UNITED STATES ENVIRONMENTAL PROTECTION AGENCV
WASHINGTON. D.C. 20460
OFFICE OF
WATER
DEC 3 I 1991
MEMORANDUM
SUBJECT: Guidance on Water Quality Standards and 401 Certification
Programs Administered by Indian Tribes
FROM: Tudor Da vies, Director o^C**-^»C
Office of Science and Technology
TO: Water Management Division Directors
Regions I - X
PURPOSE
Section 518 of the Clean Water Act (CWA) authorized EPA to treat Indian
Tribes as States for the purposes of sections 303 and 401. This guidance provides
procedures for determining Tribal eligibility and supplements the final rule
"Amendments to the Water Quality Standards Regulation That Pertain to Standards
on Indian Reservations," published in the Federal Register on December 12, 1991.
To develop and administer a water quality standards program and 401
certification program, an Indian Tribe must submit an application for eligibility to be
"treated as a State." The attached checklist provides a simplified list of actions
required for EPA to determine this eligibility.
BACKGROUND
The 1987 amendments to the Clean Water Act (CWA) authorized the
Administrator to treat Indian Tribes as "States" for purposes of the provisions of the
Act identified under section 518(e), and required EPA to issue regulations to
implement this provision. Under these regulations, Indian Tribes may become eligible
for the section 303 water quality standards program and the section 401 certification
program. This regulation also establishes a mechanism to resolve unreasonable
consequences that may arise from Indian Tribes and States adopting differing water
quality standards on common bodies of water.
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TREATMENT OF INDIAN TRIBES AS STATES
Section 518 of the CWA requires that to be treated as a State a Tribe must: (1)
be Federally recognized; and (2) meet three broad eligibility criteria.
Federal Recognition
The Secretary of the Interior periodically publishes a list of Federally recognized
Tribes which can be used to determine which Tribes meet this requirement. If a Tribe
has only recently been "recognized," but does not appear in the Federal Register
listing of recognized Tribes, the Tribe should provide copies of the appropriate
documentation to EPA demonstrating recognition by the Secretary of the Interior.
Section 518 Eligibility Criteria
The three eligibility criteria under section 518 include:
"(1) the Indian Tribe has a governing body carrying out substantial
governmental duties and powers;
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(2) the functions to be exercised by the Indian Tribe pertain to the
management a-d protection of water resources which are held by an Indian Tribe,
held by the United States in trust for Indians, held by a member of an Indian Tribe if
such property interest is subject to a trust restriction on alienation, or otherwise within
the borders of an Indian reservation, and
(3) the Indian Tribe is reasonably expected to be capable, in the
Administrator's judgment, of carrying out the functions to be exercised in a manner
consistent with the terms and purposes of this Act and of all applicable regulations."
Tribes should respond to these criteria as follows:
(1) Substantial Duties and Powers
Each application for treatment as a State must be reviewed on a case-by-case
basis to determine if the Tribe exercises substantial governmental duties.
Examples of governmental duties and powers may include, but are not limited
to: the power to tax; the power of eminent domain; and police powers (i.e. the
power to provide for the public health, safety and general welfare of Tribal
members). Indian Tribes should provide a narrative statement and appropriate
documentation describing: (1) the form of Tribal government, including how
their governing body is organized; (2) the essential governmental functions
currently performed; and (3) the sources of authorities to perform these
functions. A summary listing of the Tribe's constitution or currently effective
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Tribal codes, ordinances, and/or Tribal resolutions, will generally satisfy item
#3, The EPA Regional Office, however, may request additional information or
documentation in reviewing each "treatment as a State" application.
(2) Tribal Authority
In most cases, we anticipate that a Tribe will have the necessary authority to
administer Clean Water Act programs within reservation boundaries. In order
to meet this section 518(e)(2) requirement, however, the Tribe should submit
a statement signed by the Tribal Attorney General, or equivalent official,
explaining the legal basis (including references to appropriate codes,
ordinances, maps, etc.) for the Tribe's regulatory authority over its water
resources.
Upon receipt of an adequate statement from the Tribe, EPA will notify (within
thirty days) all appropriate governmental entities (e.g., neighboring Tribes and
States) and provide information on the substance of, and basis for, the Tribe's
assertion of authority. This information should include that portion of a Tribe's
"treatment as a State" application which discusses its claim of authority and
identifies the areas over which the Tribe claims such authority. We recommend
that a map of the Tribal boundaries be submitted as a part of this review.
These agencies will have thirty days to comment on a Tribe's assertion of
authority over the water resources in question. Comments from these
governmental entities are limited only to a Tribe's assertion of authority over
the water resources held by the Tribe.
If during the review period the Tribe's authority over a particular water
resources is challenged, the Regional Administrator will consult with the
Department of Interior before making a determination as to the authority. The
Agency may also, as appropriate, work with the Tribe and the governmental
entity challenging the Tribe's assertion toward a cooperative resolution of the
challenge. After consultation with the Secretary of the Interior and in
consideration of other comments received, the Regional Administrator shall
determine whether the Tribe has adequately demonstrated that it meets the
requirements. .
