Thursday
February 11. 1993
Part IV
Environmental
Protection Agency
40 CFR Parts 232 and 233
Clean Water Act; Section 404 Tribal
Regulations; Rule •
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8172 Federal Register / Vol. 58. No. 27 / Thursday. February 11. 1993 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 222 and 233
[FHL-4121-21
BIN 2040-AB69
Clean Water Act; Section 404 Tribal
Regulations
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This rule amends the Section
404 State Program Regulations by
adding the procedures by which an
Indian Tribe may qualify for treatment
as a State in order to be eligible to
subsequently apply for assumption of
the dredge and fill permit program
under section 404 of the Clean Water
Act. and the Clean Water Act Section
404 Program Definitions and Permit
Exemptions by adding new definitions
for "Federal Indian reservation",
"Indian Tribe", and "States". This
regulation satisfies the statutory
provisions in section 518 of the Clean
Water Act with respect to the 404
program and, in part, sections 308 of
309 of the Clean Water Ac^r
EFFECTIVE DATE: The rule 'snail be
effective March IS. 1993.
ADDRESSES: The administrative record
for this rule may be inspected at 499
South Capitol Street. SW.. room 711.
Washington, DC
FOR FURTHER INFORMATION CONTACT:
Lori Williams, Wetlands Division
(A104FJ, Environmental Protection
Agency, 401M Street. SW.. Washington.
DC 20460. 202-260-5043.
SUPPLEMENTARY INFORMATION:
Information in this preamble is
organized as follows:
A. Background
B. Response to Public Comments
1. Treatment of Tribes as States
2. Other Comments
C. Changes in the Proposed Rule
D. Stato 404 Permit Program Approval
Requirements
E. Regulatory Impact Analysis
F.. Simplification of EPA Process for
Implementing Statutory Authority to
Treat Tribes as States
G. Paperwork Reduction Act
H. Regulatory Flexibility Act
A. Background
The over-all objective of the Clean
Water Act (CWA)-as amended is to
restore and maintain the chemical,
physical and biological integrity of the
Nation's water. The two national goals
the Act established in 1972 include: (1)
e discharge of pollutants
Into navigable waters and (2) achieving
an interim water quality level that
would protect fish, shellfish, and
wildlife while providing for recreation
in and on the water wherever attainable.
Since 1972. section 101(b) of the CWA
makes it national policy to recognize
and preserve the States' primary
responsibility to meet these goals. Over
the past 20 years, the Agency has
focused on developing standard
operating relationships with the States
and localities.
In 1972, Congress established the 404
permit program to regulate discharges of
dredged or fill material into waters of
the United States. Congress, in the 1977
Amendments to the Federal Water
Pollution Control Act (the Clean Water
Act), gave States the option of assuming
the 404 permit program in certain
waters of the State, subject to EPA
approval. If a State assumes this
responsibility, its jurisdiction includes
all waters within its border except: (1)
Those which are subject to the ebb and
Sow of the tide plus adjacent wetlands
and (2) waters which are presently used
or may be susceptible to use (through
reasonable improvement) to transport
interstate or foreign commerce plus
adjacent wetlands. The Corps of
Engineers retains jurisdiction over all
waters which States cannot assume.
The Act prescribes minimum
requirements which States must meet
before exercising their option to assume
the program and assigned program
approval and oversight responsibility to
EPA. On May 19,1980. EPA
promulgated regulations to establish
procedures and criteria for approval/
disapproval of 404 State programs and
for monitoring a State program after
program approval. In response to State
concerns about rigid mandatory
requirements, excessive paperwork
burdens, intrusive Federal oversight.
and general lack of flexibility, EPA
promulgated revised regulations on June
6,1988. These revisions provide the
States more flexibility in program
design and administration while still
meeting the requirements and objectives
of the Act. Once a Tribe is determined
to be qualified to be treated as a State,
the Tribe must meet the requirements
for an approvable program specified in
40 CFR Part 233.
Congress, through amendments to
both CWA in 1987 and the Safe .
Drinking Water Act (SDWA) in 1988.
has authorized EPA to treat Indian
Tribes as States under various .
provisions of these Acts. Amendments
to both statutes*required the Agency to
promulgate regulations that would
establish exactly how Tribes would be
treated as States. Specifically, the
February 4.1987 Amendments to CWA
added a new section 518, which
requires EPA to promulgate regulations
specifying how the Agency will treat
qualified Indian Tribes as States for the
purposes of, among others, the section
404 Dredge and Fill Program described
above, to the extent that EPA determines
such regulations are necessary to
implement section 518.
On November 29,1989, EPA proposed
amendments to the Section 404 State
Program Regulations in response to
CWA section 518 requirements (see 54
FR 49180). The proposal included an
amendment that would add procedures
by which an Indian Tribe could qualify
for treatment as a State for the purpose
of the Section 404 dredge and fill permit
program (and, as discussed below, for
purposes of sections 308 and 309 of the
CWA as they relate to section 404). The
proposal also included an amendment
to the section 404(b)(l) Guidelines for
specification of Disposal Sites for
Dredged or Fill Material by adding new
definitions for "Federal Indian
reservation", "Indian Tribe" and
"States". The public comment period
closed on January 29,1990. EPA
received a total of 20 comments on the
proposed rule.
Pursuant to CWA section 518, the
proposal was prepared in consultation
with States and Indian Tribes. The
proposal was developed with the
assistance of an informal work group
composed of representatives from
Indian Tribes, States, and EPA. In
addition, a national consultation
meeting involving States and Tribes was
held in Denver. Colorado in June of
1988 for the purpose of obtaining
additional comments. Finally, EPA
distributed a number of drafts of the
proposal to all States and tribes
(following a mailing list of federally
recognized Tribes obtained by the Office
of Water) for review and comment prior
to issuing the proposed rule.
. EPA believes that many of the
difficult issues were resolved during the
consultation period prior to proposal,
and that this explains why relatively
few comments were received on the
proposal and why relatively few
changes to the proposal were required
in preparing today's final rule. Another
reason is that EPA had previously
published similar procedures under
CWA section 518 for the section 106
> water quality management and planning
program (54 FR 14334; Apr. 11.1989).
Additional background information
was included in the preamble to the
proposed rulemaking. . ' .
Finally, EPA issued vary similar
regulations treating Tribes as States for
purposes of sections 303 and 401 of the
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FederaJ Register / Vol. 58. No. 27 / Thursday. February 11, 1993 / Rules and Regulations 8173
CWA (Water Quality Standards
program), which were also proposed on
September 22,1989. EPA received
similar comments on most issues.
Today's responses to comments echo
EPA's responses in that final rule. EPA
incorporates all of those responses into
today's administrative record by
reference, and has not repeated all of
them here.
B. Response to Public Comments
The response to public comments is
organized into two sections: (1)
Treatment of Tribes as States, and (2)
other comments. Comments discussed
within each of these sections has been
further categorized by topic.
1 Treatment of Tribes as States
Comments on the Authority
Requirements
q. The Scope of Inherent Tribal
Authority
Comment: The issue of whether and
how EPA should require Tribes to
demonstrate that they meet the
requirements of section 518(e)(2) of the
CWA, i.e., that they can demonstrate
authority to regulate the discharge of
dredged or fill material within the
boundaries of thaasreservations,
attracted significant comment.
Numerous commenters remarked on the
significance of the Supreme Court's
decision in Brendale versus
Confederated Tribes and Bands of the
Yakima Nation, 492 U.S. 408,109 S.Ct.
2994 (1989) for EPA's programs and
today's regulations, although there were
widely differing views of how to read
the decision. Several commenters .
asserted that Brendale clearly indicates
that an Indian Tribe may not enforce the
section 404 permit program against non-
members of the Tribe on non-Indian-
owned fee lands within the boundaries
of the reservation or that, at the very
least, the Tribe must include detailed
factual information that describes the
non-Indian lands the Tribe proposes to
regulate and the reasons supporting its
jurisdictional assertions.
By contrast, other commenters
asserted that Tribes invariably possess '"'
inherent authority to regulate all
reservation waters, and that EPA should
presume the existence of such authority
and not require Tribes to make any
specific factual showing. These
commenters asserted that such authority
over environmental matters was
recognized in Montana versus United
States. 450 U.S. 544 (1981), and not
diminished by.Brendale.
Response: EPA does not read the
holding in Brendale as preventing EPA
from recognizing Tribes as States for
purposes of regulating the discharge of
dredged or fill material on fee lands
within the reservation, even if section
518 is not an express delegation of
authority (an issue'discussed in detail '
below). In Brendale, both tha State of
Washington and the Yakima Nation
asserted authority to zone non-Indian
real estate developments on two parcels
within the Yakima reservation, one in
an area that was primarily Tribal, the
other in an area where much of the land
was owned in fee by non-members.
Although the Court analyzed the issues
and the appropriate interpretation of
Montana at considerable length the nine
members split 4:2:3 in reaching the
decision that the Tribe should have
exclusive zoning authority over
property in the Tribal area and the State
should have exclusive zoning authority
over non-Indian owned property in the
fee area. The decision reflects some
difficult issues in this area of the law
and, as the comments indicated, has
generated considerable controversy over
the extent of Tribal authority.
Given the lack of a majority rationale,
the primary significance of Brendale is
in its result, which was fully consistent
with Montana versus United States,
which previously had held that:
To be sura. Indian Tribes retain inherent
sovereign power to exercise some forms of
civil jurisdiction over non-Indians on their
reservations, even on non-Indian fee lands. A
tribe may regulate * * • the activities of
non-members who enter consensual
relationships with the Tribe or its members
through commercial dealing, contracts, leases
or other arrangements * " * A Tribe may
also retain inherent power to exercise civil
authority over the conduct of non-Indians on
fee lands within its reservation when that
conduct threatens or has some direct affect
on the political integrity, tha economic
security, or tha health or welfare of tha Tribe.
