under the Clean Air Act. The remainder are  under review. Of the 32 approved TAS requests, 26 have also been approved  for program authority—24 for Clean Water, 1 for Safe Drinking Water, and 1  for Clean Air. Figure 1 shows the states where tribes have submitted and  been approved for TAS status under the three environmental acts, the  number of TAS submittals, and the number of TAS approvals in each state.
EPA relies on grants as one of its primary ways to carry out its mission of  protecting human health and safeguarding the environment. Each fiscal  year, EPA awards approximately $4 billion in grants to state and local  governments, tribes, educational, nonprofit organizations, and other  entities for projects that range from conducting environmental research to  constructing wastewater treatment facilities to developing regulatory  programs. The funds are generally based on formulas laid out under each  law or regulation. To be eligible for most EPA grant programs, a tribe must  be federally recognized. In addition, for some grant programs, such as  section 106—for the prevention, reduction, and elimination of water  pollution--under the Clean Water Act, a tribe must also have obtained TAS  status to be eligible. For other grants, such as section 105—to develop and  administer programs that prevent and control air pollution or implement  national air quality standards--under the Clean Air Act, a tribe is not  required to have TAS status, but TAS status has a substantially lower  matching contribution requirement (from 5 percent with TAS status to 40  percent without). The grants’ TAS criteria are less demanding and thus the  review process is less rigorous than the review process for TAS for  program authority. In addition, the grant decision is based solely on EPA’s  expertise, and EPA does not generally get public comments on whether the  tribe has jurisdiction. Approval for TAS for grant purposes does not  qualify tribes for TAS for program authority purposes; however, tribes may  use their TAS grant status to help demonstrate capability to administer a  program when applying for program authority TAS. Finally, for other grant  programs, such as the Indian General Assistance Program, no TAS  requirement exists.
Financial assistance for tribal environmental programs is funded under  EPA’s State and Tribal Assistance Grants appropriation. The funds are  generally based on specific formulas laid out in law or regulation, and  regions that have the largest number of tribes receive the largest  proportion of grant awards and grant dollars. The five states receiving the  most tribal grants—Alaska, Arizona, California, New Mexico, and  Oklahoma—are located in EPA’s Regions 6, 9, and 10. Of the 1,343 grants  awarded to Indian tribes under the Clean Water, Safe Drinking Water, Clean  Air, and Indian General Assistance Program Acts between fiscal years 2002  through 2004, about 99 percent were awarded by EPA’s regions.
Each grant program has its own request and award process and grant  opportunities are based on funding availability. As a result, a tribe may  receive a grant in one year and not in another. While funding of tribal grants  has remained relatively constant, according to EPA officials, the agency’s  outreach to tribes and the growing awareness of environmental issues  among tribes, has led to steadily increasing numbers of requests and grants  being awarded.
section_title: EPA’s Approval Process for TAS and Program Authorization Was Generally Followed, but Some TAS Approvals Were Delayed by Lengthy Reviews
paragraphs: For the 20 cases we examined in detail, EPA followed its processes for  approving tribal requests for TAS and for program authorization, except for  adhering to the 30-day time frame for notifying governmental entities.  However, for these 20 cases, as well as for another 12 tribal requests for  TAS that EPA approved, the TAS review process was often lengthy. In  addition to those 32 TAS approvals, EPA is currently reviewing 29 TAS  requests, 27 of which were submitted more than a year ago. EPA officials  agreed that more could be done to improve the timeliness of the review  process, and the agency has recently begun working with its regions to  determine the status of outstanding requests and how best to expedite  reviews. The officials stated that evolving Indian case law and complexities  associated with some jurisdictional issues sometimes required them to  spend more time evaluating tribal TAS requests. Delays in the approval  process may hinder a tribe’s efforts to control its environmental resources.  Furthermore, as we learned during our review, lengthy delays and a lack of  transparency in the review process may discourage tribes from even  submitting requests for TAS status. In terms of tribal requests for approval  of water quality standards, EPA approved most tribal requests in less than 1  year but the agency generally did not meet its own standard for approval  within 60 days.
subsections: section_title: EPA Followed Its Procedures for Reviewing and Approving Tribal Requests, except for Timely Notification to Affected Governmental Entities
paragraphs: According to our review of 20 approved cases in Regions 6, 9, and 10, EPA  generally followed its established processes for reviewing and approving  TAS requests. For example, EPA’s files included the required  documentation to support its decision to approve a TAS request. First, EPA  always ensured that the tribe included a statement that the tribe is  recognized by the Secretary of the Interior.
