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

Letter

Background

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.

EPA’s Approval Process for TAS and Program Authorization Was Generally Followed, but Some TAS Approvals Were Delayed by Lengthy Reviews

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.

EPA Followed Its Procedures for Reviewing and Approving Tribal Requests, except for Timely Notification to Affected Governmental Entities

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.

EPA’s Process for Approving TAS Requests Was Often Lengthy and Not Guided by Clear Time Frames

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.

Reviews for Pending TAS Requests Continue to Be Lengthy

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.

Several Factors Cited for Delays in the TAS Approval Process

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.

Delays and Lack of Transparency in the TAS Process Have Discouraged TAS Requests in One State

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.

Approvals for Program Authorization Often Do Not Meet Established Time Frames

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.

EPA Provides a Variety of Grants to Help Tribes Manage Their Environmental Programs

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.

Differences between Tribes and States over Environmental Issues Have Been Addressed in Various Ways

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.

Conclusion

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.

Recommendation for Executive Action

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.

Agency Comments

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.

Objectives, Scope, and Methodology

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.

Tribal Entities and Dates Requests Were Submitted and Approved for TAS, as of June 2005

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.

TAS Requests under Review, as of June 2005

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.

Elapsed Time for EPA’s Approval of Tribes’ Water Quality Standards for 18 Clean Water Act Cases Reviewed

Elapsed time (days)

Confederated Tribes of the Chehalis Reservation (WA)

Confederated Tribes of the Warm Springs Reservation (OR)

Comments from the Environmental Protection Agency

GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

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.