Montana. 450 U.S. at 565-566 (citations
omitted).
In Brendale, the Court applied this
test, finding Tribal authority over
activities that would threaten the health
1 and welfare of the Tribe. 492 U.S. at
443—44 (Stevens, J., writing for the
Court); id. at 449-50 (Blackmun, J.
concurring). Conversely, the Court
found no Tribal jurisdiction where the
proposed activities "would not threaten
the Tribe's* * * health or welfare." Id.
at 432 (White. J., writing for the Court).
The Agency therefore disagrees with
'commenters who argue that Brendale
somehow overrules Montana.
As further discussed below, EPA
agrees with certain commenters that
pending further judicial or
Congressional guidance on the extent to
which section 518 delegates additional .
authority to Tribes, the ultimate
decision regarding Tribal authority must
be made on a Tribe-by-Tribe basis and
has finalized the proposed process for
making those determinations. Thus.
EPA rejects the suggestion of other
commenters that EPA make a conclusive
statement regarding the extent of Tribal
jurisdiction over fee lands for all Tribes
and all waters or even a statement
regarding any particular reservation.
except in the context of an actual
treatment as a State application. This is
consistent with the approach the
Agency adopted under the Safe
Drinking Water Act, whan it determined
that it would not "automatically
assume," or adopt, in the first instance.
a rebuttabla presumption of Tribal
authority over all water within a
reservation that would operate even in
the absence of any factual evidence. See
53 FR 37396. 37399 (September 26,
1988). Nonetheless, EPA sees no reason
in light of Brendale to assume that
Tribes would be per se unable to
demonstrate authority over water
quality management on fee lands within
reservation borders. Rather, as discussed
below, EPA believes that as a general
matter there are substantial legal and
factual reasons to assume that Tribes
ordinarily have the legal authority to
regulate surface water quality within a
reservation.
In evaluating whether a Tribe has
authority to regulate a particular activity
on land owned in fee by non-members
but located within a reservation, EPA
will examine the Tribe's authority in
light of the language of section 518 and
evolving case law as reflected hi
Montana and Brendale. The extent of
such Tribal authority depends on the
effect of that activity on the Tribe. As
discussed above, in the absence of
contrary statutory policy; a Tribe may
regulate the activities of non-Indians on
fee lands within its reservation when
those activities threaten or have a direct
effect on the political integrity, the
economic security, or the health of'
welfare of the Tribe. Montana. 450 U.S.
at 565-66. However, in Brendale several
justices argued that for a Tribe to have
"a protectable interest" in an activity,
the activity's effect should be
"demonstrably serious." Brendale, 492
U.S. at 431 [White, J.). In addition, in a
more recent case involving Tribal -
criminal jurisdiction, a majority of the
Court indicated in dicta that a Tribe
may exercise civil authority "where the
exercise of Tribal authority is vital to
the maintenance-of Tribal integrity and
self-determination." Dura y. Reina, 110 •
S.Ct 2053,2061 (1990). See also
Brendale, 492 U.S. at 450 (Blackmun, f.)
(test for inherent Tribal authority
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Federal Raguter / Vol. 58. No. 27 / Thursday. February 11, J993 / Rules and Regulation
whethor activities "implicate a
significant Tribal Interest"): id at 462
(Blackmun. J.) (teat for inherent Tribal
authority whether exercise of authority
"fundamental to the political and
economic security of the Tribe").
As discussed above, the Supreme
Court, in recent cases, has explored
•several options to assure that the
impacts upon Tribes of the activities of
non-Indians on fee land, under the
Montana test, are more than de nun/mis.
although to date the Court has not
agreed, in a case on point, on any one
reformulation of the test In response to
this uncertainty, the Agency will apply,
as an interim operating rule, a
formulation of the standard that will
require a showing that the potential
impacts of regulated activities on the
Tribe are serious and substantial
The choice of an Agency operating
rule containing this standard is taken
solely as a matter of prudence La light
of judicial uncertainty and does not
reflect an Agency endorsement of this
standard perse. Moreover, as discussed
below, the Agency believes that the
activities regulated under the various
environmental statutes generally have
serious and substantial impacts on
human health.and welfarejjts a result.
the Agency believes thafTribes will
usually be able to meet the Agency's
operating rule, and that use of such a
rule by the Agency should not create an
improper burden of proof on Tribes or
create the administratively undesirable
result of checkerboarding reservations.
Whether a Tribe has jurisdiction over
activities by non-members will be
determined case-by-case, based on
factual findings. The determinations as
to whether the required effect is present
in a particular case depends on the
circumstances.
Nonetheless, the Agency may also
take into account the provisions of
environmental statutes, and any
legislative findings that the effects of the
activity are serious hi making a
generalized finding that Tribes ate likely
to possess sufficient inherent authority
to control reservation environmental
quality. See e.g. Keystone Bituminous
Coal Assoc. v, DcBenedictis, 480 U.S.
470,476-77 and notes 6, 7 (1987). As
a result, in making,the required factual
findings as to the impact of a water-
related activity on a particular Tribe, it
may not be necessary to develop an'
extensive and detailed record in each
case. The Agency may also rely on its
spedal expertise and practical
experience regarding the importance of
•water management, recognizing that
clean waterincluding important •
habitats (e.g., wetlands, bottom
sediments, spawning beds, etc.), is
absolutely crucial to the survival of
many Indian reservations.
The Agency believes that
Congressional enactment of the Clean
Water Act establishes a strong Federal
interest La effective management of
water quality. Indeed, the primary
objective of the CWA "is to restore and
maintain the chemical, physical, and
biological integrity of the Nation's
waters" (section 101(a)) and. to achieve
that objective, the Act establishes the
goal of eliminating all discharges of
pollutants, into the navigable waters of
the U.S. and attaining a level of water
quality which is fishable and
swimmable (section 101(a)(lH2)). Thus
the statute itself constitutes, in effect, a
legislative determination that activities
which affect surface water and
important habitat quality may have
serious and substantial impacts.
EPA also notes that, because of the
mobile nature of pollutants in surface
waters and the relatively small length/
size stream segments or other water
bodies on reservations, in would be
practically very difficult to separate out
the effects of water quality impairment
on non-Indian fee land within a
reservation from those on Tribal
portions. In other words, any
impairment that occurs on. or as a result
of, activities on non-Indian fee lands is
very likely to impair the water quality
of the Tribal lands. This also suggests
that the serious and substantial effects
of water quality impairment within the
non-Indian portions of a reservation are
very likely to affect the Tribal interest ha
water quality. EPA believes that a
"checkerboard" system of regulation.
whereby the Tribe and State split up
regulation of surface water quality on
the reservation, would ignore the
difficulties of assuring compliance with
the section 404 permit program when
two different sovereign entities are
regulating the same small stream
segments.
EPA also believes that Congress has
expressed a preference for Tribal
regulation of surface water quality to
assure compliance with the goals of the
CWA. This is confirmed by the text and
legislative history of section 518 itself.
The CWA establishes a policy of
recognizing, preserving, and protecting
the primary responsibilities and rights
of States to prevent, reduce, and
eliminate pollution, and to plan the .
development and use (including' . ~
restoration, preservation, and
enhancement) of land and water -
resources (section 10l(b)}. By extension,
the treatment of Indian Tribes as States
means that Tribes are to be primarily
responsible for tha protection of •
reservation water resources; As Senator
Burdick. floor manager of the 1987 CWA
Amendments, explained, the purpose of
section 518 was to "provide clean water
for the people of this Nation." 133 Cong
Rac. S1018 (daily ed. Jan. 21,1987).
This goal was to be accomplished, he
asserted, by giving Tribes file primary
authority to regulate practices which
may affect water quality on Indian
lands. Id,
In light of the Agency's statutory
responsibility for implementing the
environmental statutes, its
interpretations of the intent of Congress
in allowing for Tribal management of
the section 404 permit program within
the reservation are entitled to
substantial deference. Washington Dept.
of Ecology v. EPA, 752 F.2d 1465.1469
(9th Cir. 1985); see generally Chevron,
USA v. NRDC. 467 U.S. 837. 843-45
(1984).
The Agency also believes that the
effects of Tribal health and welfare
necessary to support Tribal regulation of
non-Indian activities on the reservation
may be easier to establish in the context
of water quality management than with
regard to zoning, which was at issue in
Brendale. There is a significant
distinction between land use planning
and water quality management. The
Supreme Court has explicitly
recognized such a distinction: "land
use planning in essence chooses
particular uses for the land;
•environmental regulation * * * does
not mandate particular uses of the land
but requires only that, however the land
is used, damage to the environment is.
kept within prescribed limits."
California Coastal Commission v.
Granite Rock Co.. 480 U.S. 572. S87
(1987). The Court has relied on this
distinction to support a finding that
States retain authority to carry out
environmental regulation even in' cases
where their ability to cany out general
land use regulation is preempted by
Federal law. Id. at 587-89.
Further, water quality management
serves the purpose of protecting public
health and safety, which is a core
governmental function, whose exercise
is critical to self-government The • •
special status of governmental- actions to
protect public health and safety is well
established.1 By contrast, the power to
zone can be exercised to achieve :
purposes which have little or no direct
nexus to public health and safety; See
e.g. Brendale, 492 U.S. at 420 n.S
(WhiteJ.) (listing broad range of ~
consequences of State zoning decision).
nine fucticM la the contsKt of Fifth
taking* l«w. Sm Ktyttaaf Bitumiamu Coal
Allocation t. DoBanedictb. 480 U.S. 470,491 nJW
(1967); Id. at 312. (Bflhnqulrt. CJ.. dl»«ntteg}. •
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Federal Register / Vol. 58. No. 27 / Thursday, February U. 1993 / Rules and Regulations 8175
Moreover, water pollution is by nature
highly mobile, freely migrating from one
local jurisdiction to another, sometimes
over large distances. By contrast, zoning
regulates the uses of particular
properties with impacts that are much
more likely to be contained within a
given local jurisdiction.