Second, we found that EPA always ensured that tribes provided a  statement that their governing body is carrying out substantial  governmental duties and powers. To meet this requirement, tribes (1)  described the form of tribal government; (2) described the types of  governmental functions currently performed by the tribal governing body;  and (3) identified the source of the tribal government’s authority to carry  out these governmental functions. Among other things, tribes provided  tribal constitutions, by-laws, and treaties to demonstrate that they were  carrying out substantial governmental duties and powers.
Third, the cases we reviewed showed that EPA always ensured that the  tribe documented its jurisdiction. Specifically, the files showed that EPA  collected a map or legal description of the area over which the tribe  intended to regulate—surface water quality, drinking water, or air quality; a  statement by the tribe’s legal counsel describing the basis for the tribe’s  assertion of authority; and documentation identifying the resources for  which the tribe proposed to establish environmental standards. Some cases  indicated that EPA followed up with a tribe when the request lacked  adequate documentation to meet this requirement.
Finally, EPA ensured that tribes submitted a narrative statement describing  their capability to administer the program to which they were applying. For  example, EPA ensured that tribes submitted a description of  their previous management experience;   existing environmental or public health programs administered by the  tribal governing body and copies of related tribal laws, policies, and  regulations;   the entity that exercises the executive, legislative, and judicial functions   the existing, or proposed, agency that will assume primary  responsibility for the environmental standards; and   the staffs’ technical and administrative capabilities for managing an  effective program, and a plan for how the tribe will acquire and fund  additional expertise.
Additionally, EPA is required to promptly notify the tribe when the agency  has received the TAS request. In three cases, EPA did not have evidence  showing that it had notified the tribe that it had received the tribe’s request.  In these cases, an EPA regional official told us, the agency may have  telephoned the tribe to acknowledge receipt of the tribe’s request, and this  information would not necessarily be documented.
The only two time frames EPA has established require the agency to  provide (1) appropriate notice to affected governmental entities within 30  days of receipt of a tribe’s request for TAS and (2) interested parties with 30  days to comment on the tribe’s request. For the 20 cases we reviewed,  EPA always provided affected governmental entities and interested parties  30 days to comment. However, in 17 of the 20 cases, EPA did not notify  affected governmental entities within its established 30-day time frame of a  tribe’s TAS request, but instead took about 5 months, on average. EPA  officials told us that, in most cases, they worked with Indian tribes to  develop their TAS applications prior to the tribe’s submission of its  application. However, they said that in some cases, applications were still  not complete when they were received, resulting in delays in providing  notification to governmental entities. EPA said it does not like to notify  affected governmental entities of a tribal request until EPA agrees with the  tribe that the application is complete.
section_title: EPA’s Process for Approving TAS Requests Was Often Lengthy and Not Guided by Clear Time Frames
paragraphs: Figure 2 shows the review times for the 32 TAS requests approved from  1991 through June 2005. Appendix II provides additional details on the 32  tribal entities that were approved for TAS as of June 2005, the dates that the  requests were submitted, and the date EPA approved them.
Review times for the 32 requests ranged from 3 months to nearly 7 years.  As figure 2 shows, 19 of the TAS reviews took 1 year or more for approval.  Specifically, for the 20 cases we examined, 10 took more than 1 year for  approval, with 2 taking more than 4 years. EPA regulations require that the  agency process TAS requests in a “timely” manner and internal guidance  issued in 1998 emphasizes the importance of an efficient review process.  However, EPA has never developed a written strategy that clarifies what it  means by timeliness, including performance goals, and does not routinely  track the time it takes to complete its review of these requests.
section_title: Reviews for Pending TAS Requests Continue to Be Lengthy
paragraphs: Figure 3 shows the 29 TAS requests under review as of June 2005 and the  time elapsed between the request and June 2005. As the figure shows, the  time required for reviewing these TAS requests is generally taking 1 or  more years, with 24 of the TAS requests under review for more than 2 years;  2 of the 24 requests have been under review for over 10 years. See appendix  III for the details on the dates that requests were submitted.
