Office of Water
Tribal/State Meeting
On Indian Water Programs
Clean Water Act
Amendments of 1987
*
Safe Drinking Water Act
Amendments of 1986
June 28-29,1989
Embassy Suites Hotel
Denver, Colorado
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EPA
Office of Water
State/Tribal Meeting
On
Indian Water Programs
June 28 - 29,1989
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Agenda
June 28 - 29,1989
DAYl
8:30 - 8:45 Welcoming Remarks James Scherer
Regional Administrator
8:45 - 9:15 Opening Remarks Governor Verna Williamson
AG Duayne Woodard
R. Douglas Cooper
Spec. Assistto Admin. Reilly
Theme I: Status of OW Programs/Availability of Grants
9:15-11:00 SDWA Grants Don Olson, EPA
Construction Grants Chris Powers, EPA
106 Grants Tim Icke, EPA
Water Quality Standards Tim Icke, EPA .
Wetlands Gene Reetz, EPA
NPDES Gary Hudiburgh, EPA
11:00-11:15 Break
Theme II: Building Tribal Capability to Implement Water Programs
11:15 -12:15 Safe Drinking Water Act Capability
Regional Description Pat Crotty
Tribal Perspective Dr. Kate Vandemoer
12:15 -1:30 Lunch
1:30 - 3:00 Clean Water Act (Section 106) Capability
Regional Program Roger Frenette
Tribal Perspective Rick Schilf
State Perspective Dennis Fewless
General Counsel Perspective Dave Coursen
3:00 - 3:15 Break
3:15 - until done Open Microphone: An opportunity for anyone in attendance to make their views
known or ask questions on any aspect of EPA water programs.
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DAY 2
8:30 - 8:45 Setting the Stage for Day Two EPA Speaker
Theme III: Managing During Transition
8:45 -10:15 Regional Efforts Ken Kirkpatrick
State Involvement Kathleen Sisneros
Tribal Involvement Chester Fernando
10:15 -10:30 Break
Theme IV: Creative Programming/Resource Planning
10:30 -12:00 What Tribes are Doing/Comprehensive Planning
- Merv Tano
- John Hollowed
12:00 • 1:00 Lunch
Theme V: Building Partnerships
1:00 - 3:30 Developing Memorandum of Agreements
EPA Perspective - Bob Hargrove
Tribal Perspective - Harold Tarbell
State Perspective -BobBatson
Tribal Perspective - Billy Frank
State Perspective - Bob Turner
Effective Tribal/State Communications
- Lois Witty
3:30 - 3:45 Break
3:45 - 5:00 Open Microphone:
An opportunity for any one in attendance to make their views known or ask
questions on any aspect of EPA water programs.
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Guidelines for Speakers on Panel Topics
The following guidelines suggest issues for speakers to address at each panel.
Panel I:
Speakers:
Status of OW Programs/Availability of Grants
The Panel will discuss the status of the various regulations/guidance covering the array of
EPA Water Programs being extended to Indian Tribes.
All EPA Headquarters Speakers
Panel II & III:
Building Tribal Capability to Implement Programs under the Safe
Drinking Water and Clean Water Acts
The Panel will address the following questions:
Speakers: SDWA Panel:
CWA(§106):
L How is the application process working?
n. What can EPA do to assist Tribes in developing applications?
m. What are key elements that should be included in the application?
IV. What should the Tribe have in place for implementation (e.g., staff,
equipment, etc.)
V. What are the experiences and lessons learned so far?
PatCrotty
Kate Vandemoer
Roger Frenette
Rick Schilf
Dennis Fewless
Dave Coursen
(303) 564 -1408
(307) 332 - 3164
(303) 293 -1696
(701) 627 - 3627
(701) 224 - 2354
(202)382-5313
Panel IV:
Managing during Transition to Tribal Environmental Programs
Transition entails going from the situation that occurs today, where no Tribes have been extended EPA programs as
specified in the SDWA and CWA Indian regulations to a situation of coverage of Tribal lands by Tribal programs.
The panel will look at options that are available for Tribes to take on EPA programs. A Regional, State and Tribal
perspective will be offered focusing primarily on water quality standards and how the parties might work
cooperatively.
Speakers:
Ken Kirkpatrick
Kathleen Sisneros
Chester Fernando
(214) 255 - 7100
(505) 827 - 2792
(505)243-7616
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Panel V: Alternative Funding Options
«
The panel will focus on options Tribes may consider to enhance EPA grants. A Tribal perspective will be offered
on innovative ideas for raising new monies. In addition, a discussion on how comprehensive environmental planning
might help resources go further and whether the Tribes can cause EPA monies to be used cooperatively. Finally the
panel will discuss what other sources of Federal funding may be available to enhance EPA grants.
Speakers: Merv Tano (303) 861 - 0418
John Hollowed (206) 438 -1180
Panel VI: Building Partnerships
The panel will look at the Memorandum of Agreement that was recently signed between the St. Regis Mohawk Tribe
and EPA's Region n to develop a cross-media environmental program. The panel will also include a New York State
representative from the Governor's office to provide insight on ways that States can contribute to such Tribal efforts.
In addition, a Washington State representative and a member of the Northwest Indian Fisheries Commission will
discuess successful negotiations on various environmental issues between the State and Tribes. Finally, the panel
will look at ways through which Tribes and States have successfully collaborated on water resource issues and how
this can be applied to the water quality area.
Speakers: Bob Hargrove (212) 264 -1892
Harold Tarbell (518)358-2272
BobBatson (518)473-1026
Billy Frank (206)438-1180
Bob Turner (206) 753 - 6627
Lois Witty (303)866-3611
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OFFICE OF WATER TRIBAL/STATE MEETING
DENVER, COLORADO
JUNE 28-29,1989
BACKGROUND BOOK
Table of Contents
Meeting Agenda i
Table of Contents vii
I. OVERVIEW Section I
Introduction and Executive Summary 1-1
Statutes Governing Indian Tribes in Federal Water Programs 1-4
EPA Indian Tribes Policy 1-7
Proposed Preamble to EPA Water Program Regulations 1-12
II. OFFICE OF WATER (OW) PROGRAMS AND INDIAN TRIBES
PROVISIONS Section II
Programs Mandated by the Safe Drinking Water Act
Amendments of 1986
1. Public Water System (PWS) Program i: ....1
• Executive Summary
• Supporting Documents
2. Underground Injection Control (UIC) Program 2
• Executive Summary
• Supporting Documents
3. Wellhead Protection Program 3
• Executive Summary
• Supporting Documents
Programs Mandated by the Water Quality Act of 1987 (the
Clean Water Act Amendments)
4. Construction Grants Program: Program Management
Delegations and Indian Tribes Grant Set-aside 4
• Executive Summary
• Supporting Documents
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Programs Mandated by the Water Quality Act of 1987 (the
Clean Water Act Amendments) Continued
5. Water Quality Standards Program 5
• Executive Summary
• Supporting Documents
6. National Pollution Discharge Elimination System
(NPDES) Permit and Sludge Management Programs 6
• Executive Summary
• Supporting Documents
7. Water Quality Planning and Management Grant
Program (§106) 7
• Executive Summary
• Supporting Documents
8. Wetlands Protection Program 8
• Executive Summary
• Supporting Documents
III. APPENDICES Section HI
EPA Regional Indian Coordinators. m-1
EPA Office of Water Organization Charts: Headquarters and Regions ffl-2
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OFFICE OF WATER/INDIAN TRIBAL LANDS
MEETING, DENVER COLORADO
JUNE 28-29,1989
Amendments to the nation's two water acts — The Safe Drinking Water Act
in 1986 and the Clean Water Act in 1987 - require the U.S. Environmental
Protection Agency to facilitate the direct award of Federal assistance to Indian
Tribes.
EPA PROGRAMS ENCOURAGE LOCAL DECISIONMAKING BY
INDIAN TRIBES
These amendments are consistent with President Reagan's January 24, 1983
Federal Indian Policy Statement providing for treatment of Tribal
governments on a government to government basis and supporting the
principle of self-determination and local decision making by Indian Tribes.
EPA responded to the President's statement by developing a discussion paper
entitled "Administration of Environmental Programs on Indian Lands" in
July, 1983. The Agency later adopted a formal EPA Indian Policy Statement
and Implementation Guidance in November, 1984. The EPA policy is "to
give special consideration to Tribal interests in making Agency policy and to
ensure the close involvement of Tribal governments in making decisions
and managing environmental programs affecting reservation lands." In
practice, EPA's policy is to work directly with Tribal governments as
independent authorities for reservation affairs and not as political
subdivisions of States.
AGENCY REGULATIONS WILL CHANNEL FEDERAL ASSISTANCE
DIRECTLY TO INDIAN TRIBES FOR WATER PROGRAMS
EPA has responded to this Executive and Congressional mandate by
developing regulations in each of its eight major water programs to ensure
that Indian Tribes receive financial and technical assistance once they meet
eligibility requirements similar to those States must satisfy for program
delegation or aid.
The following programs are mandated by the Safe Drinking Water Act,
amended by Congress in 1986:
• The Public Water System (PWS) program to establish and maintain
drinking water standards [Section 1413];
• The Underground Injection Control (UIC) program to protect
groundwater by regulating the injection of fluids into the ground
[Sections 1422 and 1425]; and
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• The Wellhead Protection program (WHP) to protect aquifers from
contamination through controls of the area around public water
supply wells [Section 1428] and the Sole Source Aquifer
Demonstration (SSAD) program to assist in the development of a
program to protect critical aquifer protection areas within sole source
aquifers.
The remaining programs come under the jurisdiction of the Clean Water Act
(amended by the Water Quality Act of 1987). They are:
• The Construction Grants program to manage and build wastewater
treatment facilities. This program has two elements: the delegation of
program management to Indian Tribes and the availability of grants to
design and build wastewater treatment facilities [Title n];
• The Water Quality Standards program to develop and carry out water
quality standards for surface waters and the Certification program to
assure that Federal permits.do not violate State water quality standards
[Sections 303 and 401];
• The Permit program to regulate the discharge of wastes into surface
waters, known as the National Pollution Discharge Elimination
System (NPDES) program and the Sludge Management program to
provide guidelines on the use and disposal of sewage sludge [Sections
402 and 405];
• The Water Quality Planning and Management Grant program that
provides funds to perform a wide variety of water quality planning
and management activities, including: assessing critical water quality
problems, and developing management, programs for the control of
those problems. These programs might include establishing water
quality standards, issuing point source permits, and developing best
management practices for nonpoint sources of pollution. [Sections
106, 205(j), 314, and 319]; and
• The Wetlands Protection program to oversee dredge and fill activities
affecting wetlands [Section 404].
INDTAN TRIBES MUST MEET FOUR CRITERIA TO OPERATE
PROGRAMS AND QUALIFY FOR DIRECT FEDERAL ASSISTANCE
Language in both the Safe Drinking Water Act and the Water Quality Act
amendments identify four criteria that Indian Tribes must meet in order to
operate programs and qualify for direct Federal assistance. An Indian Tribe
qualifies if it is:
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Recognized by the Department of the Interior and exercise
governmental authority over Indian Lands;
Governed by a body carrying out substantial governmental duties and
powers;
Organized with functions to be carried out that pertain to the
management and protection of water resources within its borders or
overseen by its authority; and
Capable of carrying out the management and protection of water
resources in a manner consistent with the terms and purposes of the
Safe Drinking Water and Clean Water Acts and all of their regulations.