Operationally, EPA's generalized
findings regarding the relationship of
water quality to Tribal health and
welfare will affect the legal analysis of
a Tribal submission by, in effect,
supplementing the factual showing a
Tribe makes in applying for treatment as
a State. Thus a Tribal submission
meeting the requirements of § 233.61(c)
of this regulation will also need to make
a relatively simple showing of facts that
there are waters within the reservation
used by the Tribe or Tribal members.
(and thus that the Tribe or Tribal
members could be subject to exposure to
pollutants present in, or introduced
into, those waters) and that the waters
are subject to protection under the Clean
Water Act. The Tribe must also
explicitly assert that impairment of. such
waters by the activities of non-Indians,
would have a serious and substantial
effect on health and welfare of the Tribe.
Once the Tribe meets this initial burden,
EPA will, in light ofJjja facts presented
by the Tribe and the generalized
statutory and factual findings regarding
the importance of reservation water
quality discussed above, presume that
there has been an adequate showing of
Tribal jurisdiction on fee lands, unless
an appropriate governmental entity (e.g.,
and adjacent Tribe or State)
demonstrates a lack of jurisdiction on
the part of the Tribe.
The Agency recognizes that
jurisdictional disputes between Tribes
and States can be complex and difficult
and that it will, in some circumstances,
be forced to address such disputes.
However, EPA's ultimate responsibility
is protection of the environment In
view of the mobility of environmental
problems, and the interdependence of
various jurisdictions, it is imperative
that all affected sovereigns work
cooperatively for environmental
protection, rather than engage in
confrontations over jurisdiction.
b. The Effect of Section 313 on Tribal
Authority Over Non-Indian Activities
Comment. EPA has received letters
from three members of Congress.
Senator Simpson, Senator Baucus, and
Representative Morrison, regarding the
impact of Brendale on EPA's Indian
Policy and the development of
"treatment as a State" regulations fpr-
EPA water programs in light of the
legislative history of section 518. All
three commenters asserted that Congress
did not intend to expand the scope of
Tribal authority over non-Indians on the
reservation by the passage of section
sia. - •••• : ifc
Rap. Morrison asserted that he
inserted into the Congressional Record a
memorandum written by staff on the
House Committee on Interior and
Insular Affairs regarding section 518
(also inserted into the Congressional
Record by Senator Adams at 133 Cong.
Rec. S753-54 (daily ad. Jan. 14,1987))
solely to demonstrate that section 518
was not intended to expand Tribal water
quantity rights. 133 Cong. Rec. H184-85
(daily ed. Jan 8,1987). Rap. Morrison
disavowed other statements from that
memorandum which might support the
proposition that Congress intended to
authorize Tribal jurisdiction over non-
members on reservations. ("Indian
Tribes have the right to regulate lands
and other natural resources within the
reservation, including non-Indian
owned fee lands or resources." Id.
(emphasis added)). Rep. Morrison stated
his belief that Congress did not, by the
passage of section 518, expand the
scope of Tribal authority over non-
Indians. In light of this legislative
history, Rep. Morrison asserted that,
consistent with Brendale. EPA should
not allow Tribal regulation of non-
members on so-called "open"
reservations.
Senators Baucus and Simpson also
recommended that EPA consider the
legislative history of section 518(e) and
the Brendale decision and determine
not to allow Tribal regulation over non-
members on the reservation.
Finally, all three of these
Congressional commenters asserted that
the legislative history of section 518
clearly shows that it was not intended
to affect rights to water quantity under
State law. The concerns raised by these
Members of Congress echo other
comments discussed elsewhere in
today's notice. Several commenters
asserted that section 518(e)(2) should
not be read as an express grant of
Congressional authority to Indian Tribes
to regulate such fee lands, despite
indications in Brendale to the contrary.
By contrast. Senators McCain,
Burdick, and Inouye. expressed a view
that section 518(e) delegates Tribes
authority to regulate all waters within
reservation boundaries including those
on non-Indian fee 1«nri«. Some -_
commenters cited Brendale for this
proposition. The latter argument of
these commenters is based upon the
opinion of Justice White in Brendale.
Justice White indicates that certain *
statutes may delegate Federal authority
to Tribes, thereby providing a basis for
authority over all lands within a
reservation. As Justice White explained,
on the record in Brendale there could
be—
"ao contention * • * that Congress has
expressly delegated to the Yakima Nation the
power to zone fee lands of nonmemben of
the Tribe. Compare 18 U.S.C. 1151,1161
(1982 ed.. and Supp. V); 33 U.S.C. 1377 (a]
and (hl(l) (1982 ed.. Supp. V) (La., sections
518(e) and 518(h)(l) of the CWAl."
492 U.S. at 428 (1989) (White, J.)
(emphasis added). This language clearly
categorizes the two cited statutory
schemes as express delegations of
Federal authority. Thus, Justice White,
inter alia, cites the Clean Water Act as
an example of an explicit delegation of
authority over non-Indian activities to
Indian Tribes.
Response: EPA has fully considered
the Congressional comments and their
interpretation of the legislative history
of section 518. EPA must, of course,
consider contemporaneous legislative
history as it is written, and has been
cautioned not to rely on subsequent
Statements by Members of Congress.
Hazardous Waste Treatment Council v.
EPA, 886 F.2d 355 (DC Cir. 1989), cert.
denied. Ill S.Ct. 139 (1990).
EPA differs with the Congressional
commenters to the extent that they
suggest the legislative history of section
518 is clear and expresses an intent to
limit the scope of Tribal authority. EPA
notes that other legislative history might
be interpreted as evincing Congressional
intent to confer expanded Tribal
authority over non-Indians within the
reservation.
In particular, the following colloquy
between Senators Inouye and Burdick
on this issue is very relevant:
Mr. Inouye: • * • I am concerned about
section 518(e)(2). As I read that provision, it
enables qualified Indian Tribes to exercise
the same water quality regulation jurisdiction
with respect to water that traverses, borders,
or is otherwise located within their
reservations [paraphrasing section 518(h)(l)
and 18 U.S.C 1151(a)l that States have for
regulation of water outside Indian
reservations.^ my understanding of section
518(e) correct?
Mr. Burdick: Yes. The intent of the
conferees was to assure that Indian Tribes
would be able to exercise the same regulatory
jurisdiction over water quality matters with
regard to waters within Indian jurisdiction
that States have been exercising over their
water.
. 133 Cong. Rec. S1018 (daily ed. Jan. 21,
1987) (emphasis added). Senator
Inouye's statement could arguably
support-a reading that Congress
. intended to recognize Tribal authority
over all waters within the reservation,
including those managed fay non-
Indians. Mr. Burdick, a member of the
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3176 Federal Register
Conference Committee, agrees with
Senator Inouye's statement.
However, in EPA'a view this colloquy
is ambiguous and inconclusive. Senator
Burdick. in responding to Senator
Inouye, agrees that under section 518
Tribes may regulate waters only if they
are already "within Indian jurisdiction "
However. Senator Burdick was only
recognizing the status quo. i.e..
whatever is within Indian jurisdiction
may be regulated via section 518.
Senator Burdick's statement does not
clearly show that he—or the Congress as
a whole—intended to legislate that all
waters within the reservation are in fact
"within Indian jurisdiction." Thus, the
colloquy is circular. Indiana have
jurisdiction if. but only if. they have
jurisdiction from some source other
than section 518. It does not dearly
indicate whether Congress intended to
expand what lies "within Indian
jurisdiction."
Further, if this colloquy were to be
construed as supporting an expansion of
Tribal authority, it would arguably
conflict with a statement Senator
Burdick had made earlier in response to
an inquiry from Senator Baucus. In that
discussion. Senator Burdick reiterated
that section 518 was not intended to
affect existing water quantity rights, and
added that "/p/rivateApnds and water
rights owners withiirDoundaries of
'Indian reservations are not to be
additionally affected by this act" 133
Cong. Rec. S753 (daily ed. Jan. 14.1987)
(emphasis added). This could suggest
that the Act was not intended to alter
the status quo regarding regulatory
authority over these lands.
The legislative history in the House is
also unclear as to whether Congress
Intended to expand Tribal power over
non-Indians. The statement in the
House staff memorandum dted above
supports a view that under current case
law Tribes already possess regulatory
authority over non-Indians within
reservation boundaries; thus it would be
unnecessary to delegate such authority
to Tribes. Insertion of this memorandum
into the Congressional Record could
suggest that the House agreed with that
view; however, this aspect of the
memorandum was never the subject of
House discussions, which focused
almost exdusively on issues relating to
water rights.
EPA believes that if Congress had
intended to make a change as important
as an expansion of Indian authority to
regulate non-members, it probably .
would have done so through statutory
language and discussed the change in
the committee reports; Given that the'
legislative history ultimately is
ambiguous and inconclusive, EPA
February U. 1993 / Rule, and
believes that it should not find that the
statute expands or limits tha scope of
Tribal authority beyond that inherent in
the Tribe absent an express indication of
Congressional intent to do so. See
Montana. 450 U.S. at 564. Therefore
EPA has dedded that it will, as
discussed above, continue to recognize
inherent Tribal civil regulatory
authority to the full extent permitted
under Federal Indian law, in light of
Montana, Brendale, and other
applicable case law.
EPA believes that Congress only
manifested an explidt intent to
authorize EPA to treat Indian Tribes as
States over any activities within tha
scope of Tribal authority hi light of tha
relevant principles of Federal Indian
law. EPA believes that this approach
will best effectuate tha overall purposes
of the statute.
EPA agrees with those commanters
who Stated that Justice White's opinion
in Brendale can be read to suggest a
contrary conclusion, and to indicate that
at least four justices of the Supreme
Court would apparently interpret
section 518(e) as expressly delegating to
Tribes the authority to regulate water
quality on reservations, induding those
affected by activities on non-Indian fee
lands. Nonetheless. EPA recognizes that
Justice White's opinion was not a
majority opinion of the Court and was
not necessary to the decision even of the
plurality that joined it since the issue
was not before the Court in Brendale.