The number of TAS requests awaiting EPA approval has increased along  with the average review time. Specifically, as of 1998, 12 requests were  under review, and by June 2005, this number had increased to 29. In  addition, the average review time for TAS requests approved as of 1998 was  12 months and the average review time for TAS requests approved between  1998 and June 2005 was 28 months. The average review time for the 29 TAS  requests pending as of June 2005 was about 63 months (or over 5 years).  Figure 4 shows the number of requests submitted and the number that  remained under review at the end of each year, from 1992 through June  2005.
According to EPA officials, 15 of the 29 TAS requests currently awaiting  approval require some type of action on the part of the tribe, such as  providing additional documentation on the tribe’s jurisdiction. The other 14  requests are awaiting EPA action, such as analysis and discussion with the  tribe, consideration of comments received, and final regional and  headquarters review.
section_title: Several Factors Cited for Delays in the TAS Approval Process
paragraphs: According to EPA officials, several factors contribute to lengthy TAS  reviews. First, both regional offices and headquarters often review the  requests. Regional offices have primary responsibility for reviewing and  approving TAS requests, but EPA headquarters may repeat the review to  ensure that the regional review fully addressed all legal requirements. EPA’s  policy is for headquarters to review the first TAS request received and  approved in each region under the Clean Water and Safe Drinking Water  Acts and to review all other TAS requests, that appear to be nationally  significant because, for example, of new legal issues. In this regard,  officials cited evolving Indian case law and complexities associated with  some jurisdictional issues as significant contributing factors to added  review time. In some cases, EPA officials explained, multiple reviews occur  because, for example, a tribe may assert jurisdiction over lands outside of  its recognized boundaries. These assertions have led to disagreements  among the states and tribes, contributing to delays in EPA’s review process.  Moreover, EPA has never disapproved a tribe’s TAS request. Rather than  disapprove a tribe’s request, EPA continues working with the tribe until it  meets all the eligibility requirements, which could contribute to delays.  EPA officials explained that to the extent possible, it conducts its regional  and headquarters reviews concurrently.
Second, EPA did not emphasize timely review of TAS requests for some of  the 20 cases we reviewed. For example:    In one case, 20 months after receiving a tribe’s TAS request, EPA asked  for necessary information on the tribe’s water bodies, water uses, and  land status. This information should have been included in the original  request and followed up on at the time. EPA provided a variety of  reasons for delays in this tribe’s review, including a lack of timely  communication between the tribe and EPA. Based on the problems  experienced in this case, EPA’s responsible regional office reported that  it has taken steps to increase its tribal outreach activities.
In another case, 23 months after receiving supportive comments from  governmental entities and over 1 year after regional counsel agreed that  the tribe met all the legal requirements, EPA continued to request  additional information regarding the tribe’s jurisdiction. According to  EPA officials, the agency inadvertently misfiled part of the tribe’s  application paperwork and was waiting for the tribe to provide a  replacement copy of the jurisdictional map so EPA could complete its  review.
Finally, in one case under review for more than 4 years, the tribe  amended its request in response to public comments. However, EPA  was still requesting basic documentation that should have been included  in the original request—2 years into the process. Furthermore, more  than 1 year before approving the tribe’s TAS request, EPA determined  that the request raised no nationally significant issues and stated that  the tribal boundaries were clear. EPA officials agreed that there was a  delay, but stated that they were not requesting basic documentation,  such as the tribal constitution and codes, for the first time after the case  had been in review for 2 years. Rather, the region had misplaced the  original information provided by the tribe, and EPA was requesting that  the tribe provide replacement copies of important information.
In addition, according to EPA and tribal officials, some of the delays during  the review process occurred because of turnover in tribal or EPA staffing.  Specifically, we were told that some tribes have experienced staff turnover  in their environmental departments that affected their capability to  administer the environmental program. For example, in one region, EPA  officials cited tribal turnover as a cause for delay in 3 of the 10 requests  under review. Furthermore, some tribal officials said that changes in their  leadership sometimes shift their priorities away from following through  with their TAS request. Finally, some EPA regional offices have  experienced staff turnover, which caused some delay in reviewing requests  because the new staff needed time to become acquainted with the tribes  and to establish a relationship. For example, in one regional office, officials  said that certain staff positions—those that deal directly with tribes—have  changed about every 2 years. According to tribal officials, changes in both  tribal and EPA regional staff have made it difficult to keep the continuity  that the tribes believe they need to successfully administer a federal  environmental program.