THIS BACKGROUND BOOK SUMMARIZES PROGRAM
REQUIREMENTS AND ASSISTANCE AVAILABLE TO INDIAN TRIBES
This Background Book summarizes EPA's initiatives to develop regulations
and guidance that authorize Indian Tribes to accept program responsibility
and financial and technical assistance for the eight drinking water and water
quality programs. The Book includes:
• This introduction;
• A section that includes executive summaries and supporting
documents for each of the programs with evolving or completely
developed Indian Tribes regulations and policies; and
• An appendix that includes explanatory and supplemental materials
about the Environmental Protection Agency, the Office of Water in
Headquarters and the Regions, and key program contacts.
Not all the programs have completely developed regulations. This
Background Book includes the latest and most complete materials available
from each program that explain the workings of the Agency's water programs
in terms of the Indian Tribe provisions.
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STATUES GOVERNING INDIAN TRIBES UNDER THE SAFE DRINKING WATER
ACT AMEMDMENTS OF 1986 AND THE WATER QUALITY ACT OF 1987
SAFE DRINKING WATER ACT AMENDEMNTS OF 1986
INDIAN TRIBES
Sec. 1451. (a) Subject to the provisions of subsection (b), the
Administrator-
(1) is authorized to treat Indian Tribes as States under this title,
(2) may delegate to such Tribes primary enforcement
responsibility for public water systems and for underground injection
control, and
(3) may provide such tribes grant and contract assistance to carry
out functions provided by this title.
(b)(1) The Administrator shall, within 18 months after the
enactment of the Safe Drinking Water Act Amendments of 1986,
promulgate final regulations specifying those provisions of this title for
which it is appropriate to treat Indian Tribes as States. Such treatment
shall be authorized only if:
(A) the Indian Tribe is recognized by the Secretary of
the Interior and has a governing body carrying out substantial
governmental duties and powers; .
(B) The functions to be exercised by the Indian Tribe
are with the area of the Tribal Government's jurisdiction; and in the
administrator's judgement, of carrying out the functions to be exercised
in a manner consistent with the terms and purposes of this title and of
all applicable regulations.
(2) For any provision of this title where treatment of Indian
Tribes as identical to States is inappropriate, administratively
infeasible or otherwise inconsistent with the purposes of this title, the
Administrator may include in the regulations promulgated under this
section, other means for administering such provisions in a manner that
will achieve the purpose of the provision. Nothing in this section shall
be construed to allow Indian Tribes to assume or maintain primary
enforcement responsibility for public water systems or for underground
injection control in a manner less protective of the health of persons
than such responsibility may assumed or maintained by a State. An
Indian tribe shall not be required to exercise criminal enforcement
jurisdiction for purposes of complying with the preceding sentence.
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WATER QUALITY ACT OF 1987 (CLEAN WATER ACT AMENDEMT)
SEC. 518 TRIBES.
(a) POLICY.-Nothing in this section shall be construed to affect the
application of section 101(g) of this Act, and all of the provisions of
this section shall be carried out in accordance with the provisions of
such section 101(g). Indian tribes shall be treated as States for
purposes of such section 101(g).
(b) ASSESSMENT OF SEWAGE TREATMENT NEEDS; REPORT.-The
Administrator, in cooperation with the Director of the Indian Health
Service, shall assess the need for sewage treatment works to serve
Indian tribes, the degree to which such needs will be met through funds
allotted to States under section 205 of this Act and priority lists under
section 216 of this Act, and any obstacles which prevent such needs
form being met. Not.later than one year after the date of the enactment
of this section, the Administrator shall submit a report to Congress on
the assessment under this subsection, along with recommendations
specifying (1) how the Administrator intends to provide assistance to
Indian tribes to develop waste treatment management plans and to
construct treatment works under this Act, and methods by which the
participation in the administration of programs under this Act by Indian
tribes can be maximized.
(c) RESERVATION OF FUNDS.-The Administrator shall reserve each
fiscal year beginning after September 30, 1986, before allotments to the
States under section 205(e), one-half of one percent of the sums
appropriated under section 207. Sums reserved under this subsection
shall be available only for grants for the development of waste
treatment management plans and for the construction of sewage
treatment works to serve Indian tribes.
(d) COOPERATIVE AGREEMENTS.-ln order to ensure the consistent
implementation of the-requirements of this Act, an Indian tribe and the
State or States in which the lands of such tribe are iocaied may enter
into a cooperative agreement, subject to the review and approval of the
of the Administrator, to jointly plan and administrator, to jointly plan
and administer the requirements of this Act.
(e) TREATMENT AS STATES.-The Administrator is authorized to
treat an Indian tribe as a State for purposes of title II and sections 104,
106, 303, 305, 308, 309, 314, 319, 401, 402, and 404, and 404 of this
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Act to the degree necessary to carry out the objectives of this section,
but only if-
(1) the Indian tribe has a governing body carrying out substantial
governmental duties and powers;
(2) 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 united States in trust for Indians, held by a
member of an Indian tribe if such property interest is subject to a trust
restriction on alienation, or otherwise within the borders of an Indian
reservation; and
(3) the Indian tribe is reasonably expected to be capable, in the
Administrator's judgement, of carrying out the functions to be exercised
in a manner consistent with the terms and purposes of this Act and of all
applicable regulations.
Such treatment as a State may include the direct provision of funds
reserved under subsection (c) to the governing bodies of Indian tribes,
and the determination of priorities by Indian tribes, where not
determined by the Administrator in cooperation with the Director of the
Indian Health Service. The Administrator, in cooperation with the
Director of the Indian Health Service, is authorized to make grants under
title II of this Act in an amount not to exceed 100 percent of the cost of
•a project. Not later than 18 months after the date of the enactment of
this section, the Administrator shall, in consultation with Indian tribes,
promulgate final regulations which specify how Indian tribes shall be
treated as States for purposes of this Act. The Administrator shall, in
promulgating such regulations, consult affected States sharing common
water bodies and provide a mechanism for the resolution of any
unreasonable consequences that may arise as a result of differing water
quality standards that may be set by States and Indian tribes located on
common bodies of water. Such mechanism shall provide for explicit
consideration of relevant factors including, but not limited to, the
effects of differing water quality permit requirements, on upstream and
downstream discharges, economic impacts and present and historical
uses and quality of the waters subject such standards. Such mechanism
should provide for the avoidance of such unreasonable consequences in a
manner consistent with the objective of this Act.
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(f) GRANTS FOR NONPOINT SOURCE PROGRAMS.-The Administrator
shall make grants to an Indian tribe under section 319 of this Act as
though such tribe was a State. Not more than one-third of one percent of
the amount appropriated for any fiscal year under section 319 may be
used to make grants under this subsection. In addition to the
requirements of section 319, an Indian tribe shall be required to meet
the requirements of paragraphs (1), (2), and (3) of subsection (d) of this
section in order to receive such a grant.
(g) ALASKA NATIVE ORGANIZATIONS.-No provision of this Act shall
be construed to _
(1) grant, enlarge, or diminish, or in any way affect the
scope of the governmental authority, if any, of any Alaska Native
organization, including any federally-recognized tribe, traditional
Alaska Native council, or Native council organized pursuant to the Act of
June 18, 1934 (48 Stat. 987), over lands or persons in Alaska;
(2) create or validate any assertion by such organization or
any form of governmental authority over lands or persons in Alaska; or
(3) in any way affect any assertion that Indian country, as
defined in section 1151 of title 18, United States Code, exists or does
not exist in Alaska.
(h) DEFINITIONS.- For purposes of this section, the term-
(1) "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;and
(2) "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.
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V UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHING*, ON. D.C. 20460
OFFICE OF
INDIAN POLICY EXTERNAL AFFA.RS
U.S. ENVIRONMENTAL PROTECTION AGENCY
Attached are two documents which were adopted by the Environmental
Protection Agency (EPA) on November 8, 1984, relating to Indian Tribes
and Federal programs for protection of reservation environments:
1) EPA Policy for the Administration of Environmental Programs on
Indian Reservations.
2) Indian Policy Implementation Guidance.
These documents lay the groundwork for EPA management of the Agency's
regulatory programs on reservation lands. The cornerstones of the Policy
and Guidance are the principles of Indian "self-government" and
" government-to-government11 relations between the Federal Government and
Tribal Governments. Through Implementation of the Policy, the Agency
hopes to realize the long-range objective of Including Tribal Governments
as partners 1n decision-making and program management on reservation lands,,
much as we do with State Governments off-reservation.
In the beginning, Implementation of the Policy will be slowly paced, as
the Agency will need to seek legislative authority 1n many areas and go
through a lengthy budget process before we can carry out the principles
of the Policy and directives of the Guidance In a comprehensive manner.
In the first year, however, we will begin to seek statutory changes/modify
regulations, and work on selected pilot programs. These pilot programs will
Investigate problems associated with Tribal regulation of water and air
quality and the handling and disposal .of hazardous materials on reservation
lands. The experience will help both EPA and the Tribes develop models for
dealing with these problems 1n the special legal and political context of
Indian reservations.
Environmental programming that will Involve Tribal Governments 1n the
Federal regulatory process on a significant scale 1s a new endeavor for EPA
and Tribes alike. To be successful, we will need cooperation and assistance
from all sectors and would welcome your on-going support.
If you have questions or need further Information, please contact
Leigh Price, National EPA Indian Coordinator, at (202) 382-5051.
.•
Attachment
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11/8/84
EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL
PROGRAMS ON INDIAN RESERVATIONS
INTRODUCTION
The President published a Federal Indian Policy on January 24, 1983,
supporting the primary role of Tribal Governments 1n natters affecting
American Indian reservations. That policy stressed two related themes:
(1) that the Federal Government will pursue the principle of Indian
"self-government" and (2) that it will work directly with Tribal
Governments on a "government-to-government" basis.
The Environmental Protection Agency (EPA) has previously Issued general
statements of policy which recognize the importance of Tribal Governments
in regulatory activities that Impact reservation environments. It is the
purpose of this statement to consolidate and expand on existing EPA Indian
Policy statements in a manner consistent with the overall Federal position
in support of Tribal "self-government" and "government-to-govemment" rela-
tions between Federal and Tribal Governments. This statement sets forth
the principles that will guide the Agency in dealing with Tribal Governments
and in responding to the problems of environmental management on American
Indian reservations 1n order to protect human health and the environment.
The Policy is intended to provide guidance for EPA program managers In the
conduct of the Agency's congressionally mandated responsibilities. As
such, it applies to EPA only and does not articulate policy for other
Agencies in the conduct of their respective responsibilities.
It is Important to emphasize that,the Implementation of regulatory
programs which will realize these principles on Indian Reservations cannot
be accomplished Immediately. Effective Implementation will take careful
and conscientious work by EPA, the Tribes and many others. In many cases.
it will require changes In applicable statutory authorities and regulations.
It will be necessary to proceed 1n a carefully phased way, to learn from
successes and failures, and to gain experience. Nonetheless, by beginning
work on the priority problems that exist now and continuing In the direction
established under these principles, over tine we can significantly enhance
environmental quality on reservation lands.
POLICY
In carrying out our responsibilities on Indian-- reservations, the
fundamental objective of the Environmental Protection Agency is to protect
human health and the environment. The keynote of this effort will be to
give special consideration to Tribal Interests in making Agency policy,
and to Insure the close Involvement of Tribal Governments in making
decisions and managing environmental programs affecting reservation "Urvds.