Nor is there any discussion in the
opinion about the somewhat confusing
legislative history of section 518. The
passing reference in that opinion does
not finally resolve the question of
whether section S18(e) is a delegation of
authority, and, as discussed above, EPA
does not believe that it can make an
absolute determination that Congress in
feet expressed a clear intent on the
issue.
EPA agrees with the Congressional
commenters that section 518 does not
affect existing water quantity rights.
This has been the Agency's consistent
position, based on the language of
Sections 101(g) and 513(a).
for
^ —
have inherent authority unlea. Congas
rescinds that authority, to addition
these commenters stated, sinca section
518 specifically authorizes Tribal
authority, no such demonstration and
^S^^"18 d*?cumantation is needed.
Response: As discussed in detail
above, the Agency assumes that, in
f?anAi*-nl T«l»~_ i*t i ^^
C. Procedural Requirements for
Demonstrating Inherent Tribal
Authority
Comments Numerous comments
submitted before and after the proposed
rule was published have suggested that
the provisions (see §§ 233.81(b)(3) and
233.61(c)) requiring that Tribes submit a
copy of all documents which support
the-Tribe's assertion of authority is '
unnecessary, inappropriate, and flows
•from a misunderstanding of Indian, law.
These commenters argued that Tribes
8°im«u. i noes are ukaly to possess the
autaonty to regulate activities affectini?
water quality on the reservation. The
Agency does not believe, however, that
U would be appropriate to recognize
Tnbal authority and approve treatment
as a State requests in die absence of
verifying[documentation. In addition. In
bght of the legislative history of section
518 the question of whether section
518(e) is an explicit delegation of
authority over non-Indians is not
resolved. Therefore. EPA does not
believe it is currently appropriate to
eliminate the requirement that Tribes
make an affirmative demonstration of
their regulatory authority. EPA will
authorize Tribes to exercise
responsibility for the section 404 permit
program once the Tribe shows that, in
light of the factual circumstances and
the generalized findings EPA has made
regarding reservation water quality, it
possesses the requisite authority
EPA would advise Tribes.ln their
Attorney-General Statement, to outline
all bases for concluding that the Tribe
has adequate authority. This can only
help EPA to make a proper
determination to treat the Tribe as a
State.
As stated in the preamble to the
proposal, where the Regional
Administrator condudes that a Tribe
has not adequately demonstrated its
authority with respect to an area in
dispute, then Tribal assumption of tha
section 404 permit program would be
restricted accordingly. If the authority in
dispute were focused on a limited area.
this would not necessarily delay the
Agency's decision to treat the Tribe as
a State far the non-disputed areas.
Comment: Numerous commenters
suggested that § 233.61(c). which
requires the Tribe to submit a map or
legal description of the area over which
the Indian Tribe asserts authority to
regulate water, should be amended to
require that fee lands and lands owned
by non-members and non-Indians be
shown on the map.
Response: No such amendment was
made to tha regulation. EPA believes
that in some cases, both States and
Tribes may want to identify the location
of fee lands on reservations. However.
EPA does not believe it is appropriate to
specifically require Tribes: to submit
such information in all cases. EPA also
believes, that in some cases States are
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t'ederai Register / Vol. 53, No. 27 / inursoay, r-'eoruary 11.
ames ana Keguiaaons
mare likely to have ready access to such
information than are Tribes. EPA further
believes that the regulation clearly
requires Tribes to identify the area over
which the Tribe asserts authority to
regulate water quality, and that
requiring an identification of fee lands
and lands owned by non-Indians in all
cases is unnecessary and unduly
burdensome. Finally, EPA notes that
§ 233.61(e) gives the Regional
Administrator the discretion to require
whatever additional information is
necessary to support a Tribal
application on a case-by-case basis.
d. Treatment as a-State for Off-
Reservation Waters Within Inherent
Tribal Authority
Comment: Several comments were
received regarding the geographic .scope
of programs authorized under section
518(e)(2). The provision authorizes EPA
to treat a Tribe as a State for water
resources which are held by an Indian
Tribe, held in trust for Indians, held by
a member of an Indian Tribe if such
property interest is subject to a trust
restriction on alienation, or otherwise
within the borders of an Indian
reservation. •
(emphasis added)
EPA has consistently read the phrase
"or otherwise within * * *" as a
separate category of waterresources and
also as a modifier of the preceding three
categories of water resources, thus
limiting the Tribe to acquiring treatment
as a State status for the four specified
categories of water resources within the
borders of die reservation.
Comments received suggested that
EPA should alter its reading of this
provision to allow Tribes to qualify for
treatment as a State over all water
resources within its jurisdiction. These
comments asserted that limiting Tribes
to water resources within the
reservation would prevent a Tribe from
obtaining treatment as a State status
over water resources outside the
reservation to which it has legitimate
jurisdictional claim. Examples cited
included traditional resources areas
(known as "usual and accustomed"
areas) outside reservation borders, and
all lands held in trust for Tribes by the
U.S. Government or held by individual
Indians that lie outside reservation
borders, lands in "Indian Country" (as
defined in 18 U.S.C. 1151) that lie
outside reservation borders and, hi
general, all water resources within the
territorial jurisdiction of the Tribe that
lie outside reservation borders. . ;
One commenter pointed out that often
such lands are subject to Tribal or •"
Federal jurisdiction and are thus beyond
the police power and regulatory
authority of die State in which they ara
located. This comment concluded that
failure to provide Tribe* with an
opportunity to obtain treatment as a
State status over such lands would
create "regulatory voids" in which
neither States nor Tribes have clear
authority. Several comments suggested
that resolving this Issue could be
accomplished simply by revising the
definition of Federal Indian Reservation
included in § 233.2.
In contrast, other commenters
asserted that EPA is correct in reading
the phrase "or otherwise within the
borders* * *" as a modifier of the
preceding three categories of water
resources. These commenters pointed
out" diat failure to do so would render
the statute nonsensical and contradict
Congressional intent. However, tiiese
commenters also asserted that EPA is
not correct in reading the phrase "or
otherwise within the borders * * *" as
a fourth category of water resources,
because to do so would render the three
previous clauses superfluous. These
commenters therefore conclude that
section 518(e)(2) should not be read as
audiorizing Tribes to regulate non-
Indian owned lands within the
boundaries of tfie reservation.
Response: Under today's rule. Tribes
are limited to obtaining treatment as a
State status for only water resources
within the borders of the reservation
over which they possess authority to
regulate the discharge of dredged or fill
material. The meaning of the term
•"reservation" must, of course, be
determined in light of statutory law and
with reference to relevant case law. EPA
considers trust lands formally set apart
for the use of Indians to be "within a
reservation" for purposes of section
518(e)(2), even if they have not been
formally designated as "reservations."
Oklahoma Tax Commission v. Citizen
Band Potawatomi Indian Tribe of
Oklahoma. Ill S.Ct 905, 910 (1991).
This means.it is the status and use of the
land that determines if it is to be .
considered "within the reservation"
rather than the label attached to it EPA
believes that it was the intent of
Congress to limit Tribes to obtaining
treatment as a State status to lands
' within the reservation. EPA bases this
conclusion, in part, on the definition of
"Indian Tribe" found in CWA section
518(h)(2). As discussed above. EPA also
does not believe that section 518(e)(2)
prevents EPA from recognizing Tribal
authority over non-Indian water
resources located within the reservation
if the Tribe can demonstrate the ' : -
requisite authority over such water
resources.
Comments an the Capability
Requirements
Comment: A variety of comments
were received concerning the general
issue of Tribal capability (§§ 233.60(d)
and 233.61(d)). Comments on this
question ranged from suggesting that
EPA should require no demonstration of
capability at all to making the capability
requirements stronger. Several
comments asserted that rejecting Tribes
based on capability will only heighten
unevenness of experience between
States and Tribes.
Response: EPA made no change in the
regulation. The provision is not unduly
burdensome and EPA intends to apply
similar procedures for Tribes qualifying
as States in all CWA programs. The
Clean Water Act establishes basic
requirements for a Tribe to meet in
order to qualify for treatment as a Stata.
Eliminating the requirement to
demonstrate capability would fail to
meet these statutory requirements. On
the other hand. EPA does recognize the
fact that for many Tribes the assumption
of various Clean Water Act programs is .
new. Information necessary for EPA to
make determinations of capability must
be balanced against the need to allow
Tribes to gain experience in CWA
programs. EPA believes that today's rule
provides that balance.
Comment: Comments were received
asserting that the rule should require, as
part of the demonstration of capability,
a demonstration of separation of powers
for executive, legislative, and judicial
functions, or at least describe how
bifurcation of Tribal regulatory and
proprietary roles will occur.
Response: EPA has not required
Tribes to demonstrate separation of
powers for purposes of treating Tribes as
States because such a demonstration is
not required fay the Clean Water Act.
EPA will, however, in the context of
deciding to authorize Tribal 404 permit
programs, ccasidar potential conflicts of
. interest where the Tribe would be in the
position of issuing a permit to a Tribal
entity.
Comment: Several comments were
received requesting that EPA clarify
how the Agency wm evaluate whether
the Tribe has a history of successful
managerial' performance of public health
or environmental programs, and clarify
how much detail is required in
describing a Tribe's history of
managerial experience (sea
§233.61(d)(l)). V -
<• Response:In evaluating Tribal- ••-'
experience in public health and
environmental programs, EPA will look
for indications that the Tribe has
participated in such programs, whether
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8178
Federal Register / VoL 58. No. 27 / Thursday. February 11. 1993 / Rules and Regulations
thu programs be those administered by
EPA. other Federal Agencies, or of
Tribal origin. For example, several
Tribes are known to have participated in
duveloping area-wide water
management plans or Tribal water
quality standards. EPA will also look for
evidence of historical budget allocations
dealing with public health or
environmental programs along with any
experience hi monitoring in related
programs. In general. EPA will look
favorably on Tribes which have
experience in managing environmental
programs, because such experience is an
Indicator of existing capability and
commitment to environmental
protection. In caost cases. EPA
anticipates that submission of a brief
narrative statement on this topic will be
sufficient.