According to EPA headquarters officials, in response to renewed concerns  from tribes and within EPA, the agency has held management-level  discussions with its regions to determine the status of outstanding requests  and to determine how best to address the growing backlog. In October  2005, EPA headquarters officials stated that they had completed  discussions with its regions and was analyzing the results to determine  whether there are any systemic reasons for the lengthy review times.
section_title: Delays and Lack of Transparency in the TAS Process Have Discouraged TAS Requests in One State
paragraphs: Some tribal officials told us that they have not submitted TAS requests  because the process has become so lengthy. These officials, who  represented five tribes in one western state, have observed the delays that  other tribes in the state have experienced. They questioned the value of  spending time and resources for such a lengthy process.
Moreover, tribes cannot always determine the status of a particular request,  the aspect of the review that may be delaying its approval, or the length of  time it will take EPA to complete its review. This lack of transparency may  hinder a tribe’s understanding of what issues are delaying EPA’s approval  and what actions, if any, may be needed to address these issues. In one  case, the regional office approved the request and sent it to headquarters  for concurrence. While the request was in headquarters for about 2 years,  regional officials told us they could not determine the status of the request  and could not provide the tribe with adequate updates regarding their  request. Tribal officials said that, even when asked, EPA could not provide  the tribe with a comprehensive list of documents needed to complete the  review. The request was under review at the time we completed our  work—6 years after it was submitted.
section_title: Approvals for Program Authorization Often Do Not Meet Established Time Frames
paragraphs: As specified in the regulations for the Clean Water Act, a tribe must provide  appropriate notice to governmental entities and hold a public hearing to  discuss its proposed water quality standards. The standards may change in  response to hearing comments. Thirty days after the tribe approves the  proposed water quality standards, it must provide the regional office with a  transcript of the hearing, responses to comments, the tribal-approved  standards, and a certificate from a responsible legal authority documenting  that the water quality standards have been adopted in accordance with  tribal law. Following approval of a tribe’s TAS application, EPA’s guidelines  call for it to approve a tribe’s water quality standards within 60 days of the  tribe’s official submission of its water quality standards.
For the 18 cases we reviewed under the Clean Water Act, EPA met its 60- day requirement for approving water quality standards for 7 of the  submissions. However, it did not meet its requirement for the other 11  cases. Figure 5 shows the review times for the 18 tribes submitting water  quality standards from 1992 through June 2005. See appendix IV for the  details on the dates that tribes submitted their water quality standards and  EPA approved the standards.
As figure 5 shows, 11 of the reviews for water quality standards took 60  days or more, with 4 taking 1 year or more for approval.
section_title: EPA Provides a Variety of Grants to Help Tribes Manage Their Environmental Programs
paragraphs: For fiscal years 2002 through 2004, EPA provided Indian tribes about $360  million in grants for a broad range of environmental activities. Of this total,  1,343 grants totaling approximately $253 million went to 461 Indian tribes  under four major acts including the Indian General Assistance Program— which helps tribes develop their capacity to administer environmental  programs—and three environmental acts—the Clean Water, Safe Drinking  Water, and Clean Air Acts—which help tribes manage their environmental programs. Furthermore, during these three fiscal years, EPA awarded an  additional $106 million under other statutory authorities, including the  Toxic Substances Control Act, the National Environmental Education Act,  and the Comprehensive Environmental Response, Compensation, and  Liability Act. Half of the $360 million was distributed through two specific  programs:  (1) the Indian General Assistance Program to help tribes to plan,  develop, and establish environmental protection programs—approximately  $114 million and (2) the Clean Water Act to help tribes prevent, reduce, and  eliminate water pollution—approximately $66 million.