To meet this objective, the Agency «ill pursue the following principles:
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1. THE AGENCY STANDS READY TO WORK DIRECTLY WITH INDIAN TRIBAL GOVERNMENTS
ON A ONE-TO-ONE BASIS (THE "GOVERNMENT-TO-GOVERNMENT11 RELATIONSHIP), RATHER
THAN AS SUBDIVISIONS OF OTHER GOVERNMENTS.
EPA recognizes Tribal Governments as sovereign entitles with primary
authority and responsibility for the reservation populace. Accordingly,
EPA will work directly with Tribal Governments as the Independent authority
for reservation affairs, and not as political subdivisions of States or
other governmental units.
2. THE AGENCY WILL RECOGNIZE TRIBAL GOVERNMENTS AS THE PRIMARY PARTIES
FOR SETTING STANDARDS, MAKING ENVIRONMENTAL POLICY DECISIONS AND MANAGING
PROGRAMS FOR RESERVATIONS, CONSISTENT WITH AGENCY STANDARDS AND REGULATIONS.
In keeping with the principle of Indian self-government, the Agency
will view Tribal Governments as the appropriate non-Federal parties for
making decisions and carrying out program responsibilities affecting
Indian reservations, their environments, and the health and welfare of
the reservation populace. Just as EPA's deliberations and activities have
traditionally involved the Interests and/or participation of State Govern-
ments, EPA will look directly to Tribal Governments to play this lead role
for matters affecting reservation environments.
3. THE AGENCY WILL TAKE AFFIRMATIVE STEPS TO ENCOURAGE AND ASSIST
TRIBES IN. ASSUMING REGULATORY AND PROGRAM MANAGEMENT RESPONSIBILITIES
FOR RESERVATION LANDS.
The Agency will assist Interested Tribal Governments 1n developing
programs and In preparing to assume regulatory and program management
responsibilities for reservation lands. Within the constraints of EPA's
authority and resources, this aid will Include providing grants and other
assistance to Tribes similar to that we provide State Governments. The
Agency will encourage Tribes to assume delegable responsibilities, (I.e.
responsibilities which the Agency has traditionally delegated to State
Governments for non-reservation lands) under terms similar to those
governing delegations to States.
Until Tribal Governments are willing and able to assume full responsi-
bility for delegable programs, the Agency will retain responsibility
for managing programs for reservations (unless the State has an express
grant of jurisdiction from Congress sufficient to support delegation to
the State Government). Where EPA retains such responsibility, the Agency
will encourage the Tribe to participate 1n policy-making and to assume
appropriate lesser or partial roles 1n the management of reservation
programs.
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4. THE AGENCY WILL TAKE APPROPRIATE STEPS TO REMOVE EXISTING LEGAL AND
PROCEDURAL IMPEDIMENTS TO WORKING DIRECTLY AND EFFECTIVELY WITH TRIBAL
GOVERNMENTS ON RESERVATION PROGRAMS.
A number of serious constraints and uncertainties 1n the language
of our statutes and regulations have limited our ability to work directly
and effectively with Tribal Governments on reservation problems. As
Impediments In our procedures, regulations or statutes are Identified
which limit our ability to work effectively with Tribes consistent with
this Policy, we will seek to remove those Impediments.
5. THE AGENCY, IN KEEPING WITH THE FEDERAL TRUST RESPONSIBILITY, WILL
ASSURE THAT TRIBAL CONCERNS AND INTERESTS ARE CONSIDERED WHENEVER EPA'S
ACTIONS AND/OR DECISIONS MAY AFFECT RESERVATION ENVIRONMENTS.
EPA recognizes that a trust responsibility derives from the his-
torical relationship between the Federal Government and Indian Tribes
as expressed in certain treaties and Federal Indian Law. In keeping
with that trust responsibility, the Agency will endeavor to protect
the environmental Interests of Indian Tribes when carrying out Its
responsibilities that may affect the reservations.
6. THE AGENCY WILL ENCOURAGE COOPERATION BETWEEN TRIBAL, STATE AND
LOCAL GOVERNMENTS TO RESOLVE ENVIRONMENTAL PROBLEMS OF MUTUAL CONCERN.
Sound environmental planning and management require the cooperation
and mutual consideration of. neighboring ' governments, whether those
governments be neighboring States, Tribes, or local units of government.
Accordingly, EPA will encourage early communication and cooperation
among Tribes, States and local governments. This Is not Intended to
lend Federal support to any one party to the jeopardy of the Interests
of the other. Rather, 1t recognizes that 1n the field of environmental
regulation, problems are often shared and the principle of comity
between equals and neighbors often serves the best Interests of both.
7. THE AGENCY WILL WORK WITH OTHER FEDERAL AGENCIES WHICH HAVE RELATED
RESPONSIBILITIES ON INDIAN RESERVATIONS TO ENLIST THEIR INTEREST AND
SUPPORT IN COOPERATIVE EFFORTS TO HELP TRIBES ASSUME ENVIRONMENTAL
PROGRAM RESPONSIBILITIES FOR RESERVATIONS.
EPA will seek and promote cooperation between Federal agencies to
protect human health and the environment on reservations. We will
work with other agencies to clearly Identify and delineate the roles,
responsibilities end relationships of cur respective .organisations srS
to assist Tribes in developing and managing environmental programs for
reservation lands.
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8. THE AGENCY WILL STRIVE TO ASSURE COMPLIANCE WITH ENVIRONMENTAL STATUTES
AND REGULATIONS ON INDIAN RESERVATIONS.
In those cases where facilities owned or Managed-by Tribal Governments
are not 1n compliance with Federal environmental statutes, EPA will work
cooperatively with Tribal leadership to develop weans to achieve compliance,
providing technical support and consultation as necessary to enable Tribal
facilities to comply. Because of the distinct status of Indian Tribes and the
complex legal Issues Involved, direct EPA action through the judicial or
administrative process will be considered where the Agency determines, In Us
judgment, that: (1) a significant threat to human health or the environment
exists, (2) such action would reasonably be expected to achieve effective
results 1n a timely manner, and (3) the Federal Government cannot utilize
other alternatives to correct the problem 1n a timely fashion.
In those cases where reservation facilities are clearly owned or managed
by private parties and there 1s no substantial Tribal Interest or control
Involved, the Agency will endeavor to act 1n cooperation with the affected
Tribal Government, but will otherwise respond to noncompHance by private
parties on Indian reservations as the Agency would to noncompliance by the
private sector elsewhere in the country. Where the Tribe has a substantial
proprietary interest 1n, or control over, the privately owned or managed
facility, EPA will respond as described 1n the first paragraph above.
9. THE AGENCY WILL INCORPORATE THESE INDIAN POLICY GOALS INTO ITS PLANNING
AND MANAGEMENT ACTIVITIES; INCLUDING ITS BUDGET, OPERATING GUIDANCE. LEGISLA-
TIVE INITIATIVES, MANAGEMENT ACCOUNTABILITY SYSTEM AND ONGOING POLICY AND
REGULATION DEVELOPMENT PROCESSES..
It 1s a central purpose of this effort to ensure that the principles
of this Policy are effectively Institutionalized by Incorporating them Into
the Agency's ongoing and long-term planning and management processes. Agency
managers will Include specific programmatic actions designed to resolve prob-
lems on Indian reservations 1n the Agency's existing fiscal year and long-term
planning and management processes.
William D. Ruckelshaus
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GENERAL PROPOSED RULE ON INDIAN
TRIBES1 RESPONSIBILITIES AND THE CLEAN
WATER ACT
The proposed preamble was prepared by the Environmental
Protection Agency (EPA) to serve as an overview for programs under
the Clean Water Act (CWA) pertaining to the Indian Lands.
-------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts
[FRL ]
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed/Interim Final Rule.
SUMMARY: The Hater Quality Act of 1987 (Pub. L. 100-4) amends
the Clean Water Act (CWA) by adding Section 518 which requires
EPA to promulgate regulations, specifying how Tribes will be
treated as States for the following provisions of this Act:
Title II (construction grants), § 104 (research, investigation,
and training) , § 106 (grants for pollution control), § 303
(water quality standards), § 305 (water quality inventories),
§ 308 (inspections, monitoring, and entry), § 309 (federal
enforcement), § 314 (Clean Lakes), § 319 (non-point source
program), § 401 (certification), § 402 (National Pollution
Discharge Elimination System), and § 404 (permits for dredge and
fill material) .
This proposed rule would establish requirements for: a)
determining eligibility of Indian Tribes to be treated as States
for purposes of Sections of the CWA and if found
eligible, b) allow for. EPA is concurrently developing
regulations for the other provisions which Section 518 of the CWA
extended to Tribes.
EFFECTIVE DATE: The amended requirements contained in this rule
found at 40 CFR Parts . will take effect [insert
date 30 days after publication of the final rule in the Federal
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- 2 -
Register.] In accordance with 40 CFR Part 23.2, this regulation
shall be considered final Agency action for the purpose of
judicial review at 1:00 p.m., eastern time on [insert date 14
days after publication of the final rule in the Federal
Register.]
ADDRESSES: ..
FOR FURTHER INFORMATION: Contact the Office of Water contact
, Environmental Protection Agency, 401 M
Street S.W., Washington, D.C., 20460, telephone
SUPPLEMENTARY INFORMATION:
TABLE OF CONTENTS
I. Background
A. Authority
B. Development of Today's Rule
C. EPA Indian Policy
II. Summary and Explanation of Today's Action
A. Treatment of Indian Tribes as States
1. Federal Recognition
2. "Substantial Governmental Duties and Powers"
3. Jurisdiction
4. Tribal Capability
5. Process for Evaluating Applications
III. Other Issues
1. Alaska Native Villages and Oklahoma
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- 3 -
I. BACKGROUND
A. Statutory Authority
The over-all objective of the 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 are: 1) eliminating the 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 17 years, the
Agency has focused on developing standard operating relationships
with the States and localities. These relationships generally
have led to the successful operation of EPA and State Programs on
most lands in the United States.
Congress, through amendments to both the Clean Water Act
(CWA) in 1987 and the Safe Drinking Water Act (SDWA) in 1986, has
authorized the 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.
As discussed earlier? the 1987 Amendments to the CWA aduecl a
new Section 518 entitled "Indian Tribes." Section 518 authorizes
EPA to treat Indian Tribes as States for the purposes of certain
provisions of the Act, and provide grant and contract assistance
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- 4 -
(for certain of these programs) to Indian Tribes where
appropriate. Section 518 requires EPA to promulgate regulations
specifying how the Agency will Treat an Indian Tribe as a State
under the following provisions: Title II (construction grants),
§ 104 (research, investigation and training), § 106 (grants for
pollution control), § 303 (water quality standards and
implementation plans), § 305 (water quality inventory), § 308
(inspections, monitoring, and entry), § 309 (federal
enforcement), § 314 (Clean Lakes), § 319 (non-point source),
§ 401 (certification), § 402 (National Pollution Discharge
Elimination System), and § 404 (permits for dredge and fill
material).
Section 518(e) of the CWA establishes certain criteria an
Indian Tribe must meet before treatment as a State is
authorized: (1) "the Indian Tribe has a governing body carrying
out substantial governmental duties and powers;" (2) "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 United States in trust for Indians,
held by a member of an Indian Tribe if such property interest is
subject to a trust restriction on alienation or otherwise within
the boundaries of a reservation;" and (3) "the Indian Tribe is
reasonably expected to be capable, in the Administrator's
judgment, of carrying out the functions to be exercised in a
manner consistent with the terms and purposes of the Act and of
all applicable regulations."