Comments on the Procedure for
Reviewing Tribal Applications
Comment; Several comments were
received on the opportunity provided to
States to review Tribal assertions of
authority (see §233.82(c). Various
commenters believed this provision to
be inappropriate because, for example.
Tribes do not review State applications
for primacy, States have-already
Established their authority in their
primacy applications, and the review is
inconsistent with EPA's Indian policy
Other comments suggested that States
comment along with everyone else
during a general public comment
period.
.Response: The provision allowing
participation by other governmental •
entities in EPA's review of Tribal
authority does not imply that States or
Federal agencies (other than EPA) have
veto power over Tribal applications for
treatment as a State. Rather, the
procedure Is simply intended to identify
any competing jurisdictional f^atm and
thereby ensure that the Tribe has the
necessary authority to administer the
section 404 permit program. The
Agency will not rely solely on the
assertions of a commenter who
challenges the Tribe's assertion of
authority; EPA will make an
independent evaluation of the Tribal
showing and all available information.
In addition, the provision allowing
appropriate governmental entities to
co mment on Tribal assertions of
authority is not intended as a barrier to
Tribal program assumption. As stated in
the preamble to the proposed .
rulemaking, where disputes regarding
Tribal authority are focused on, a limited
area this will not necessarily delay the
Agency's decision to treat the Tribe as
a State for the non-disputed areas.
Comment: Several commenters
suggested that EPA should provide mora
definition regarding the "governmental
entities" which will be provided notice
and an opportunity to comment on the
Tribe's assertion of authority (see
§ 233.62(b). Ona commenter specifically
recommended that EPA notify the Army
Corps of Engineers of any Tribal
applications received.
response.-EPA defines the phrase
"governmental entities" as States.
Tribes, and other Federal entities
administering land located contiguous
to the reservation of the Tribe which is
applying for treatment as a State. Such
"governmental entities" will be
provided up to 30 days to comment on
Tribal assertions of authority.
Neighboring Tribes will be treated as
"governmental entities" regardless of
whether the neighboring Tribe is treated
as a State for purposes of section 404.
Where such governmental entities are
States, EPA intends to provide notice
and an opportunity to comment to the
most appropriate State contacts which
may include, for example, the Governor.
Attorney General, or the appropriate
environmental agency head. The rule
limits the Agency to only considering
comments from such "governmental
entities."
EPA recognizes that city and county
governments which may be subject to or
affected by a Tribal section 404 permit
program may also want to comment on
the Tribe's assertion of authority.
Although EPA believes that the
responsibility to coordinate with local
governments falls primarily upon the
State, the Agency wil! make an effort to
provide notice to local governments by
placing an announcement in
appropriate newspapers.. Since the rule
limits EPA to considering; comments
from governmental entities, such
newspaper announcements will advise
interested parties to direct comments on
Tribal authority to appropriate State '
governments.
The process of notifying States and
Tribes and consulting with the
. Department of the Interior, as delineated '
in this and other EPA regulations
implementing the Clean Water Act and
the Safe Drinking Water Act. was and is
intended merely to assist the Agency in
making its determination whether a
Tribe has adequate authority to justify
treatment as a State by EPA. Such
notification and consultation ' .
procedures were not and are not
intended to establish any form of
adjudication or arbitration process to
resolve differences between State and
Tribal governments. Rather, EPA has a
duty to determine whether a Tribe has
adequate authority, as defined by . •
Federal law and EPA policy, to carry out
the grant or program under
consideration. The notification and
consultation procedures assist EPA in
making this determination by providing
information and perspectives from the
points of view of neighboring Tribal and
State governments and the Federal
agency having extensive expertise La
Federal Indian law. For these same
reasons. EPA believes that formal
consultation with the Corpg of
Engineers on treatment as State
applications is probably unnecessary
However, once the Tribe qualifies for
treatment as a Stata under this
regulation and subsequently applies for
assumption of the section 404 dredge
and fill permit program EPA will
consult with the Corps of Engineers as
prescribed by regulations (See subpart
B—Program Approval).
Finally, EPA wishes to emphasize that
the procedure for commenting on Tribal
authority is only for the purposes of
determining whether the Tribe meets
the statutory criteria for treatment as a
State, not whether a Tribal 404 permit
program should be approved. The
existing procedures outlined in 40 CFR
233.15 will be followed. This will
ensure full public participation and
evaluation of Tribal authority before the
Tribe issues 404 permits in lieu of the
Corps.
Comment: It is unlawful to limit
public comment to just the Tribal
demonstration of authority. Section
233.62(c) should allow public review of
all four statutory criteria. Furthermore.
formal adjudicatory hearings should be
held to determine the scope of Tribal
jurisdiction before treating tha Tribe as
a State.
Response: CWA section 513 provides
EPA with the authority to determine
whether Indian Tribes are qualified to
be treated as 'States. The CW A does not
require EPA to provide for public
comment to Tribal applications. For
three of the criteria which Tribes must
meet, EPA believes that the Agency will
be able to make appropriate
determinations absent any public
comment. EPA believes that providing
for public comment on these three
criteria would unnecessarily complicate
and potentially delay the process. For
the authority criterion. EPA has
provided for a 3D day comment period
by appropriate governmental ontities
because the Agency believes that it will
be important to gather all available •
information regarding Tribal authority
.prior to maklng.a detenninatfcin. EPA
believes that providing for comment on
the authority criterion is appropriate
because this is th» only critarian which
outside comments might help to
-------
Federal Register / Vol. 58, No. 27 / Thursday, February 11, 1993 / Rules and Regulations 8179
address. Furthermore, as noted above,
this is only a preliminary determination
and does not eliminate the public
process that will occur before approval
of the Tribal 404 permit program. Thus. '
EPA believes that formal hearings are
unnecessary and would only delay the
process with.no benefit.
Comment: Several comments pointed
out that the proposal did not specify in
any detail the procedure by which EPA
will consult with the Secretary, of the
Interior in making a determination
concerning challenges to a Tribe's
assertion of authority (see §233.62(d). It
was suggested that the consultation
process should provide for notice and
opportunities for input (e.g., a hearing)
to affected Tribes and States.
Response: EPA did not make changes
to the proposed rule in response to these
comments. However, subsequent to
publishing the proposed rule EPA did
reach agreement with the Department of
the Interior regarding the procedures for
conducting such consultations. The
procedure established as the Secretary
of the Interior's designees the Associate
Solicitor, Division of Indian Affairs and
the Deputy to the Assistant Secretary—
Indian Affairs (Trust andEconomic
Development). EPA wiirforward a copy
of the application and any documents
asserting a competing or conflicting
claim of authority to such designees as
soon as possible. For most applications.
an EPA-DOI conference will be
scheduled from one to three weeks after
the date the Associate Solicitor receives
the application. Comments from the
Interior Department will be primarily a
discussion of the law applicable to the
issue to assist EPA in its own
deliberations..
Responsibility for legal advice to the
EPA Administrator or the otiier EPA
decision makers will remain with die
EPA General Counsel. EPA does not
believe that die consultation-process
with the Department of Interior should
involve notice and opportunities for
input by States and Tribes because such
parties are elsewhere provided
appropriate opportunities to participate
in EPA's review of Tribal authority.
Comment: Several comments
suggested that once EPA makes a
determination regarding a Tribal
application, EPA should provide notice'
of its decision to State, Tribal, end local
governments and all common tore on the
Tribal assertion of authority, and should
publish a list of Tribes treated as States
in the Federal Register.
Response: EPA will take all
reasonable means to advise interested
.parties of the decision reached regarding
challenges to Tribal assertions of
authority. At a minimum, written notice
will be provided to Statefs) and other
governmental entities that were sent
notice of the Tribal application.
Comment: One commenter requested .
that EPA provide a mechanism for
States or other entities to extend the 30-
day commentperiodin §233.62(c).
Response: fP A interprets this section
as giving die Regional Administrator
discretion to grant ouch a request
Nonetheless, given the preliminary
nature of die approval of a Tribal
application for treatment as a State. EPA
will generally not favor significant
extensions of time. ,
Comment: A number of comments
suggested that EPA specify a timeframe
or change the timeframe associated with
die various steps in die application
review procedure (§ 233.62).
With regard to die review of die
Tribe's assertion of autiiority (see
§ 233.62(c)), various comments
supported shortening the review period.
lengthening die review period, and also
adding a provision allowing an
extension to die review period.
With regard to final determinations
(see § 233.62(d)}. several comments
suggested that EPA should complete its
review and respond to Tribes within 60
days after receipt of an application.
Other comments suggested that EPA
should conduct a completeness review
within 30 days of receipt of a Tribal
application. In general, a number of
comments advocated some time limit
widiin which EPA would be required to
complete die review process.
Response: No timerrames hi die
review procedure were changed in the
regulation in response to comments.
The timeframes assigned are consistent
with regulations promulgated for other
EPA water programs. Because EPA has .
no reasonable way to predetermine how
complete initial applications for
treatment as a State might be. what
challenges might arise or how numerous
or complex die issues might be, the
Agency deems it inappropriate to
attempt to establish timeframes that may
not allow sufficient time for resolution.
Also, several of die comments appear to
be based on early experience witii die
"treatment as a State" process. EPA
believes diat as Tribes. States, and EPA
become more familiar with working
together on "treatment as a State"
procedures, die delays associated witii
approval of early applications will
cease. Thus. EPA believes it
unnecessary to establish additional
deadlines in die regulation.