Funds provided under the Clean Water, Safe Drinking Water, and Clean Air  Acts may be used for such things as research, construction, and the  development of regulatory programs. However, according to EPA officials,  only a small part of the grant funds are used by tribes to apply for and  develop regulatory programs under the various statutes. Although some,  but not all, grants require TAS status, the standards of evidence EPA  requires for TAS for grants are not as stringent as the standards for TAS for  program authority. For example, the TAS grant decision is based on EPA’s  knowledge of the tribe and the tribe’s area of jurisdiction. These decisions  do not require EPA to seek comment from affected states and generally do  not require a public comment period.
Table 1 shows the amount of grant funding awarded under the Indian  General Assistance Program and the three environmental acts for fiscal  years 2002 through 2004.
In general, tribes initially apply for funding under EPA’s Indian General  Assistance Program before applying for funds under the agency’s  environmental programs. The Indian General Assistance Program provides  financial assistance to help tribes build capacity in order to administer their  environmental programs. The Indian General Assistance Program grant  does not require a tribe to have TAS status. The duration of these grants (up  to 4 years) provides tribes with a stable funding source, which is useful to  tribes without tax revenues. The tribes have used these grants to, for  example, hire, train, and maintain their own environmental experts, and to  plan, develop, and establish environmental protection programs.
Grants for some environmental programs, such as section 106 of the Clean  Water Act and section 1443 of the Safe Drinking Water Act, have special  provisions for TAS status. For example, EPA requires that tribes receive  TAS status for section 1443 grants, while EPA regulations provide that  tribes with TAS status contribute less in matching funds for section 106  grants. The four TAS criteria for grants are similar to those for program  authority under the three acts--specifically, a tribe must be federally  recognized, have a governing body carrying out substantial duties and  powers, have adequate jurisdiction, and have reasonable capabilities to  carry out the proposed activities. The primary difference between TAS for  grants and TAS for program authority is that EPA does not generally seek  public comments on tribal requests for grants. In addition, there is  generally no need to determine tribal regulatory jurisdiction for TAS  eligibility for grants.
To encourage tribes to apply for these funds, EPA provides fact sheets  about the various financial assistance programs, sends them grant  solicitations, and provides training to help them develop their grant  requests. Nearly all tribal requests are reviewed and funded at the regional  level.
section_title: Differences between Tribes and States over Environmental Issues Have Been Addressed in Various Ways
paragraphs: Since the three environmental acts were amended to allow tribes to receive  TAS status and to implement EPA programs, some tribes, states, and  municipalities have disagreed over tribal land boundaries and  environmental standards that may differ from state standards. However,  neither EPA nor any of the entities we contacted could identify the number  of disagreements that have arisen between tribes, states, and municipalities  over environmental issues. Generally, the disagreements have been  addressed through litigation, cooperative agreements, or legislation.
In terms of litigation, for example:  In City of Albuquerque v. Browner, the city challenged EPA's approval  of the Pueblo of Isleta’s water quality standards, which are more  stringent than New Mexico’s. The city asserted that EPA lacked the  authority under the Clean Water Act to either (1) approve tribal water  quality standards that are more stringent than required by the statute or  (2) require upstream users such as the city to comply with the standards  set by the Pueblo of Isleta, which is downstream from Albuquerque. A  federal appellate court upheld EPA’s authority to approve the Pueblo’s  standards. Among other things, the court noted that EPA is authorized  to require upstream dischargers to comply with downstream standards.
In Montana v. EPA, the state challenged EPA regulations allowing  tribes with TAS authority to issue water quality standards applicable to  all dischargers within a reservation, even those on land owned by  nonmembers of the tribe. Montana argued that the regulations permit  tribes to exercise authority over nonmembers that are broader than the  inherent tribal powers recognized by the Supreme Court as necessary to  self-governance. A federal appellate court held that EPA’s regulations  properly delineated the scope of inherent tribal authority. It noted that  the Supreme Court had held that a tribe could regulate the conduct of  nonmembers when that conduct threatens or has some direct effect on  the political integrity, the economic security, or the health or welfare of  the tribe. EPA had found that pollution of tribal water resources by  nontribal members posed such serious and substantial threats to tribal  health and welfare that tribal regulation was essential. In this case, the  court held that EPA’s regulations are a valid application of inherent  tribal authority over nonconsenting nonmembers.