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- 5 -
In addition to the eligibility requirements specified in
Section 518(e), Section 518(h)(2) defines Indian Tribes as
follows: "Indian Tribe means any Indian Tribe, band, group, or
community recognized by the Secretary of Interior and exercising
governmental authority over a Federal Indian reservation."
Consequently, Federal recognition and governmental authority over
reservation lands are necessary criteria by definition.
B. Development of This Rule
Based on the statutory amendments to the CWA, there are
currently regulations related to five separate CWA programs at
different stages of development in the Agency: 1) Construction
Grants program 2) Water Quality Standards program (including the
required conflict resolution mechanism), 3) Dredge and Fill
permit program on Indians Lands, 4) National Pollution Discharge
Elimination System permit program on Indian Lands, and 5) Clean
Water Act grants programs for Indian Lands. To promote
consistency among the various regulations being developed, an
intra-Agency oversight committee was established. Efforts are
being made by this committee to develop parallel requirements
where appropriate in order to reduce the burden on Tribes that
choose to apply for any of these programs.
EPA has already issued regulations 1) specifying how Indian
Tribes will be treated as states for purposes, ol tlia Public H»ter
System and Underground Injection Control (UIC) programs under the
SDWA (53 FR 37396) (referred to below as the "SDWA Indian Primacy
Rule"), and 2) promulgating federal UIC programs on all Indian
-------
lands where an applicable program had not been in place (53 FR
43084). The SDWA Indian Primacy Rule is being used as a model
for developing parallel regulatory approaches in the forthcoming
CWA Indian regulations.1
Section 518(e) of the CWA requires consultation with Indian
Tribes during regulation development. The Act also requires the
Administrator to consult affected States sharing common water
bodies and provide a mechanism for the resolution of any
unreasonable consequences that may arise as a result of differing
water quality standards that may be set by States and Tribes
located on common bodies of water.
In keeping with this requirement, the Agency decided a
multifaceted consultation approach would be most appropriate.
Tribal and State representatives were appointed to serve on
various CWA Indian workgroups. For the most part, workgroup
meetings have been noticed in the Federal Register inviting the
public to observe and offer comment. Other efforts to consult
with Tribes and States have included national meetings across
the country to discuss the regulatory approaches proposed in the
various CWA regulations, attendance of EPA officials at both
Tribal and interested State meetings to present regulatory
approaches being considered, and distribution of the draft
*. One other rule, which would treat Tribes as States for
the purposes of the SDWA Sole Source Aquifer Demonstration and
Wellhead Protection programs, has also been proposed (52 FR
46712).
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- 7 -
proposed language for broad review at an early stage of
regulation development.
C. EPA Indian Policy
This rule is consistent with Federal Policy statements
regarding Indian Tribes. On January 24, 1983, the Federal
government established an Indian Policy Statement providing for
treatment of Tribal governments on a government-to-government
basis and supporting the principle of self-determination and
local decision-making by Indian Tribes.
The EPA's policy is "to give special consideration to Tribal
interests in making Agency policy and to ensure the close
involvement of Indian Tribes in making decisions and managing the
environmental programs affecting reservation lands." In
practice, EPA's policy is to work directly with Indian Tribes as
independent authorities for reservation affairs, recognizing that
they are not political subdivisions of States.
II. SUMMARY AND EXPLANATION OF TODAY'S ACTION
Today's proposed rule would authorize an Indian Tribe to be
treated as a State for (specific program) if the Indian Tribe
meets the eligibility criteria specified in Section 518.
The criteria for treating Indian Tribes as States under the
CWA and the SDWA are very similar. The Agency intends to
establish the least burdensome process possible for Tribes to
demonstrate State eligibility. When all regulations under the
SDWA and CWA specifying how Tribes shall be treated as States are
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- 8 -
final, the Agency will develop procedures to implement a single
application procedure for the SDWA and CWA programs.
Most qualification criteria are of a general nature and
documentation as to how the Tribe how the Tribe meets them need
only be provided when a Tribe first applies for "treatment as a
State" under the SDWA or CWA. For example, the "Federal
recognition" and "governmental duties and powers" criteria would
ordinarily need to be demonstrated during the first application a
Tribe submitted under either of the Acts.
The Agency believes that even with a streamlined application
procedure, some qualifications will still need to be demonstrated
separately for each program, particularly those regarding
capability. For example, a Tribe may possess the requisite
capability to establish water quality standards but not to assume
the Dredge and Fill Material permit program. Yet the Agency does
not wish to put Tribes through the burden of filing complete
applications for treatment as a State for each separate program.
Consequently, the Agency will allow an Indian Tribes which has
previously been designated as a State under criteria of either
SDWA or CWA to provide only that information which is unique to
the specific additional program(s) (which may include
demonstrating adequate regulatory authority to administer the
specific program) for which the Tribe is applying.
As is the case for States, an Indian Tribe must have its own
legal authorities to administer a program under the CWA; EPA
cannot delegate its own authority. However, the Agency
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- 9 -
considered whether the lack of criminal enforcement authority
over non-Indians on Indian lands would preclude Tribes from
applying for the National Pollution Discharge Elimination System
program (§ 402) and the Dredge and Fill Material Permit program
(§ 404) that currently require such authority for State
application.
Section 1451 of SDWA specifically states that Indian Tribes
are not required to exercise criminal enforcement jurisdiction
for primary enforcement responsibility. The CWA as amended,
however, does not include similar language indicating whether it
would be appropriate to treat a Tribe not having comprehensive
criminal enforcement authority as a State where such authority is
currently required 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.
Suouamish Indian Tribe. 435 U.S. 191 (1978). In addition, the
i
Federal Indian Civil Rights Act prohibits any Indian court or
tribunal from imposing any criminal fine greater than $5,000, (25
U.S.C. 1302(7)) . '
The Agency believes that even though Congress did not
explicitly waive the requirement under CWA, as under SDWA, that
Conaress nonetheless intended Tribes to be able to obtain
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- 10 -
delegation 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 SOWA, intended not to waive the criminal enforcement
requirement, EPA's reading would make part of Section 518 of CWA
a nullity. This nullity would exist since absent further
legislative action, no Tribe would be able to obtain primary
enforcement authority under Sections 402 or 404 of CWA, nor
receive a grant under Section 106. 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 and
further would violate two traditional rules of statutory
construction: 1) legislation should not be interpreted as being
meaningless, if at all possible; and 2) ambiguous statutes should
be interpreted to the benefit of Tribes.
Thus, EPA has decided not to require comprehensive criminal
enforcement authority as a condition to assuming these programs.
Tribes will, instead, be required to provide for the referral of
criminal enforcement matters to EPA in an appropriate and timely
manner in instances where the Tribe lack the authority. Such
procedures would be established in a formal Memorandum of
Agreement (MOA) with the Regional Administrator. Thus, the lack
of comprehensive Tribal criminal enforcement authority should
not prevent a Tribe from having an approvable CWA program.
Because CWA program funds are limited, many Indian Tribes
may decide it is not cost-effective or otherwise beneficial to
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- 11 -
apply for various CWA program authorities. The Agency encourages
Tribes to carefully consider which of the available programs
would be beneficial to assume and to target the Tribal efforts
and resources towards those specific programs. The Agency notes
that Tribal assumption of the CWA programs discussed in today's
program is voluntary on the part of the Tribes.
In order to facilitate consistent implementation of the
requirements of CWA, an Indian Tribe and the State or States
adjacent to the lands of such Tribe may enter into a cooperative
agreement (or a series of agreements), subject to the review and
approval of the Administrator, to jointly plan and administer the
requirements of this Act (see Section 518(d) of the CWA.)
The Agency highly encourages such cooperative agreements,
because of the benefits to all concerned such as information and
* .
resource sharing. The Agency does not have any specific criteria
that a cooperative agreement must meet; so long as all parties
involved approve it and it complies with the intent and
administrative requirements of CWA. In situations where EPA is a
signatory to a cooperative agreement, all Federal requirements
that govern such agreements must also be met.
Draft cooperative agreements should be submitted to the
Regional Administrator for review and approval. If necessary,
the Agency will develop guidance to assist the Tribes and States
in developing cooperative agreements and the Regions in
evaluating such cooperative agreements.
A. Treatment of Indian Tribes as States
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- 12 -
This rule would create procedures for Indian Tribes to apply
to EPA for treatment as a State in order to be eligible to apply
for This rule creates
procedures set forth in a new Subpart titled: "Treatment
of Indian Tribes as States." Subpart establishes criteria
Indian Tribes must meet for treatment as a State, lists the
information the Tribe must provide in its application to EPA, and
provides a procedure for EPA to formally review applications for
"treatment as a State." The requirements a Tribe must meet under
all the CWA Indian regulations are as identical as possible
leaving room for program specific requirements which are
explained further in the capability requirements section of this
notice.
As mentioned previously, Section 518 of the CWA specifies
that a Tribe is eligible for treatment as a State if it meets the
following eligibility criteria:
(1) is Federally recognized;
(2) carries out substantial governmental duties and powers
over a Federal Indian reservation;
(3) has appropriate regulatory authority over surface
waters on the reservation; and
(4) is reasonably expected to be capable of administering
'the relevant CWA program.
The Agency believes the language in Section 518 requires
that each of these eligibility criteria must be satisfied through
a separate demonstr?tion by a Tribe following the procedures
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— 13 -
these regulations will set forth. These procedures are intended
to ensure Tribes who are treated as States, meet the requirements
of the CWA not to act as a barrier to program assumption.
Rather the Agency hopes that as many Tribes as possible will
assume responsibility for the CWA programs where the Tribe and
the Agency deem it appropriate.
1. Federal Recognition
With respect to Federal recognition as an Indian Tribe, the
Secretary of the Interior periodically publishes a list of
Federally recognized Tribes. If the applicant appears on this
list it need only state that this is so. If the Tribal name does
not appear on this list because the list has not been updated,
the Tribe can still provide appropriate documentation to EPA
verifying that it is Federally recognized by the Secretary of
Interior.
2. "Substantial Governmental Duties and Powers"
A Tribe must also satisfy the second criterion: that the
Tribe is "carrying out substantial governmental duties and
powers." The Agency defines "substantial governmental duties and
powers" to mean that the Tribe is currently performing
governmental functions to promote the public health, safety, and
welfare [of the affected population] within a defined
geographical area.
Many Indian Tribal governments perform functions
traditionally performed by sovereign governments. Examples of
such functions include, but are not limited to, levying tax,
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- 14 -
acquiring land by exercising the power of eminent domain, and
police power (i.e., providing for the public health, safety and
general welfare of the affected population). Based on comments
on the SDWA Indian Primacy rule, the Agency believes that most
Tribes will be able to meet these criteria without much
difficulty. (See 53 FR 37399).
The Agency intends to minimize the burdens to a Tribe while
attempting to demonstrate that it is carrying out substantial
governmental duties and powers. The Agency proposes to require a
narrative statement: (1) describing the form of Tribal
government; (2) describing the types of essential governmental
functions currently performed, such as those listed above; and
(3) identifying the legal authorities for performing these
functions (e.g., Tribal constitutions, codes, etc.).