Other Comments on Treatment of Tribes
as States
Comments: Several commenters
suggested that as part of die treatment
as a State process, EPA require Indian
Tribes to describe how tiley will protect
constitutional rights of non-Tribal
members hi issuance and enforcement
of 404 permits, that Tribes waive their
sovereign immunity, and provide for
voting rights for non-members.
Response: EPA notes that
constitutional rights of both Indians and
non-Indians exist without explicit
recognition hi a Federal regulation. The
regulation provides a mechanism for a
Tribe to demonstrate that it meets die
criteria of CWA section 518(e). EPA
believes it is inappropriate to consider
any other factors in light of die
preliminary nature of die approval of a
Tribe for treatment as a State. EPA may
consider such issues when reviewing an
application for Tribal program
assumption, although die Agency notes
that it generally would lack die
authority to mandate changes in die'
structure of a Tribal government in such
a situation.
Comment: EPA should make clear
that qualification for treatment as a State
under one program is not dispositive for
applications under other programs.
Response: That is die correct
interpretation of this rule. As discussed
previously, however, EPA expects tiiat
once a Tribe has qualified for one
program, die key step toward
assumption of other programs, hi most
cases, will be demonstrating appropriate
capability.
Comment: Ajwriety of comments
were received concerning die general
issue of die Tribe's criminal
enforcement authority. Comments
ranged from strong objection to die
proposed regulation witiiout an
amendment to die CWA, to specifically
State that criminal enforcement can be
waived, to support for die proposed
regulation as written.
Response: EPA provided a detailed .
rationale for die proposed enforcement
provision (§ 233.63) in die preamble to
die proposed regulation (See 54 FR
49181.2).
Since die comments raised no
significant new issues, much of that
discussion is merely repeated here.
As is die case for States, an Indian
Tribe must have its own legal
authorities to administer a program
under die CWA; EPA cannot delegate its
own authority. However, die Agency
considered whether die lack of
comprehensive criminal enforcement
autiiority would preclude Tribes from
applying for die National Pollution
Discharge Elimination System (section
401) and die Dredge and Fill Permit
programs (section 404) that currently
require such autiiority for an approvable
State program.
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8130 Federal Register / Vol. 58. No. 27 / Thursday, February 11. 1993 / Rules and Regulations
Soction 1451 of SDWA specifically
states that Indian Tribes are not required
to exercise criminal enforcement
jurisdiction for primary enforcement
responsibility. The CWA amendments.
however, do not include similar
language indicating criminal
enforcement authority over all
individuals on the reservation as a State
v.'here s»«h authority is currently
reqirfreu for State program assumption.
The Agency realizes that a
comprehensive criminal enforcement
requirement could raise substantial
impediments to Tribal assumption of
those CWA programs that require such
authorities of States. Federal law bars
Indian Tribes from criminally trying or
punishing non-Indians in the absence of
a treaty or other agreement to the
contrary. Oliphant v. Suquamish Indian
Tribe 435 U.S. 191 (1978). In addition,
the Federal'Indian Civil Rights Act
prohibits any Indian court or tribunal
from imposing any criminal fine greater
than 55.000 (25 U.S.C. 1302(7)).
The Agency believes that even though
Congress did not explicitly waive the
requirement under CWA, as under
SDWA. Congress nonetheless intended
Tribes to be able to obtain primacy
without demonstrating comprehensive
criminal enforcement authority. If EPA
were to infer that Congress, by failing to
insert language similar to that contained
in section 1451 of SDWA. intended not
to waive the criminal enforcement
requirement, EPA's reading would make
part of section 518 of CWA a nullity,
since absent further legislative action.
no Tribe would he able to assume a
program under 402 or 404 CWA. This
reading would contradict the apparent
intent of section 518 to allow Tribes to
assume all specified CWA programs
where they meet the 518(e).criteria.
Section 233.41 of the 404 State
Program Regulations (SPR) requires that
a State have criminal enforcement
authority to have an approvable 404
State program. This notice proposes to
amend the existing regulations so that
Tribes will not be required to exercise
comprehensive criminal enforcement
jurisdiction as a condition to assuming
the 404 program. Tribes would instead
be required to provide for the referral of
criminal enforcement matters when
Tribal enforcement'authority does not
exist (e.g., non-Indians or fines over
55,000) to EPA and/or the Corps as the
parties agree, in an appropriate and
timely manner. Such procedures must
he established hi a formal Memorandum
of Agreement (MOA) with the Regional'
Administrator and/or the appropriate
District Engineer(s) of the Corps. There
may be a single MOA among the Tribe,
EPA and the Corps; separate MOA's
between the Tribe and EPA and the
Tribe and the Corps; or only one MOA,
between the Tribe and EPA or ihe
Corps, If the parties so agrae. The
MOA(s)"used to satisfy this agreement
may. but do not have to be, the same as
those required in 40 CFR 233.13 and
233.14.
Thus, the lack of comprehensive
Tribal criminal enforcement authority
should not prevent a Tribe from having
an approvabla 404 State program.
Therefore we have made no change in
the regulation as proposed. However.
we did mova the provision for Tribal
criminal enforcement authority from
Subpart G Treatment of Indian Tribes as
States, (233.63) to Subpart E
Compliance Evaluation and
Enforcement and redesignated it
"233.41(f) Provision for Tribal criminal
enforcement authority."
Other Comments
Comments on Trust Responsibility
Comment: EPA received several
comments regarding its assertion that
the "Federal trust responsibility" owed
to Indian Tribes, as it applies to EPA
actions under the CWA, is defined by
the terms of the CWA.
Certain comments asserted that EPA
should explicitly clarify whether the
CWA defines any trust obligations to
Tribes and, if so, where and how that
obligation will be expressed. Other
commenters not only asked for
clarification, but asserted that EPA must
State that the Federal-Tribal trust
relationship "exists independently of
and informs EPA decision making"
concerning the CWA and State-Tribal
disputes. Still another comment asked
EPA to clarify that the proposed
regulations are not to be read as
modifying or abrogating EPA's trust
responsibility.
Response-. EPA recognizes the
responsibility owed by the Federal
government as trustees for the affairs of
Indian Tribes. However, the Agency
does not believe the trust responsibility
precludes EPA from playing an
impartial role in the dispute resolution
process.
Comments on Definitions Proposed'for
Sections 230.3 and 233.2
Comment EPA should change the
proposed definition of a Tribe in
.§§ 230.3 and 233.2 to mean any Indian
Tribe, band, group, or community
• recognized by the Secretary of the
Interior and exercising governmental
powers and functions over a Federal [(
Indian Reservation.
Response: No change was made. The
rule reflects the statutory definition.
However, we moved tha definitions of
"Federal Indian reservation," "Indian
Tribe," and "State" proposed for § 230.3
to § 232.2'Definitions—for consistency
with the placement of other section 404
program definitions.
Comments on Dispute Resolution
Comment: EPA should add a
mechanism for resolving disputes over
Tribal 404 permits similar to that
proposed for the section 303 program.
Response: Section 518(e) requires
EPA to provide a mechanism for the
resolution of any unreasonable
consequences that may arise as a result
of different water quality standards that
may be set fay States and Indian Tribes
located on common bodies of water.
Congress directed EPA to develop a
mechanism to resolve tha consequences
of States and Tribes setting different
water quality standards. Hence, EPA
included such a mechanism with the
regulations treating Tribes as States for
the water quality standards program.
The statute does not, however, require
issuance of a similar mechanism when
Tribes are treated as States for purposes
of any other CWA program, including
the permit programs under sections 402
and 404. Nor does the legislative history
of section 518 suggest that Congress
thought such a dispute resolution
mechanism would be necessary outside
of the water quality standards context.
Treating an Indian Tribe as a State for
purposes of the 404 program is
somewhat different than treating a Tribe
as a State for purposes of setting water
quality standards. Once a Tribe is
treated as a State for purposes of 404.
the Tribe must still apply for
authorization to issue 404 permits in.
lieu of the Corps of Engineers on the
reservation, following the procedures of
40 CFR 233.15. Those procedures allow
for public comment on the proposed
Tribal permit program approval, which
will allow States to raise any disputes
' regarding Tribal authority or other
concerns. Thus, a separate dispute
resolution mechanism would be
unnecessary. Once a Tribe is treated as
a State and subsequently submits its
standards for approval, EPA will not
solicit public comment on, nor re-
evaluate whether the Tribe has the
authority to adopt such standards.
In addition, if a Tribe subsequently .
assumes the 404 permit program.
approval of a Tribal 404 permit is .
unlikely to cause "disputes" between a
Tribe and a State which need to be
resolved beyond those disputes which
cannot be resolved by existing
mechanisms. If EPA determines that the
Tribe has an approvable permit program
under part 233, then, by definition.
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Federal Register / VoL 58. No. 27 / Thursday, February 11, 1993 / Roles and Regulations 8181
neither the Corps of Engineers nor the
State will be issuing 404 permits in
assumable waters in that reservation.
(Note that the Corps of Engineers does
retain the permitting authority in non-
assumable waters.) Thus, there is no
direct conflict with State authority to
issue permits off the reservation.
Furthermore, the decision of who will
issue 404 permits on the reservation
does not affect what water quality
standards must be met under that
permit. In other words, any water
quality standards set by either a Tribe or
a State adjacent to or downstream of the
reservation must be met in the 404
permit, whether that permit is issued by
the Tribe, the Corps of Engineers, or the
State. Any dispute over the terms of that
permit are reflected in a dispute over
the underlying water quality gtandaTHp,
which can be resolved by the existing
mechanism. In simplest terms, the
Indian 404 rule affects who is the
permitting authority, not the substance
of the permits.