Some tribes and states have addressed issues more collaboratively. For  example:  The Navajo Nation’s Environmental Protection Administration and the  Arizona Department of Environmental Quality entered into a  cooperative agreement in which, among other things, the state  recognizes the jurisdiction of the Navajo Environmental Protection  Administration over all lands within the Navajo Reservation and does  not assert authority over those lands. In addition, Arizona and the  Navajo Environmental Protection Administration agreed to share in the  cost of pilot projects, including in-kind contributions and technical  assistance. As a result of this collaborative effort, the tribe and state  have been able to, among other things, share staff for training and assist  one another with permit violations. In one instance, the tribe and the  state investigated and found several areas of potential contamination of  illegal petroleum leaks and spills. EPA ordered the company to stop its  illegal actions and prepare an environmental cleanup plan.
Many different parties, including tribal, federal, state, and local  environmental groups, collaborated in an air toxics study, begun in 1999,  to help assess the impacts of hazardous air pollutants in the Phoenix  metropolitan area. The study, which is still ongoing, will review the  status of air toxics studies nationally and identify potential approaches  that may be useful in the Phoenix area.
In some cases, EPA facilitates a resolution of disagreements between states  and tribes during the review process. In these cases, EPA works  collaboratively with the tribe to facilitate a resolution. For example, in one  case, after discussing its application with EPA, a tribe amended its TAS  submission by clarifying that it was not seeking approval to administer  Clean Water Act programs on a portion of an adjacent river where  jurisdictional issues had been raised and stated that it would continue its  efforts to work cooperatively with the affected parties.
Legislatively, a statute enacted in August 2005 addressed some of the  jurisdictional concerns in Oklahoma over TAS for program authority.   Specifically, to be approved for TAS, the law requires Indian tribes and the  state to enter into a cooperative agreement in which they agree to TAS  status and develop a plan to jointly administer program requirements. This  agreement is subject to the review and approval of EPA’s Administrator  after notice and an opportunity for a public hearing. The only tribe in  Oklahoma that currently has TAS status for administering programs is the  Pawnee Nation.
According to EPA officials, tribes and states have not used the dispute  resolution mechanism EPA established under the Clean Water Act in 1987  to address disagreements over water quality standards. Under this  mechanism, EPA can attempt to resolve disputes when, for example, (1)  differing water quality standards have been adopted pursuant to tribal and  state law and approved by EPA; (2) a reasonable effort to resolve the  dispute without EPA involvement has been made; and (3) a valid written  request for dispute resolution has been submitted by either the tribe or the  state. We could not determine why states and tribes have not used this  mechanism to resolve disagreements.
According to a U.S. Institute for Environmental Conflict Resolution official,  states and tribes have not used the Institute to resolve disagreements over  the Clean Water, Safe Drinking Water, or Clean Air Acts. Congress  established this institute in 1998 to help parties resolve environmental,  natural resource, and public lands conflicts. The U.S. Institute serves as  an impartial, nonpartisan entity that provides professional expertise,  services, and resources to all parties to a dispute. The U.S. Institute helps  parties determine (1) whether collaborative problem solving is appropriate  for specific environmental conflicts, (2) how and when to negotiate, and (3)  whether a third-party facilitator or mediator may be helpful in assisting  parties in their efforts to reach consensus or to resolve conflict. The U.S.  Institute also established the Native Dispute Resolution Network to  provide an alternative for American Indians, Alaska Natives, and Native  Hawaiians facing environmental conflicts. In commenting on a draft of this  report, EPA advised us that they had recently contacted the Institute for  assistance in discussions between tribal and state officials in Idaho on  revising a lake management plan.
section_title: Conclusion
paragraphs: We recognize that a tribe’s initial request for TAS may not include all  required documentation and that EPA’s analysis of critical components of  that request, such as the tribe’s jurisdiction over its land, water, and air,  may take some time. However, EPA has generally not laid out a written  strategy, including an estimated time frame, for the TAS review process.  Such a written strategy would help better focus EPA’s efforts and provide  greater transparency for the tribes, on the status of EPA’s review. We note  that EPA has established time frames for completing some of its TAS  processes, such as those for seeking public comment. We also note that,  without a written strategy, the average approval time for TAS requests has  increased from 12 months in 1998 to over 2 years as of June 2005.  Moreover, in some cases, neither EPA regional officials nor the tribe know  the status of the tribe’s TAS request. Without time frames or transparency  in the review process, Indian tribes may be discouraged from even applying  for TAS and program authority.