The Agency merely intends the functions listed above (e.g.,
police powers affecting the health, safety and welfare, taxation,
and power of eminent domain) as examples. It is not necessary
that an applicant be currently performing each such function to
qualify for treatment as State. The Agency intends only to
require sufficient documentation to determine whether a Tribe
satisfies the statutory requirement of "carrying out substantial
governmental duties and powers."
3. Jurisdiction
The third requirement a Tribe must meet for treatment as a
State is that "the functions to be exercised by the Tribe must
pertain to the management and protection of water resources
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- 15 -
which are held by an Indian Tribe, held by the United States in
trust for Indians, held by a member of an Indian Tribe if such
property interest is subject to a trust restriction on
alienation, or otherwise within the boundaries of a
reservation."
The criterion for Tribal regulatory authority under the CWA
is somewhat different than the parallel criterion under Section
1451 (a) (2) of SDWA, which states: "the functions to be
exercised by the Indian Tribe are within the area of the Tribal
Government's jurisdiction-" Thus, whereas Section 518(e)(2) of
the CWA suggests that Tribes may only regulate those water
resources which are within the exterior boundaries of a Federal
Indian reservation, Section 1451(a)(2) of SDWA makes no such
explicit limitation and may allow a Tribe to claim regulatory
authority over lands that are outside the Federal reservation.
As a result, Tribes are not precluded from applying for treatment
as a State for any lands over which the Tribe believes it has
jurisdiction. (See 53 FR 37400).
The CWA establishes a somewhat narrower part of Indian
country for which EPA will recognize Tribal authority by
i
restricting Tribal eligibility for treatment as a State to lands
"otherwise within reservation boundaries." The Agency
anticipates that this language may reduce the potential for
disputes since authority to regulate with in the exterior
boundaries is more readily determined.
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- 16 -
Coinroenters on the SDWA Indian Primacy Rule suggested that
Tribes should not face the burden of proving their jurisdiction,
i.e., that they should receive the sane general recognition of
sovereign authority that EPA accords States (53 FR 37399). The
Agency recognizes that there is substantial support for the
general proposition that a Tribal government has authority to
administer CWA programs within the exterior boundaries of the
Tribe's reservation. The Agency does not believe, however, that
it is appropriate to establish a rebuttable presumption
concerning Tribal governmental authority. Just as when EPA
considers a State application, EPA must not delegate program
responsibility to a Tribe unless the Tribe can adequately show it
possesses the requisite authority.
The Agency recognizes that there may be some disputes
regarding the extent of Tribal authority to administer CWA
programs and therefore believes it necessary to require
documentation to demonstrate adequate authority by Tribes
applying for CWA programs. The request that a given Tribe
establish its authority to administer CWA programs is not meant
to be a barrier or a deterrent to that Tribe's attainment of
these programs. Rather the intent of these requirements is to
raise at an early date the presence or absence of a key element
to effective administration of CWA programs.
The process the Agency proposes to establish for Tribes to
demonstrate their authority includes the submission of a
statement signed by the Tribal Attorney General or an equivalent
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- 17 -
official explaining the legal basis for the Tribe's regulatory
jurisdiction to administer the desired program(s). The statement
is similar to the statement currently required of States applying
for primacy (see, e.g., 40 CFR 123.24). The Attorney General's
statement will supplement the other documentation mentioned in
§ of this proposed rule (e.g., a map, .copies of
tribal codes and ordinances, etc.) The Attorney General's
statement with the supporting documentation will assist EPA in
verifying that the Tribe has the necessary authority to
administer the appropriate CWA program.
4. Tribal Capability
The fourth criterion that a Tribe must meet is that, in the
Administrator's judgment, the Tribe must be "reasonably expected
to be capable" of administering an effective program. In
evaluating a Tribe's demonstration that it is "reasonably
expected to be capable" of administering an effective (name of
your program(s)) program, the
Administrator will consider from among the following six factors
those which are appropriate for the (name of program(s):
(1) the Tribe's previous management experience;
(2) existing environmental or public health programs
administered by the Tribe;
(3) its accounting and procurement systems;
(4) the mechanism(s) in place for carrying out the
executive, legislative, and judicial functions of the Tribal
government;
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- 18 -
(5) the relationship between regulated entities and the
Administrative agency of the Tribal government which is, or will
be, designated as the primacy agent; and
(6) the technical and administrative capabilities of the
staff to administer and manage the program or a plan describing
how the Tribe intends to obtain the additional technical and .
administrative staff necessary to manage the program(s).
Based on the nature of the (program(s) addressed in this
regulation, Tribes need only demonstrate that they meet the
following factors: (list the factors from the six listed above
that are relevant to your proaramfsli, since the others are not
considered relevant to this program(s).
The Agency recognizes that certain Tribes may not have
substantial experience in administering environmental programs.
Although lack of this experience will not preclude a Tribe from
demonstrating the required capability, the presence of such
experience will be of significant importance to the Agency. The
Agency believes it is appropriate to require that a Tribe show
that it has either the necessary staff or a viable plan to
acquire the additional technical and administrative expertise.
This presumes that while a Tribe may not yet possess all the
necessary existing technical and administrative expertise to
administer this program at the outset, at a minimum, it must
possess the administrative and technical expertise necessary to
begin developing the program(s) being applied for. EPA will
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- 19 -
assist Tribes in drafting appropriate plans for developing
capability to administer CWA programs.
The EPA proposes to require a Tribe to supply information on
its accounting and procurement system for those CWA programs
where such a requirement is appropriate. The purpose of this
requirement is to make an applicant demonstrate its capability to
track program funding. A description of this function may be
included in the Tribe's discussion of previous managerial
experience. As an example, Tribes which have established
accounting systems to administer contracts under the Indian Self-
Determination Act (Pub. L. 93-638; 25 U.S.C. 450f) should submit
a description of that system. (See 25 CFR § 271.46).
The EPA proposes to request information on the Tribe's
executive, legislative, and judicial functions to assure that the
Tribe has the capability to administer the
• *
program.
The EPA's evaluation of the Tribe's capability will also
consider the relationship between the existing or proposed Tribal
agency which will assume the program and any
potential regulated Tribal entities. A common situation among
Indian Tribes is that the Tribe is both the regulator and
regulatee. Such a situation could result in a conflict of
interest if EPA delegated the program to the Tribe, siiiwc t.he
Tribe would be regulating itself. The Agency believes that
independence of the regulator and regulatee is necessary to best
assure effective and fair administration of these programs.
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- 20 -
This approach is not meant to require the Tribes to divest
themselves of ownership of any regulated entities it owns or
operates. One possible solution to the problem could be the
creation of an independent organization to regulate Tribal
entities subject to CWA regulatory requirements. Similar
arrangements could be established utilizing existing Tribal
organizations.
Failure to resolve the regulator/regulatee conflict will not
preclude a Tribe from being eligible for treatment as a State
but is intended to alert Tribes at an early date about a
potential bar to regulatory program assumption that must be
resolved. Resolution of the regulator/regulatee issue relative
to the CWA programs will be evaluated on a case-by-case basis.
EPA does not intend to limit Tribal flexibility in creating
structures which will ensure adequate separation of the regulator
and the regulated entity. [Some of the CWA programs provided for
under Section 518 do not have to consider this conflict as will
be explained in each specific rule.]
The Agency is aware that, in limited cases, States also are
in a similar situation of being both regulator and regulatee.
However, state infrastructures are typically such that the State
agency operating the regulated entity is not the same State
agency that has primary enforcement authority. This is in
contrast to the typical situation exhibited by Indian Tribes
which may own and operate most or all regulated entities.
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- 21 -
»
As stated earlier in this notice, many Tribes, particularly
the smaller Tribes, may decide that it is not cost-effective or
otherwise beneficial to apply for primary enforcement
responsibility because of funding and workload considerations.
The Agency anticipates that, in general, a certain minimum size
(as determined by Tribal population, the size of the regulated
community, and the number of entities regulated) nay be necessary
for Tribes to efficiently administer these programs and that
some smaller Tribes may have difficulty administering these
programs.
Consequently, the Agency encourages smaller Tribes to
consider consortium*, or intertribal agencies as ways to obtain
the necessary expertise to administer these programs and to make
the attainment of primacy cost-effective and beneficial to the
•
Tribe. The Agency will consider and evaluate all applications it
receives, regardless of the applicant's size, on a case-by-case
basis.
Although EPA will consider applications by a group or
consortium of Tribes within the same geographical area, each
applicant must still meet all the eligibility requirements to be
treated as a State, particularly the requirements of Section
518(e)(2).
. t>. Process for Evaluating Applications
Within thirty days after receipt of a Tribe's complete
application for treatment as a State (which has all the
information required in § ), EPA will
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- 22 -
notify appropriate governmental entities (e.g., neighboring
Tribal and State governments) of the receipt of the application
and the substance of and basis for the Tribe's assertion of
authority over reservation vaters.
Each of the governmental entities will have thirty days
after receipt of the notice to submit comments to EPA. Comments
will be limited solely to the issue of the Tribe's shoving under
Section 518(e)(2). EPA will not consider comments directed to
whether the Tribe meets EPA's other requirements for treatment as
a State.
If an Indian Tribes's assertion under 518(e)(2) is subjected
to a competing claim, the Administrator, will consult with the
Tribe, the governmental entity submitting comments, and the
Secretary of the Department of the Interior, or his designee.
After consultation, and in consideration of comments received,•
the Administrator will determine whether the Tribe has adequately
demonstrated that it meets the requirements of Section 518(e)(2).
If the Administrator concludes that a Tribe has not adequately
demonstrated its authority with respect to an certain reservation
waters, then Tribal assumption of the . program will
be restricted accordingly. Any such determination by the
Administrator is not a determination of the Tribe's general
regulatory authority, but only with respect to administration of
the CWA program(s) addressed in this rule. A dispute over
certain reservation over which a Tribe is asserting authority
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- 23 -
under Section 518(e)(2) will not necessarily delay the Agency's
decision to treat a Tribe as a State for the non-disputed waters.
This procedure does not imply that States *or Federal
agencies have veto power over Tribal applications for treatment
as a State. Rather, the procedure is simply intended to ensure
that the Tribe has the necessary authority to administer the
program. The Agency will not rely solely on the
assertions of a competing regulatory authority; it will make an
independent evaluation of the Tribal showing.
The Agency does not believe it will be possible to approve
or disapprove all applications for "treatment as a State" within
a designated time frame. The Agency fully anticipates that there
will be instances where the determinations under Section
518(e)(2) and (e)(3) will require the Agency to go back to a
Tribe for. clarification or additional information. Likewise, the
Agency's experience with States applying for various EPA programs
indicates that at times meetings and discussions between EPA and
the State are necessary before all requirements are met. The
Agency believes that the same process of communication with
Tribes will be beneficial in ensuring that Tribes meet the
"treatment as a State" criteria in an expeditious manner.
If the Administrator determines that a Tribe meets all the
requirements of Subpart , a Tribe is then eligible for
this program(s). CWA clearly mandates that a Tribe qualify for
"treatment as a State" before it can receive grants except for
the limited case of awarding grants to Tribes under Title II
-------
- 24 -
where Tribes have the option to receive project grants without
applying for treatment as a State.
A decision by the Administrator that a Tribe does not meet
the requirements for treatment as a State does not preclude the
Tribe from resubmitting the application at a future date. If the
Administrator determines that a Tribal application is deficient
or incomplete, the Tribe should consult with EPA on what changes
are necessary.