For the above reasons a separate
dispute resolution mechanism is
therefore unnecessary. . ^
C. Changes in the Proposed Rule
As stated above, the only changes to
the proposed regulations were (1) to
move the provision flSr Tribal criminal
enforcement Part G, Treatment of Indian
Tribes as States, § 233.63 to Part E,
Compliance Evaluation and
Enforcement, and redesignated
§ 233.41(fJ and (2) to move, without
change the definitions of "Federal
Indian reservation," "Indian Tribe," and
"State" proposed for 230.3 to § 232.2
Definitions. Moving the provision for
Tribal criminal enforcement is
appropriate because a Tribe's criminal
enforcement authority and how to
handle criminal enforcement matters
will be determined when and if a Tribe
applies for assumption of the section
404 dredge and fill permit program ones
EPA has determined that the Tribe is
eligible to be treated as a State for the
section 404 permit program. The
definitions ware moved for consistency
with the placement of other section 404
definitions.
D. State 404 Permit Program Approval
Requirements
In response to comments. EPA wishes
to emphasize that Tribes which obtain
treatment as a state for purposes of
section 404 pursuant to today's rule
must further comply with the provisions
of part 233 to obtain authorization of its
404 permit program. EPA has made no
changes to these requirements with
respect to Tribes. Thus, a Tribe must
submit an application which satisfies
the requirements of § 233.10, including
submission of Memoranda of Agreement
with the EPA Administrator ana the
Secretary of the Army (§ 233.13-.14),
and submission of a Statement of the
Attorney General (or the Tribal
equivalent) which, inter alia, discusses
the basis 'for asserting jurisdiction on
Indian lands (§ 233.12(b)). EPA will
process these applications pursuant to
the procedures in § 233.15.
On August 9,1991. the
Administration announced a
comprehensive plan for the protection
of the Nation's wetlands. Included were
a number of actions to improve the
workability of the Clean Water Act
section 404 regulatory program, which
regulates the discharge of dredged or fill
material into wetlands. Among these
changes will be support for measures to
increase the role of States in the _
wetlands permitting process. When
such changes have been identified.
amendments to the section 404 State
Program Regulations (See 40 CFR 232-
233) and other applicable legal
authorities will be implemented, where
appropriate. The section 404 State
Program Regulations, modified in
accordance with the Administration's
wetlands protection program, will apply
to Indian Tribes qualifying for treatment
as a State under today's rule.
EPA wishes to clarify that under
today's final rule any Tribe which is
approved to be treated as a State for
purposes of section 404 will
automatically be eligible to be treated as
a State for purposes of section 309(a)(l),
which addresses Federal enforcement of
CWA permits issued by authorized
States. As discussed above, a Tribe
treated as a State for purposes of section
404 would subsequently be eligible to
apply to administer the 404 permit
program under the applicable
provisions of 40 CFR part 233. EPA
would assert the authority to enforce
any 404 permit issued by an Indian
Tribe treated as a State which had
obtained authorization under part 233.
The same is true for enforcement of a
permit issued by a Tribe treated as a
State for purposes of the NPDES permit
program. Thus, EPA does not need to
and does not plan to issue separate
regulations dealing with treatment as a
State for section 309.
In addition, any Tribe treated as a
State for purposes of the section 404
program will also automatically be
eligible to be treated as a State for
purposes of section 308 (inspection
authority) with respect to 404 permits
issued by the Tribe. The Agency has
adopted this approach for similar
reasons as section 309. Pursuant to the
requirements of section 404(h)(l)(B), the
existence of State inspection authority is
part of the 404 State permit program
authorization requirements, for which a
Tribe may apply once it is treated as a
State under section 404. See 40 CFR
233.40. EPA also does not plan to issue
separate regulations for treatment as a
State under section 308.
E. Regulatory Impact Analysis
Compliance With Executive Order
12291
Executive Order 12291 (46 FR13193,
February 9,1981) requires that a
regulatory agency determine whether a
new regulation will be "major" and, if
so, that a Regulatory Impact Analysis be
conducted. A major rule is defined as a
regulation which is likely to result in:
(1) An annual effect on the economy
of S100 million or more;
(2) A major increase in costs or prices
for consumers; individual industries;
Federal, State and local government
agencies; or geographic regions; or
(3) Significant adverse effect on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreign-
based enterprises, in domestic or export
markets.
As discussed earlier the purpose of
this rule is to amend the existing State
Program Regulations (part 233) by
adding the procedures by which an
Indian Tribe, if it chooses to apply, may
qualify for Treatment as a State in order
to be eligiblfljo subsequently apply for
assumption of the section 404 permit
program administered jointly by the
Corps of Engineers and EPA. The
provisions of part 233 for assumption
are not changed by this rule. Therefore,
the economic impact of this rule on
Indian Tribes is the cost associated with
the preparation of requests for a
determination of treatment as a State
under section 518(e) of the Clean Water
Act. The proposed rule was submitted
to the Office of Management and Budget
(OMB) for review as required by
Executive Order 12291. Any written
comments for OMB to EPA and any
response to these comments will be
available for public inspection from the
person listed at the beginning of this
notice. Since the rule has only minor
economic impacts it does not meet the
definition of a major rule. The Agency,
therefore, is not conducting a Regulatory
Impact Analysis.
F. Simplification of EPA Process for
Implementing Statutory Authority To
Treat Tribes as States
As discussed earlier, this rule was
originally proposed in November 1989.
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8182 Federal Register / Vol. 58. No. 27 /Thursday. February 11. 1993 / Rules and Regulations
The Agency had already completed all
of its internal reviews of this rule when.
on November 10.1992. EPA's Deputy
Administrator signed a memorandum
entitled "Simplification of EPA's
Process for Treating Tribes as States."
By that memorandum, the Agency
formally adopted a new policy for
simplifying the process for treating
Indian Tribes in the same manner in
which it treats States under several
statutes, including tha Clean Water Act.
EPA has decided to issue this rule as
final so that there will be no further
delays in allowing interested Tribes to
seek approval to operate the 404 permit
program. EPA recognizes, however, that
some changes to today's rule may be
necessary to implement fully its new
policy on treatment as a State
simplification. EPA plans to make
necessary changes to its treatment as a
State regulations across all of its
programs in the near future; it will make
any necessary changes to this regulation
at that time. In tha interim. EPA will
continue to work with. Tribes to ensure
that tha existing regulations do not pose
an unreasonable burden on Tribes
wishing to assume authority for the 404
permit program.
G. Paperwork Reduction Act
The information collectjpa
requirements containedin this rula hava
been approved by the Office of
Management and Budget (OMB) under
the provisions of tha Paperwork
Reduction Act. 44 U.S.C. 3S01 et seq.
and have been assigned OMB control
number 2040-0140.
Public reporting burden for this
collection of information is estimated to
be an average of 100 hours per
respondent including time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
of information.
Sand comments regarding the burden
estimate or any other aspect of this
collection of information, including :
suggestions for reducing this burden, to
Chief. Information Policy Branch. PM-
223Y, U.S. Environmental Protection
Agency. 401M Street, SW.. Washington.
DC 20460; and to tha Office of
Information and Regulatory Affairs,
Office of Management and Budget.
Washington. DC 20S03, marked
"Attention: Desk Officer for EPA."
K. Regulatory Flexibility Act' ] .
Under tha Regulatory Flexibility Act
(RFA), 5 U.S.C. 601 et seq., EPA must
prepare a Regulatory Flexibility
Analysis for all regulations that have a
significant impact pa a substantial
number of small entities. The RFA
recognizes three kinds of small entities
and defines them as follows:
—Small governmental jurisdictions—
any government of a district with a
population of less than 50,000.
—Small business—any business which
is independently owned and operated
and not dominant in its field as
defined by Small Business
Administration regulations under
section 3 of the Small Business Act.
—Small organization—any not-for-profit
enterprise that is independently
owned and operated and not
dominant in its field (e.g., private
hospitals and educational
institutions).
Using the above definition of small
entity. EPA has concluded that the final
regulation, as promulgated, will not
have a significant impact on a
substantial number of small entities.
and that a Regulatory Flexibility
Analysis is unnecessary. EPA has
reached this conclusion based on the
following considerations.
The final regulation will not have a
significant impact on a substantial
number of small governmental
organizations. Approximately 275
Indian Tribes are potentially eligible for
treatment as a State under the wetlands
program. While most Indian Tribes meet
the definition of small governmental
organizations provided above. EPA
believes the number of Tribes subject to
significant impacts as a result of thi?
proposed regulation will be a very small
fraction of the total that apply. EPA
considers the information required by
this rule to be the minimum necessary
to effectively treat Indian Tribes as
States for the purpose of the 404 permit
program.
The regulation will not have a
significant impact on a substantial
number of small businesses. Although it
is conceivable that an Indian Tribe
could impose additional requirements
upon a permit applicant than the Corps,
EPA believes that these situations wifl
be rare. Any additional economic
impact on the public resulting from
implementation of this regulation is
expected to be negligible, since Tribal
regulation of these activities is limited
•to areas within Tribal jurisdiction.
The regulation will not have a
significant impact on a substantial
number of small organizations for the
same reasons that the regulation will not
have a significant impact on a . ' '
substantial number of small businesses.
Accordingly, I certify that this final
regulation, as promulgated, will not - •
have a significant economic impact on
a substantial number of small entities.
List of Subjects
40 CFR part 232
Intergovernmental relations. Water
pollution control
40 CFR part 233
Administrative practice and
procedure. Intergovernmental relations
Penalties, Reporting and recordkeepinjj
requirements. Water pollution control.
Dated: January 13,1993.
William K. Reilly.
Administrator.
For the reasons set forth in the
preamble, parts 232 and'233 of title 40
of the Code of Federal Regulations are
amended as follows:
PART 232—«04 PROGRAM
DEFINITIONS; EXEMPT ACTIVmES
NOT REQUIRING 404 PERMITS
1. The authority citation for part 232
continues to read as follows:
Authority: 33 U.S.C 1344.
2. Section 232.2 is amended by
removing the paragraph designations
and adding, in alphabetical order, new
definitions for "Federal Indian
reservation," "Indian Tribe" and
"State" to read as follows:
S232J ttafCnftfofM.