(3) Tribal Capability
Once the Regional Administrator determines that a Tribe is Federally recognized
and carrying out substantial governmental duties and powers, he must also
determine that the Tribe is "reasonably expected to be capable" of carrying out
the functions to be exercised, either currently, or based on a plan to develop
the necessary capabilities in the future In describing the Tribe's capability to
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administer an effective water quality standards program, the applicant should
submit to the Regional Administrator the following information:
- A description of the Indian Tribe's previous management experience;
- A list of existing environmental or public health programs administered
by the Tribal governing body and copies of related Tribal laws, policies, and
regulations;
- A description of the entity (or entities) which exercise the executive,
legislative, and judicial functions of the Tribal government;
- A description of the existing, or proposed, agency of the Indian Tribe
which will assume primary responsibility for establishing, reviewing, implementing and
revising water quality standards;
- A description of the technical and administrative capabilities of the staff
to administer and manage an effective water quality standards program or a plan
which proposes how the Tribe will acquire additional administrative and technical
expertise. The plan must address how the Tribe will obtain the funds to acquire the
administrative and technical expertise; and
- Any additional documentation required by the Regional Administrator.
Where the Tribe has previously qualified for treatment as a State under a Clean
Water Act or Safe Drinking Water Act program, the Tribe need only provide the
required information which has not been submitted in a previous treatment as a State
application.
Treatment as a State Review Procedures
In reviewing "treatment as a State" submissions, EPA Regional Water
Management Division staff should first be certain that the application is complete (i.e.,
contains sufficient information to adequately respond to the eligibility criteria), and
that the Tribe submitting the application is included on the Department of Interior's
list of Federally recognized Tribes. In addition, it is recommended that the Regional
Counsel and the Regional Indian Affairs Coordinator be involved in reviewing each
submittal, with appropriate comments and concurrences. After the initial applications
are reviewed in Headquarters, the Regional Administrators will be responsible for
making the final determinations for a Tribe to be treated as a State for each program
involved.
Prior to approving the first "treatment as a State" application in each Region,
and for each program, the Agency's "Delegation of Authority" procedures require that
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Headquarters review and concur prior to approval. This requirement necessitates that
the Region forward the complete "treatment as a State" application, with Regional
comments and findings to the EPA Headquarters, Office of Water, Standards and
Applied Science Division (Attn: Patti Morris, WH-585). Headquarters program staff
will make every effort to review and concur on each application in a timely manner.
Headquarters' concurrence on the Region's first "treatment as a State" determination
will be from the Assistant Administrator for the Office of Water to the Regional
Administrator. The Headquarters' concurrence decision will be developed in
coordination with the Office of General Counsel and the Office of Wetlands, Oceans
and Watersheds. Again, this Headquarters review and concurrence requirement
applies only to the first "treatment as a State" application for each new program
submitted to EPA.
OVERSIGHT AND EVALUATION
EPA Regional Offices will review new or revised Tribal water quality standards
to determine whether those standards meet the requirements of the Clean Water Act.
If EPA disapproves a Tribe's water quality standards, or determines that a new or
revised water quality standard is necessary to meet the requirements of the Act, EPA
may promulgate water quality standards. EPA Regional Offices will also provide
technical guidance and assistance to the Tribe to help them carry out the requirements
of the program.
Following adoption of water quality standards, the Tribal Chairman, or his
designee, submits the officially adopted standards to the appropriate EPA Regional
Administrator for review. The Regional Administrator reviews the Tribe's standards
to determine compliance with the CWA and implementing regulations. The Regional
Administrator may approve or disapprove water quality standards based on that
review.
Where disputes between States and Indian Tribes arise as a result of differing
water quality standards on common bodies of water, the Regional Administrator will
be responsible for acting in accordance with the provisions of Section 131.7 of the
regulation.
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Attfctimtnt 1
INDIAN TRIBES
CHECKLIST FORrREATMENT AS A STA TE
FOR WA TER QUALITY STANDARDS AND 401 CERTIFICA TION
Treatment as a State Criteria
1. Federal Recognition
2. Substantial Duties and powers
3. Tribal Authority
Yes No
/s Tribe on DO/ Listing?
a. narrative statement or equivalent
b. constitution (summary)
c. organizational chart
d. list of codes & laws
a. TribalAG's Statement
b. Define Tribal Boundaries
(include map)
c. Staff (current/planned)
d. Management experience
e. Funding plan
EPA Responsibilities
1. Notify Government Entities within 30 days
2. Receipt of Government Entities within 30 days
3. Treatment as A State
Office of Regional Counsel
recommendations letter
Indian A flairs Coordinator
recommendation letter
WMDD or RA recommendation
letter
EPA Headquarters signoff
(for first action only)
Where the Tribe has previously qualified for treatment as a State under a Cfean Water Act or Safe
Drinking Water Act program, the Tribs need or.ly provide the required information which has not been
submitted in a previous treatment as a State application.
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