III. OTHER ISSUES
1. Alaska Native Villages and Oklahoma's Tribes
Under the CWA Indian Amendments the Agency concludes that
Alaska Native Villages (except for the Annette Island Reserve of
the Metlakatla Indian Community) are not eligible to apply for
treatment as a State based on the definition of Indian Tribes.
The Act uses the following, definition in Section 518 (h): "(1)
4
"Federal Indian reservation" means all lands within the limits of
any reservation under the jurisdiction of the United States
Government, notwithstanding the issuance of any patent, and
including rights-of-way running through the reservation; and (2)
"Indian Tribe" means any Tribe, band, group, or community
recognized by the Secretary of the Interior and exercising
governmental authority over a Federal Indian reservation."
[emphasis added] Since Alaska Native Villages do not exercise
authority over federal Indian reservations, under the terms of
the CWA they are not "Tribes" for purposes of Section 518.
-------
- 25 -
The Agency's conclusion is based on the fact that since
passage of the Alaska Native Claims Settlement Act (25 U.S.C.
1618) in 1971, Alaska Native Villages, with one limited
exception, do not exercise governmental authority over a Federal
Indian reservations. This lack of authority prevents Alaska
Native Villages from being eligible to receive grants or assume
programs under Section 518(e) of the Act.
Section 518(g) of the CWA does not affect EPA's analysis of
the status of Alaska Native Villages. Section 518(g) states that
"no provisions of this Act shall be construed to —
(1) grant, enlarge, or diminish, or in any way affect the
scope of the governmental authority, if any, of any Alaska
Native organization, including.any federally recognized tribe,
traditional Alaska Native council,' or Native Council organized
pursuant to the Act of June 18, 1934 (48 Stat. 987), over lands
or persons in Alaska;
(2) create or validate any assertion by such organization or
any form of governmental authority over lands or persons in
Alaska; or
(3) in any way affect any assertion that Indian country as
defined in Section 1151 or title 18, United States Code, exists
or does not exist in Alaska.
Section 518(g) merely clarifies that providing for Tribal
participation under the CWA, in and of itself, did not change the
legal status of the Alaska Native Villages.
-------
- 26 -
The Agency also concludes that certain Tribes on former
reservations in Oklahoma and elsewhere likewise are not eligible
to apply for the CWA programs or grants addressed in this notice
because they also do not meet the definition Tribe under Section
5l8(h)(l). However, Alaska Native Villages other non-reservation
Tribes may apply for grants as municipalities through the state
construction grant program or receive a loan from the State
Revolving Loan Fund program under Title VI of the CWA. In
addition, legislation has recently been adopted which will allow
Alaska Native Villages and Tribes on former reservations in
Oklahoma to apply for Title II Grants under the Indian set-aside
of Section 518(c). (Pub. L. 100- , 101 Stat. ).
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-------
-------
PUBLIC WATER SYSTEM (PWS) PROGRAM
TABLE OF CONTENTS:
EXECUTIVE SUMMARY
SUPPORTING DOCUMENTS:
• Final Rule: Safe Drinking Water Act—National Drinking Water
Regulations, Underground Injection Control Regulations, Indian
Lands
(40 CRF Parts 35,141,142,143,144,145, and 146)
September 26,1988
• Final Guidance on Implementing the Indian Primacy Rule for the
PWSS and UIC Programs
April 25,1989
• Indian Drinking Water Supply Study
(Executive Summary, Chapter 1, and Chapter 4)
January 1988
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EXECUTIVE SUMMARY:
PUBLIC WATER SYSTEM (PWS)
(40 CFR Parts 35,124,141-146)
OVERALL PROGRAM PURPOSE
The Safe Drinking Water Act (SOWA) of 1974 was enacted to protect the
quality of drinking water supplies throughout the U.S. by establishing four
major programs: the Public Water System, Underground Injection Control
(UIC), Wellhead Protection, and Sole Source Aquifer Demonstration
programs.
The purpose of the PWS program is to insure the public a safe drinking water
supply by establishing the maximum level of any contaminant. The SDWA
Amendments of 1986 allow Indian Tribes to be treated as States for purposes
of administering Public Water System programs if they meet the conditions
specified in the Act. EPA promulgated regulations establishing procedures for
Indian Tribes to be granted primary enforcement responsibility for
administering PWS program. The three-step procedure includes:
1. Applying for treatment as a State;
2. Applying for and receiving Federal funding to develop a PWS
program; and
3. Applying for and receiving primary enforcement responsibility on
Indian Lands and the Federal funding to support the program.
ELIGIBILITY REQUIREMENTS FOR TREATMENT AS STATES
(40 CFR Part 142, Subpart H and Section 1451 of the SDWA))
Tribes may apply for treatment as States under either the Safe Drinking
Water Act or the Clean Water Act. If approved under either statute, the Tribe
need only submit information specific to the PWS program to apply for
treatment as a State and then to be eligible to apply for financial assistance and
primacy for the PWS.
To meet the eligibility requirements for treatment as a State, a Tribe must:
1. Be Federally Recognized. The Tribe must demonstrate that it is
included on the list of Federally recognized Tribes, published by the
Department of the Interior.
2. Carry Out Substantial Governmental Duties and Powers. EPA
defines this to mean the Tribe is performing functions to promote the
health, safety, and welfare of the affected population over a defined
area. (Examples of these functions include, but are not limited to, the
power to tax, the power of eminent domain, and police power.)
-------
To address this criterion, the Tribe must submit a narrative describing:
1) its form of Tribal government; 2) the types of government
functions being performed; 3) the sources of authority to perform
these functions.
3. Demonstrate that the PWS to Be Regulated is Within the Area of its
Jurisdiction. The Tribal Attorney General, or an equivalent officer,
must submit a statement certifying that the Tribe possesses sufficient
authority to regulate and enforce the PWS program. Legal
documentation, such as Tribal constitutions, codes, or resolutions,
must be included. The Tribe must also submit a legal description and
map of the area over which it has authority.
4. Demonstrate its capability to administer an effective PWS program
in a manner consistent with the terms of the Act. Tribes must submit
a narrative statement that addresses the six criteria related to capability
identified in 40 CFR 142.76.
PROGRAM RESPONSIBILITIES AND ASSISTANCE THAT STEM FROM
ASSUMING THE PWS PROGRAM
Primacy Responsibilities
(40 CFR Part 142)
Once the Tribe has completed the development phase, which can last up to
three years, and has shown it can administer the program, the Tribe may
apply for primacy. The requirements for primacy are defined in 40 CFR
Sections 142.10 through 142.13. Public Water System Supervision (PWSS)
primacy regulations are currently being revised and are expected to be
promulgated in July 1989. Tribes applying for primacy after that date will be
subject to the new regulations.
Program Assistance
(40 CFR Part 35, Subpart A)
If designated eligible to be treated as a State, a Tribe may apply for a
development grant. Regional staff must work closely with the Tribes to
clearly identify the individual needs of the Tribe and the costs.
A Tribe must match 25% of Federal funding unless it can show that it does
not have adequate funds or in-kind contributions to meet this requirement,
in which case it may be allowed to match only 10%.
In addition, the grant application must address:
1. A plan to resolve any conflicts of interest between the primacy
organization and the organization that owns/operates the public water
systems;
2. Establishment and maintenance of a program to certify laboratories
conducting contaminant measurements of drinking water;
-------
3. Development of a compliance and enforcement strategy and an
enforcement agreement with EPA to respond to violations of the
SWDA, National Primary Drinking Water Regulations, or the Tribe's
own regulations.
-------
Monday
September 26, 1988
Part II
Environmental
Protection Agency
40 CFR Parts 35, 124, 141, 143, 144, 145,
and 146
Safe Drinking Water Act—National
Drinking Water Regulations, Underground
Injection Control Regulations; Indian
Lands; Final Rule
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37396 Federal Register / Vol. S3. No. 186 / Monday. September 26. 1988 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 35.124,141,142,143,
144,145, and 146
[FRL-3304-2]
Safe Drinking Water Act—National
Drinking Water Regulations,
Underground Infection Control
Regulations; Indian Lands
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: The Safe Drinking Water Act
(SDWA) Amendments of 1986 (Pub. L.
99-339) require EPA to promulgate
regulations specifying those provisions
of the Act for which it would be
appropriate to treat Indian Tribes as
States. This rule allows Tribes to be
treated as States for purposes of
administering a Public Water System or
Underground Injection Control program.
The rule establishes procedures for. (a)
Determining eligibility of Indian Tribes
to apply for treatment as States; (b) if
found eligible, to apply for primary
enforcement responsibility (primacy) on
Indian lands; and (c) to receive grants to
support EPA approved Public Water
System and Underground Injection
Control regulatory programs. EPA in a
separate notice proposed rules for
administration of Wellhead Protection
and Sole Source Aquiftr Demonstration
programs by Indian Tribes [52 PR 46712.
Decembec a 1467).
EFFECTIVE BATE: The amended
requirements contained in this nrfe
found a* 40 CFR Part* 35.124,141. «2,
143,144.145. and1146 will take effect
October 26.1986. In accordance with 40
CFR 23.7. this regulation shall be
considered final Agency action for the
purpose of judicial review at 1:00 p-nv
eastern time on October 11.1988.
ADDRESSES: Public comments.
supporting documents, and the public
docket for this rulemaking are available
for review during normal business hours
at the Environmental Protection Agency,
Room 1003 bast '1 ower, «ui Ki Sireei
SW.. Washington. DC 20460.
FOR FURTHER INFORMATION: Contact Al
Havinga. State Programs Division.
Office of Drinking Water (WH-550E).
Environmental Protection Agency, 401 M
Street SW., Washington, DC, 20460,
telephone (202) 382-5555.
SUPPLEMENTARY INFORMATION:
Table of Contents
II Background
A. EPA's Indian Policy
B. Statutory and Regulatory .Background
C. Public Comments on the Proponl
01. Summary and Explanation of Today**
Action
A. Statutory, Regulatory, and Prog*an»attc
Framework
1. Statutory and Regulatory Framework.
2. Programmatic Framework
B. Treatment of Indian Tribes as States
1. Federal Recognition
2. "Substantial Governmental Duties and
Powers"
3. Jurisdiction
4. Tribal Capability
5. Process for Evaluating Applications
C. Requirement* for Primary EaftnceBeot
Responsibility
1. Tribal Primacy Requirements
2. Primacy Requirements cot Appfinble
to Tribes
3. Administrative Option* Avaifcbt to
Tribes
4. Primacy Technical Auistaaea
D. Program Grant*
1. Grant Eligibility
2. Reserves for Indian Tribes
3. Grant Matching Requirements
4. Reallocation of ReserveFtatls
5. Development Grant Time PMmetand!
Grants
E. Other Issues
1. Technical Assistance
2. Alaska Native Villages
3. Trust Responsibility
IV. Other Regulatory Requirements
A. Compliance With Executive Order 12291
B. Paperwark Reduction Act
C Regulatory Flexibility Act
List of Subjects in 40 CFR Parts 35.114.141.
142.143.144.145, and 146
I. Statutory Authority
The ]one 19,. 1986 amendments; to the
Safe Drinking Water Act (42 U.S£. 300f
et seq.] added a new section 1451
entitled "Indian Tribes." The
amendments authorize EPA to treat
Indian.Tribes as States, delegate
primary enforcement responsibility for
the Public Water System (PWS) and
Underground Injection Control (U1C)
programs, and provide grant ancT
contract assistance to Indian Tribes
where appropriate. The amendments
requite EPA to-promulgate regulation*
by December 19,1987, specifying; those
provisions of the Act where it is
appropriate to treat an Indian Tribe as a
State.