section_title: Recommendation for Executive Action
paragraphs: To better facilitate the timely review of tribal requests for TAS status for  program authorization and to increase the transparency of the process to  tribes, we recommend that the Administrator of EPA develop a written  strategy, including estimated time frames, for its tribal request review  process and for providing periodic updates to the tribes on the status of  their requests.
section_title: Agency Comments
paragraphs: We provided EPA with a draft of this report for its review and comment. In  commenting on the draft report, EPA agreed with our findings and  emphasized their commitment to carefully considering these issues. EPA  also provided technical comments, which we have incorporated into this  report as appropriate. Appendix V contains the full text of the agency’s  comments in a letter dated October 19, 2005.
We are sending copies of this report to appropriate congressional  committees; the Administrator, EPA; and other interested parties. In  addition, the report will be available at no charge on the GAO Web site at  http://www.gao.gov.
If you or your staff have any questions about this report, please contact me  at (202) 512-3841 or stephensonj@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. GAO staff who made major contributions to this report are  listed in appendix VI.
section_title: Objectives, Scope, and Methodology
paragraphs: The Chairman of the Senate Committee on Environment and Public Works  and the Chairman of the Senate Committee on Indian Affairs asked us to  report on (1) the extent to which the Environmental Protection Agency  (EPA) has followed its processes for reviewing and approving tribal  requests for treatment in the same manner as a state (TAS) and program  authorization under the Clean Water, the Safe Drinking Water, and the  Clean Air Acts, (2) EPA’s programs for funding tribes’ environmental  programs and the amount of dollars provided to tribes in fiscal years 2002  through 2004, and (3) types of disagreements that have occurred between  parties over EPA’s approval for granting tribes TAS status and program  authorization and the methods that have been used to address these  disagreements. Although our review focused primarily on the Clean Water  Act, we also reviewed EPA’s process for reviewing and approving tribal  requests under the Safe Drinking Water and Clean Air Acts. In addressing  these issues, we collected information through case file reviews and  interviews.
To determine the extent to which EPA followed its processes for reviewing  and approving TAS and program authorization requests, we reviewed EPA’s  statutory and regulatory authorities, and guidance. Based upon this review,  we developed a structured review guide for our case file reviews—a total of  20 reviews. We selected EPA’s regions 6 (Dallas), 9 (San Francisco), and 10  (Seattle) for our case file review because, collectively, these regions had 77  percent of all approved tribal requests for program authorization under the  three acts (20 of 26). These regions also had the largest number of  approvals for program authority—18 approvals under the Clean Water Act,  and 1 each under the Safe Drinking Water and Clean Air Acts. We reviewed  in detail EPA’s TAS and program authorization process under the Clean  Water Act because most activity has occurred under the act. We also  reviewed EPA’s process for reviewing and approving tribal requests under  the Safe Drinking Water and Clean Air Acts. Furthermore, we reviewed  data provided by EPA on another 12 TAS and/or program authority  approvals, bringing the total number of TAS approvals to 32. In reviewing  the case files, we ensured that documentation existed to fulfill the statutory  and regulatory requirements, compared length of reviews with statutory  deadlines, and examined the cause of delays. With EPA officials in  headquarters and in regions 6, 9, and 10, we used semistructured interviews  to obtain their understanding of the TAS and program authorization  processes under the three environmental acts. EPA also provided data on  the 57 tribes that had applied for TAS status and/or program authorization,  and the dates of request and approval (when applicable). We cross-checked  this information with the case file documents for the 20 cases we reviewed.  We also conducted interviews with selected officials from the Department  of the Interior’s Bureau of Indian Affairs, affected states, and  representatives of Indian tribes in Arizona, New Mexico, Oklahoma, and  Washington to discuss their knowledge of, and concerns about, EPA’s  processes for reviewing and approving tribal requests for TAS status and  program authorization.