» • • • « -
Federal Indian reservation means all
land within the limits of any Indian
reservation under the jurisdiction of the
United States Government.
notwithstanding the issuance of any
patent, and including rights-of-way
running through tha reservation.
• * ' * • . •
Indian Tribe means any Indian Tribe,
band, group, or community recognized
by the Secretary of the Interior and
exercising governmental authority over
a Federal Indian reservation.
• •••••
State means any of the 50 States, the
District of Columbia, Guam, the
Commonwealth of Puerto Rico, tha
Virgin Islands, American Samoa, the
Commonwealth of the Northern Mariana
Islands, the Trust Territory of the Pacific '
Islands, or an Indian Tribe as defined in
this part, which meet the requirements
of §233.60.
PART 233-H04 STATE PROGRAM
REGULATIONS :
-1. The authority citation for part 233
continues to read as follows: '-•<•.•' •
Authority: Cfeab Water Act. 33 U.S.C 1251
at seq.
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Federal Register / Vol. 58, No. 27 / Thursday, February 11. 1993 / Rules and Regulations 8183
Subpart A—General
2. Section 233.1 as amended by
revising paragraph (b) to read as follows:
f 233.1 Purpose and acope.
***•*
(b) Except as provided hi § 232.3. a
State program must regulate all
discharges of dredged or fill material
into waters regulated by the State under
section 404(gHl). Partial State
programs are not approvable under
section 404. A State's decision not to
assume existing Corps' general permits
does not constitute a partial program.
The discharges previously authorized by
general permit will be regulated by State
individual permits. However, in many
cases. States other than Indian Tribes
will lack authority to regulate activities
on Indian lands. This lack of authority
does not impair that State's ability to
obtain full program approval in
accordance with this part. i.e.. inability .
of a State which is not an Indian Tribe
to regulate activities on Indian lands.
. does not constitute a partial program.
The Secretary of the Army acting
through the Corps of Engineers will •
continue to administer the program on
Indian lands .if a State which is not an
Indian Tribe does not seek and have
authority to regulate activities on Indian
lands.
3. Section 233.2 is amended by
removing the paragraph designations
and adding, in alphabetical order, new
definitions for "Federal Indian
reservation." and "Indian Tribe" and by
revising the definition of "State" to read
as follows:
§233.2 Definition*.
Federal Indian reservation means all
land within the limits of any Indian
reservation under the jurisdiction of the
United States Government.
notwithstanding the issuance of any
patent, and including rights-of-way
running through the reservation.
Indian Tribe means any Indian Tribe.
band, group, or community recognized
by the Secretary of the Interior and
exercising governmental authority over
a Federal Indian reservation.
*****
State means any of the 50 States, the
District of Columbia, Guam, the
Commonwealth of Puerto Rico, the
Virgin Islands, American Samoa, the
Commonwealth of the Northern Mariana
Islands, the Trust Territory of the Pacific
Islands, or an Indian Tribe, as defined
in this part, which meet the
requirements of § 233.60. For purposes
of this part, the word State also includes
any interstate agency requesting
program approval or administering an
approved program. *
4. Section 233.41 is amended by
adding paragraph (f) to read as follows:
1233.41 Requirements for enforcement
authority.
(f) Provision for Tribal criminal
enforcement authority. To the extent
that an Indian Tribe does not assert or
is precluded from asserting criminal
enforcement authority (§ 233.41(a)(3) (ii)
and (iii)). the Federal government will
continue to exercise primary criminal
enforcement responsibility. The Tribe.
with the EPA Region and Corps
Districts) with jurisdiction, shall .
develop a system where the Tribal
agency will refer such a violation to the
Regional Administrator or the District •
Engineers), as agreed to by the parties.
in an appropriate and timely manner.
This agreement shall be incorporated
into joint or separate Memorandum of'
Agreement with the EPA Region and the
Corps District(s), as appropriate.
5. Part 233 is amended by
redesignating subpart G as subpart H.
redesignating § 233.60 as § 233.70; and
by adding a new subpart G consisting of
§§ 233.60 through 233.62 to read as
follows:
Subpart G—Treatment of Indian Tribes
as States
Sec.
233.60 Requirements for treatment as a
State.
233.61 Request by an Indian Tribe for a
determination of treatment as a State.
233.62 Procedure for processing an Indian
Tribe's application for treatment as State.
Subpart G—Treatment of Indian Tribes
as States
f 233.60 Requirements for treatment as a
State.
Section 518(e) of the CWA, 33 U.S.C.
1378(e), authorizes the Administrator to
treat an Indian Tribe as a State for
purposes of making the Tribe eligible to
apply for the 404 permit program under
section 404(g)(l) if it meets the
following criteria:
(a) The Indian Tribe is recognized by
the Secretary of the Interior.
(b) The Indian Tribe has a governing
body carrying out substantial
governmental duties and powers.
(c) The functions to be exercised by
the Indian Tribe pertain to the
management and protection of water
resources which are held by an Indian
Tribe, held by the Untied States in trust
for the Indians, held by a member of an
Indian Tribe if such property interest is
subject to a trust restriction an
alienation, or otherwise within the
borders of the Indian reservation.
(d) 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 die Act and applicable
regulations, of an effective section 404
dredge and fill permit program.
1233.61 Raqueat by en Indian Tribe for a
determination of treatment ac a State.
An Indian Tribe may apply to the
Regional Administrator for a
determination that it qualifies for
treatment as a State pursuant to section
518 of the Act. for purposes of the
section 404 program. The application
shall be concise and describe how the
Indian Tribe will meet each of the
requirements of § 233.60. The
application shall include the following
information:
(a) A statement that the Tribe is
recognized by the Secretary of the
Interior.
(b) A descriptive statement
demonstrating that the Tribal governing
body is currently carrying out
substantial governmental duties and
powers over a defined area. This
Statement shall:
(1) Describe the form of the Tribal
government.
(2) Describe the types of governmental
functions currently performed by the
Tribal governing body, such as. but not
limited to. the exercise of police power£
affecting (or relating to) the health,
safety, and welfare of the affected
population; taxation; and the exercise of
the power of eminent domain; and
(3) Identify the source of the Tribal
government's authority to carry out the
governmental functions currently being
performed.
(c)(l) A map or legal description of
the area over which the Indian Tribe
asserts regulatory authority pursuant to
section 518(e)(2) of the CWA and
§233.60(c);
(2) A statement by the Tribal Attorney
General (or equivalent official) which
describes the basis for the Tribe's
assertion under section 518(e)(2)
(including the nature or subject matter
of the asserted regulatory authority);
(3) A copy of all documents such as
Tribal constitutions, laws, charters,
executive orders, codes, ordinances.
and/or resolutions which support the
Tribe's assertion of regulatory authority;
(d) A narrative statement describing
the capability of the Indian Tribe to
administer an effective 404 permit
program. The Statement shall include:
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8184
Federal Register / Vol. 58. No. 27 / Thursday^February 11. 1993 / Rules and Regulations
(I) A description of the Indian Tribe's
previous management experience
Including, but not limited to. the
administration of programs and services
authorized by the Indian Self
Determination 4 Education Act (25
U.S.C. 450 er seq:). The Indian Mineral
Development Act (25 U.S.C 2101 et
serj.]. or the Indian Sanitation Facility
Construction Activity Act (42 U.S C
2004a).
(2) A list of existing environmental or
public health programs administered by
the Tribal governing body, and a copy
of related Tribal laws, regulations, and
policies;
(3) A description of the entity (or
entities) which exercise the executive,
legislative, and judicial functions of the
Tribal government
(4) A description of the existing, or
proposed, agency of the Indian Tribe
which will assume primary
responsibility for establishing and
administering a section 404 dredge and
fill permit program or 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.
(5) A description of the. technical and
administrative abilitio^Tbf the staff to
administer and manage an effective.
environmentally sound 404 dredge and
fill permit program.
(e) The Administrator may. at his
discretion, request further
documentation necessary to support a
Tribal request for treatment as a State.
(f) If the Administrator has previously
determined that a Tribe has met the
requirements for'"treatment as a State"
for programs authorized under the Safe
Drinking Water Act or the Clean Water
Act. then that Tribe need only provide
additional information unique to the
particular statute or program for which
the Tribe is seeking additional
authorization.
(Approved by the Office of Management and
Budget under control number 2040-0140)
S 233.62 Proc«dur«* for prooMafng an
Indian Trioo'* application for trMtnwnt M «
State.
(a) The Regional Administrator shall
process an application of an Indian
Tribe for treatment as a State submitted
pursuant to § 233.61 in a timely manner.
He shall promptly notify the Indian
Tribe of receipt of the application.
(b) Within 30 days after receipt of the
Indian Tribe's complete application for
treatment as a State, the Regional
Administrator shall notify all
appropriate governmental entities.
Notice shall include information on the
substance and basis for the Tribe's
assertion that it meets the requirements
ofS233.60(c).
(c) Each governmental entity so
notified by the Regional Administrator
shall have 30 days to comment upon the
Tribe's assertion under § 233.60(c).
Comments by governmental entities
shall be limited to the Tribe's assertion
under § 233.60(c).
(d) If a Tribe's assertion under
§ 233.60(c) is subject to a competing or
conflicting claim, the Regional
Administrator, after consultation with
the Secretary of the Interior, or his
designee, and in consideration of other
comments received, shall determine
whether the Tribe has adequately
demonstrated that it meets the
requirements of § 233.60(c) for the
dredge and fill permit program.
(e) If the Regional Administrator
determines that a Tribe meets the
requirements of § 233.61. the Indian
Tribe is then eligible to apply for 404
program assumption. ' •
(f) The Regional Administrator shall •
follow the procedures described in
§ 233.15 in processing a Tribe's request
to assume the 404 dredge and fill permit
program.
[FR Doc. 93-2699 Filed 2-10-93; 8:43 ami.
*U»0 CODE 4540-SD-M
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