Section 1451 of the Safe Drinking
Water Act establishes certain criteria an
Indian Tribe must meet before treatment
as a State is authorized: (1) "TheIndian
Tribe is recognized by the Secretary of
the Interior and has a governing body
carrying out substantial governmental
duties and powers." (2) "the functions to
be exercised by the Indian Tribe are
within the area of the Tribal
Government's jurisdiction;" and f3j "the
Indian Tribe is reasonably £xpected 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
rf * ' * (the Act] and of all applicable
regulations." The amendments state that
Indian Tribes "may not assume or
maintain primary enforcement
responsibility in a manner less
protective of the public health than such
responsibility may be assumed or
maintained by a State". However, an
Indian Tribe "shall not be required to
exercise criminal enforcement
jurisdiction for purposes of complying
wQh" the requirements for primary
enforcement responsibility.
Because funds are limited and will be
•Hocated on the basis of the Tribe's
workload many Indian Tribes may
decide it h not cost-effective or
otherwise beneficial to apply for
primary enforcement authority. For
these Tribes, and Tribes otherwise
deemed not eligible for "treatment as a
State", the EPA's Regional Offices will
continue to regulate public water
systems and injection wells, on their
reservations. This issue is discussed
more fully in Section HI (E)(l).
n. Background
A. EPA's Indian Policy
This rule is consistent with Federal
poficy statements regarding Indian
Tribes. On January 24,1983. President
Reagan signed a Federal Indian Policy
Statement providing for treatment of
Tribal governments on a government-lo-
go vernment basis and supporting the
principle of self-determination and local
decision-making by Indian Tribes. The
EPA responded to the President's
statement by developing a discussion
paper entitled "Administration of
Environmental Programs on Indian
Lands" in July 1983 and subsequently
adopted the EPA Indian Policy
Statement and Implementation
Guidance in November 1984.
The EPA's policy is "to give special
consideration to Tribal interests in
making Agency policy and to ensure the
close involvement of Tribal governments
in making decisions and managing the
environmental programs affecting
re&ervttuon idiiu&. in pi~aCiiCc. ZJ\A» 3
policy is to work directly with Tribal
governments as independent authorities
for reservation affairs and not as
political subdivisions of States.
B. Statutory and Regulatory Background
The Safe Drinking Water Act was
adopted on December 16.1974 (Pub. L
H*-SUJJ and amended in ~i5~7 (Pub. L.
95-190). 1979 fPub. L. 96-63). 1980 (Pub.
L 96-502), and 1966 (Pub. L. 95-353,. TIJC
statute was enacted to protect the
quality of drinking water supplies
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Federal Register / Vol. 53. No. 186 / Monday. September 26, 1988 / Rules and Regulations 37397
throughout the United States by
establishing four major programs: Public
Water System. Underground Injection
Control, Wellhead Protection, and Sole
Source Aquifer Demonstration
programs. The Public Water System
program establishes drinking water
quality standards; the Underground
Injection Control program protects
groundwater by regulating the injection
of fluids into the ground; the Wellhead
Protection program is designed to
protect aquifers from contamination
through controls of the area around
public water supply wells; and the Sole
Source Aquifer Demonstration program
is designed to protect "critical aquifer
protection areas" within aquifers
designated as "sole source aquifers."
The Safe Drinking Water Act allows
States to assume primary enforcement
responsibility (primacy) to administer
Public Water System and Underground
Injection Control programs. The Safe
Drinking Water Act also authorizes EPA
to support Public Water System and
Underground Injection Control programs
by providing financial and technical
assistance to develop and administer
these programs. Currently. EPA
administers the Public Water System
and Underground Injection Control
programs on Indian lands. However, the
1986 Safe Drinking Water Act
Amendments change the relative roles
and responsibilities of Indian Tribes and
the EPA by enabling Indian Tribes to
apply to EPA for "treatment as a State"
and, if approved, subsequently to apply
for primary enforcement responsibility
for the Public Water System and
Underground Injection Control
programs.
The EPA formed a workgroup in
August 1986 to draft regulations that
would implement the Safe Drinking
Water Act Amendments pertaining to
Indian Tribes. In October 1986. the
workgroup circulated draft material to
all Indian Tribes and States for
comment. On July 27,1987, EPA
proposed at 52 FR 28112 to amend the
National Drinking Water regulations
found at 40 CFR Parts 141.142, and 143;
the Underground Injection Control
regulations found at 40 CFR Parts 144,
145. and 146: the Public Water System
and Underground Water Source
Protection Grant regulations found at 40
CFR Part 35: and EPA's generic
permitting procedures at 40 CFR Part
124. These regulations will enable
Indian Tribes to be treated as States and
enable Tribes meeting the "treatment as
a State" criteria to apply for primary
enforcement responsibility and financial
assistance for the Public Water System
and Underground Injection Control
programs.
Copies or the proposed regulations
were sent to each Federally recognized
Alaska Native Village and Indian Tribe
prior to publication in the Federal
Register to enable Indian Tribes and
Alaska Native Villages additional time
to comment on the proposed rule. The
following final rule reflects the
comments on the July 27,1987 proposal
and the Agency's response.
C. Public Comments on the Proposal
The EPA requested comments on all
aspects of the July 27 proposal. A
summary of the major comments and the
Agency's response to the issues raised
ere presented in the following section.
The Agency's detailed response to the
comments received are presented in the
document "Response to Comments
Received on the Proposed Indian
Primary Enforcement Responsibility
Requirements of July 27,1987," which is
available in the public docket for this
rulemaking.
The EPA received 38 written
comments on the proposed rule. Twenty-
two written comments were received
representing the views of 32 Indian
Tribes and Alaska Native Villages, nine
written comments were received from
States or Federal Agencies, five written
comments were received from public or
professional organizations, and two
written comments were received from
private industry.
The EPA held three public hearings on
the proposed rule: August 17,1987 in
Washington. DC: August 25.1987 in
Spokane, Washington; and September 3,
1987 in Denver, Colorado. Fourteen
individuals representing eleven Indian
Tribes, one professional organization.
one industry, and one private individual
made oral statements at the public
hearings.
ID. Summary and Explanation of
Today's Action
A. Statutory. Regulatory and
Programmatic Framework
1. Statutory and Regulatory Framework
Under the existing Safe Drinking
Water Act requirements, Indian Tribes
are currently treated as
"municipalities." Today's rule
implements section 1451 of the Safe
Drinking Water Act which authorizes
EPA to treat an Indian Tribe as a State if
the Indian Tribe meets the eligibility
criteria. Once eligible, the Indian Tribe
may apply for primacy under sections
1413.1422, and 1425 of the Act. The
statute provides that Indian Tribes
which do not meet the criteria will still
be treated as municipalities with
Federal regulatory oversight.
States and eligible Indian Tribes may
apply for primary enforcement authority
for a Public Water System program
under section 1413 of the Safe Drinking
Water Act; a Class I. II, III. W, and V
Underground Injection Control program
under section 1422 of the Act; and a
Class I, HI, IV, and V Underground
Injection Control program under section
1422 and/or a Class II Underground
Injection Control program under section
1425 of the Act States and Indian Tribes
treated as States may also apply to
receive technical and/or financial
assistance for primary enforcement
responsibility under section 1443 of the
Act The EPA discusses later in this
notice how specific provisions of
sections 1442,1443, and 1444 affect
Indian Tribes.
With respect to the Underground
Injection Control program, EPA would
like to clarify that eligible Indian Tribes
can apply for primacy for the Class D
program under section 1425 of the Act
separately from primacy for the Class I,
m. TV, and V program. However, an
Indian Tribe would only need to apply
for "treatment as a State" once for the
Underground Injection Control programs
since an EPA determination of
"treatment as a State" will cover both
the 1422 and the 1425 programs.
A Tribe must show the appropriate
jurisdiction and capability and
otherwise qualify for treatment as a
State in order to subsequently apply for
Public Water System and Underground
Injection Control grants and primacy.
For example, if the Tribe is designated
for "treatment as a State" for the Public
Water System program, the Tribe would
then be treated as a State for only those
provisions of the Act and EPA
regulations relating to the Public Water
System program (e.g., SDWA sections
1412,1413,1414.1415,1416,1443(a)). The
Tribe would not be eligible to
participate in other programs or grants
contained in the Act until EPA approved
the corresponding separate application
for "treatment as a State." For programs
authorized by the Safe Drinking Water
Act EPA intends to approve Indian
Tribes for "treatment as a State" on a
program-by-program basis. As is the
case for States, an Indian Tribe must
have its own legal authorities to
administer a program under the Safe
Drinking Water Act; EPA cannot
delegate its own authority.
The EPA received several comments
suggesting that EPA should require
Indian Tribes to apply once for
"treatment as a State" for all EPA water
programs. The Agency finds that this
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37398 Federal Register / VoL S3. No. 186 / Monday. September 2t. 1968 / Rules and Regulations
comment haa merit. When all
regulations under me Safe Drinking
Water and Clean Water Acts stipulating
how Tribes shell be treated aa Slatea
are final the Agency will develop
procedures to implement a single
application procedure. Most
qualifications are of a genera) nature
and need only be provided when a Tribe
first applies for "treatment ai a State"
under the Safe Drinking Water or the
Clean Water Acts. However, the Agency
believes that even with a streamlined
application procedure, some
qualifications such, as §5 142.76(c),
142.56(d)t«). 145»76(cJ. andl45-56(dU.fl}
will need to be demonstrated Cor each
program. For example,, an Indian Tribe
may possess the requisite jurisdiction to
regulate public water systems on certain
lands but lack the authority to regulate
underground injection wells on these
lands. Consequent!;, the Agency has
revised the final rule to enable Indian
Tribes which have previously been
designated as a State to provide only
that information which is unique to the
Public Water System or Underground
Injection Control programs (H 142.76(1")
and M5-56(f}J.
2. Programmatic Framework
Today's rule establishes a three-step
process for an Indian Tribe to assume
primary enforcement responsibihy for
the Public Water System and
Underground Injection Control
programs. The first step is to receive
designation for "treatment a* a State."
The four-criteria an Indian Tribe must
meet for "Stare" designation for the
Public Water System and Underground
Injection Contra! programs are set forth
in 40 CFR MZ.72 and 145.52 respectively.
After receiving "State" dtesignefion for
a program, a Tribe is then eligible to
apply for a grant to develop the program
(the second step) and primacy fthe third
step). EPA anticipates that typically
Indian Tribes will apply for a
development grant before applying for
primacy. Furthermore. EPA expects that
most Indian Tabes will need &e faH
three and/or four years (this issue is
discussed nor* fully in section iH
to develop the corresponding public
Water System and Underground
Injection Control program*.
Consequently, EPA anticipates (hat
applications for primary enforcement
responsibility would not occur until near
the end of the program development
process.
Before a Tribe can receive a
development grant the Tribe mast
submit a deveiopmeni plan tot EFA
approval. This plan must outline in •
detail what activities the Tribe wiii
undertake to obtain primacy, how the
Tribe wiil carry out these activities, and
the specific time frame in which the
Tri'ue wilTaccampush these artivUies.
The EPA will- on an annual basis
evaluate Tribal adherence to me
development plan. The Regional
Administrator will not give a
continuation award to any Tribe unless
it demonstrates reasonable progress
towards astiiming irknary enforcement
responsibility within the three-year or
four year period.