To examine EPA’s programs for funding tribes, we obtained data from EPA’s  Integrated Grants Management System, a computer database used by the  agency to manage and report on information about grants, to determine the  number of federally recognized Indian tribes receiving funding for fiscal  years 2002 through 2004. Specifically, we analyzed information on the  number of grants and the dollars awarded under specific statutory  authorities for cases where the recipient type was listed as “Indian tribe.”  This recipient type only applies to grants awarded to federally recognized  tribes or intertribal consortia. According to EPA officials familiar with the  data, tribes that are not federally recognized can receive grants, however,  only federally recognized tribes are categorized as “Indian tribes” in the  data element “recipient type.” We assessed the reliability of EPA’s  Integrated Grants Management System data by (1) performing electronic  testing of required data elements, (2) reviewing existing information about  the data, including past GAO reports and workpapers on the system, and  (3) interviewing agency officials knowledgeable about the data. We  determined that the data were sufficiently reliable for the purposes of this  report. In addition, we reviewed and documented the various programs  available to Indian tribes under the Indian Environmental General  Assistance Program Act of 1992 and the Clean Water, Safe Drinking Water,  and Clean Air Acts for fiscal years 2002 through 2004; and EPA’s guidelines  for providing funding to tribes through these programs.
To examine the types of disagreements that have occurred between parties  over EPA’s approval for granting tribes TAS status and program  authorization and the methods that have been used to address these  disagreements, we reviewed EPA’s statutory and regulatory processes for  resolving disputes between different parties under the Clean Water Act.  Although the dispute resolution provision specified in the Clean Water Act  regulations has not been officially used, EPA staff provided us with other  examples of tribes and outside parties creating collaborative agreements  and resolving disputes. We also interviewed selected EPA, state, and tribal  officials. In addition, we interviewed an official from the U.S. Institute for  Environmental Conflict and Resolution to gain an understanding of the  entity’s objectives, roles, and responsibilities.
We performed our work between November 2004 and October 2005, in  accordance with generally accepted government auditing standards.
section_title: Tribal Entities and Dates Requests Were Submitted and Approved for TAS, as of June 2005
paragraphs: Time elapsed (months)
Confederated Tribes of the Chehalis Reservation  (WA)
Confederated Tribes of the Warm Springs  Reservation (OR)
Other tribal entities receiving TAS approval GAO  did not review in detail (12)
Mole Lake Band of the Lake Superior Tribe of  Chippewa Indians, Sokaogon Chippewa Community  (WI)
Assiniboine and Sioux Tribes of the Fort Peck Indian  Reservation (MT)
32.9 Time elapsed (months)
Confederated Salish and Kootenai Tribes of the  Flathead Reservation (MT)
The Navajo Nation’s TAS request was submitted under the Clean Air Act.
The Navajo Nation’s TAS request was submitted for the public water systems program under the Safe  Drinking Water Act.
section_title: TAS Requests under Review, as of June 2005
paragraphs: Time under review (months)
Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation (AZ)
Agua Caliente Band of Cahuilla Indians (CA)
Paiute-Shoshone Indians of the Bishop Community (CA)
Assiniboine-Sioux of Ft. Peck Indian Reservation (MT)
Salt River Pima-Maricopa Indian Community (AZ)
Three Affiliated Tribes of the Fort Berthold Reservation (ND)
Confederated Tribes and Bands of the Yakama Indian Nation (WA)
127.9 The Navajo Nation’s TAS request was submitted for the underground injection control program under  the Safe Drinking Water Act.
According to EPA, the Coeur D’Alene tribe was approved for TAS in August 2005.
section_title: Elapsed Time for EPA’s Approval of Tribes’ Water Quality Standards for 18 Clean Water Act Cases Reviewed
paragraphs: Elapsed time (days)
Confederated Tribes of the Chehalis Reservation (WA)
Confederated Tribes of the Warm Springs Reservation (OR)
section_title: Comments from the Environmental Protection Agency
section_title: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the individual named above, Ronald E. Maxon, Jr., Assistant  Director; Tyra DiPalma-Vigil; Chad Factor; Doreen Feldman; Richard  Johnson; Crystal Jones; Jeff Malcolm; Rebecca Shea; and Carol Herrnstadt  Shulman made key contributions to this report.