Approximately six to twelve months
before completion of the program
development process. Tribes would
formally apply ta EPA for primary. If the
Tribe hits- fbilcwcd far deveiojurent
plan, it typinallp wouU meet the
programmatic requirements as well as
possess the necessary administrative
and technical capability to assume
primacy. Excepting the "treatment as a
State" designation, the process outlined
above ifl similar to the process States
currently use to abUic primacy.
However, as discussed later in. this
notice. Indian Tribes are afforded longer
deveiopmeni times than Stales in order
to gain tae necessary expertise to
assume primacy.
B Treatment of Indian Tribes as States
This rule creates procedures for
Indian Tribes to apply to EPA fur
"treatment as a Stare." After "State"
designation. Tribes are subsequently
eligible to apply for financial assistance
and primacy for the Public Water
System and Underground fcrjectron
Control programs. This rule creates
procedures set forth, m a new Subpart H
under Part M2 {National Primary
Drinking Water Regulations
Implementation), and a new Subpcrt E
under Part 145 (State CIC PsBgiwu
Requirement), each ttfcd: "Tteateient of
Indian Tribes a« States." Sutparts H
and E establish criteria Indian Tribes-
must meet for "treatment as a State".
list the information the Tribe must
provide in its application to EPA, and
provide a procedure for EPA to formally
review applications far "treatment as a
State." The requirements a Tribe must
meat under SubparU H and E are
identical.
ner iu» rtuc. •
treatment as a State if it meets the four
criteria listed in S S M2.72 and 145.52.
The four eligibility criteria are: (1) The
Indian Tribe nuct be recognized by the
Secretary of the Interior. (2) the Indian
Tribe must have a governing body
carry ii^ out «nh^iai»tial governmental
duties and powers over a defined area:
(3) ths Tribs ~"~- J*-JT~^«*-.'»*» that *e
public water systems and/or
unijergi uiciif injection wclk it •xti!
regulate are within the area of its
jurisdiction: and (4) the Tube most
demonstrate that it • "reasonably
expected to-be capable" of
administering [in a manner consistent
with the tenns and purposes of the Act
and all applicable negaialicna.) an
effective Public Water System and/or
Underground Injection Control program.
The EPA's review of the comments
revealed; general support toe tn»
proposed apptwdL to treating Tribes as
States. H*v«e«*r. tae support was
qualified: bj the view tha4 some criteria
for "treatment as a State" wen- tea
demanding. One of the commeatec*
argued that the criteria in Pacts 142 and
145 should be eliminated since there is
no statutory basis for the teqairtmeiu
that Tribes must go through a.
"prequalificatian" process that was not
required of States. However, section
1451f.a) of the Act clearly specifies that
the Agency is authorized to treat Tribes
as Stales and subsequently to award
grants and delegate primacy only to
those Tribes which meet the criteria for
"treatment as a State" set forth in
section 1451(b). The Agency must ensure
that a Tribe meets the statutory criteria
in section 1451ft>Kl) before it is
empowered.to treat the Tribe as a State
under the Act
Another commenter stated that the
statutory criteria contained in section
1451(b)[ll of the Safe Drinking Water
Act are "boiler plate." The commenter
stated that the language of 1451[b)(l)
was "" * * simply to reaffirm mat
Tribal primacy programs would be no
less rigorous than the States." This view
is based upon the commenier's- reading
of the legislative history and discussion
with "individuals involved" in the
development of the 1986 Amendments.
The Agency cannot presume that such
statutory language is superffaous. The
Agency finds nothing in the legislative
history *> support this interpretation of
section WBlfbrJfl). Moreover, ff this view
were correct. mere wwrfd hare been no
need to stale in section 1451f»f2) that
"Indian Tribes [may mot f assame or
maintain primary enforcement
respomsibffity in a marine- less
proteetpve of me pobfic health then- such
~er«nncAiK*y nay be cssumed or
maintained by a State."
1. Federaf Recognition
With icspect to Federal recognition as
an Indian Tribe, the Secretary of the
Interior periodically publishes a list of
Federally recognized Tribes. If the
applicant appears on Ibis liet it ne*d
nnly state that this is so. If ne TrikaJ
name does not appear on this Ksi
bsesnse the h»i has not been updated.
the Tribe can still provide appropriate
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Federal Register / Vol. 53. No. 186 / Monday, September 26. 1988 / Rules and Regulation* 37399
documentation lo EPA verifying that it is
Federally recognized.
2. "Substantial Governmental Duties
and Powers"
The second criterion that a Tribe must
satisfy to be treated a« a State is that
the Tribe has a governing body which is
"carrying out substantial governmental
duties and power*." The Agency
received several comments on this issue.
A number of the commenters suggested
that most Indian Tribes will be able to
meet this criterion because most Tribal
governments do. in {act, carry out
substantial governmental duties and
powers.
One cf the commenters stated that the
phrase "carrying out substantial
governmental duties and powers" was
only designed to "limit eligibility to
those Tribes that are Federally-
recognized" and that "(f)ew if any
Tribes do not carry out substantial
governmental duties and functions." The
same commenter stated that if more is
required than establishing that the
Indian Tribe is Federally recognized,
then the regulations should establish a
presumption that a "federally-
recognized" Tribe does carry out
"substantial governmental duties and
functions." The Agency cannot presume
that the statutory phrase "carrying out
substantial governmental duties and
powers" is superfluous. If the terms
"Federally recognized" and "carrying
out substantial governmental duties and
powers" are synonymous, then the latter
phrase would necessarily be redundant.
The Agency does not find any
evidence in the legislative history that
the only purpose of this language was to
limit the eligibility determination to the
issue of whether a Tribe was Federally
recognized. Moreover, the essential
significance of Federal recognition is
that a given recognized Tribe is eligible
to receive services and participate in
programs which are available only to
Indians because of their status as
Indians. Although Federal recognition
may imply that the Tribe has some form
of governmental structure (/.e.. has some
identity as a governmental entity), this
does not automatically mean that a
particular applicant which is a Federally
recognized Tribe is. in fact, currently
"carrying out substantial governmental
duties and powers."
The same commenter stated that the
Agency's use of the Indian
Governmental Tax Status Act (Pub. L.
97-4 73} in the discussion of this
requirement accompanying the proposed
rule (52 FR 28113) was inappropriate.
The commenter stated that the Internal
Revenue Service (IRS) has presumed
that Federally recognized Tribes carry
out "essential governmental functions"
(the language in the Tax Status Act),*
and thus IRS has established a
"conclusive ptesnmption" that a
Federally recognized Tribe does, in fact.
carry out "essential governmental
functions."
The EPA made reference to the Tax
Status Act because of IRS's
interpretation of the phrase "substantial
governmental functions"; the IRS
regulations state that the police power,
the power to tax, and me power of
eminent domain are the usual types of
basic governmental functions performed
by sovereigns. In construing the term
"carrying out substantial .governmental
duties and powers" in Section 1451(b)(l)
of the Safe Drinking Water Act EPA is
not bound by the decision of IRS to
presume that Federally recognized
Tribes carry out "essential
governmental functions", especially
since the purposes of the two statutes
are different.
The Agency believes that this second
criterion will not pose a barrier to
treatment of Tribes as States. Baaed on
the comments received, the Agency
believes that most Tribes will be able to
meet this requirement with relative ease.
The Agency recognizes that in general.
Federally recognized Tribes do carry out
"substantial governmental duties and
powers." However, the Agency has a
statutory obligation to make this
determination on a case-by-case,basis.
Therefore, the Agency does not believe
that it is appropriate to create a
presumption (whether conclusive or
returnable in nature) that all Federally
recognized Tribes are "carrying out
substantial governmental duties and
powers."
The comments expressed the general
view that the proposed requirements for
submission of documentation (eg..
Tribal constitutions, codes, etc.] would
be unduly burdensome and unnecessary.
Based on the comments received, the
Agency is relaxing the proposed rule so
as not to require such documentation
initially. Rather, the Agency will require
a narrative statement: (1) Describing the
form of Tribal government (2]
describing the types of substantial
governmental functions currendy
performed; and (3) identifying the source
of the authority to perform these
functions (e-g.. Tribal constitutions,
codes, etc.J. The Agency is, however.
continuing to require documentation lo
support the Tribe's claim of jurisdiction.
Additionally, the Agency is reserving
the right to request supplemental
information as it may deem necessary.
Finally, one commenter inquired as to
whether an applicant must be exercising
each of the types cf substantial
governmental functions listed in
{ 142.78(b)(l) and S 145.52(b)tl) fi«,
police powers affecting the health,
safety and welfare, taxation, and power
of eminent domain) to meet this
criterion. The Agency merely intended
the listed types of functions aj
examples. It is not necessary that an
applicant be currently performing each:
such function to qualify for "treatment
a> a State."
3. Jurisdiction
The third requirement a Tribe mast
meet for "treatment as a State" is that
the functions to be exercised by the
Tribe must be within the "area of the
Tribal Government's jurisdiction." EPA
interprets this statutory language io
mean that the Tribal government must
have both the subject matter and
geographical jurisdiction necessary to
administer a Public Water System and/"
or Underground Injection Control
program.
A number of commenters urged that
the Agency should automatically
assume (or establish a rebuttable
presumption to the effect) that a Tribal
government has the necessary
jurisdiction to administer and enforce
either the Public Water System program
or the Underground Injection Control
program within the exterior boundaries
of the particular Tribe's reservation. The
concern of the commenters appears to
have been two-fold. First, many
commenters expressed the view that
Tribes should not lace the burdeo of
proving their jurisdiction, i.e.. that they
should receive the same general
recognition of sovereign authority that
EPA accords States when reviewing
applications for primacy. A related, but
different, concern is that EPA should not
establish a process for resolving
jurisdictional disputes that allows States
to impede Tribal assertions of
jurisdiction over reservation lands. This
second concern is addressed in Section.
nifBNS) of this preamble.
The Agency recognizes that there is
substantial support for the general
proposition that a Tribal government
has jurisdiction lo administer a Public
Water System and/or Underground
Injection Control program within the
exterior boundaries of the Tribe's
reservation. The Agency does not -
believe, however, that it is appropriate
to establish a rebuttable presumption
concerning Tribal governmental
jurisdiction on reservation lands. EPA la-
under a duty to ensure that all public
water systems and underground
injection control activities are being
regulated by EPA. the Tribes, or States.
Just as when EPA considers an
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37400 Federal Register / Vol. 53. No. 186 / Monday. September 26. 1986 / Rules and Regulations
application for State primacy. EPA rnust
not delegate enforcement responsibility
to a Tribe unless the Tribe can
adequately show it possesses the
requisite jurisdiction. Establishment of a
presumption regarding Tribal
jurisdiction would not be protective of
human health and the environment since
Tribal authority may, in some instances.
be in question.
The inappropriateness of establishing
a presumption is exemplified by the
comments of the Penobscot Tribe of
Maine requesting that EPA promulgate
special regulations to enable the
Penobscot Tribe to be treated as a State
for purposes of both the Public Water
System and Underground Injection
Control programs. This request is based
on the fact that under the terms of the
Maine Indian Land Claims Settlement
Act of 1980 (25 U.S.C. 1721 et seq.) and
the Maine Implementation Act (30 Me.
Rev. Stat. Ann. section 670 et seq. (1979.
as amended 1981}) the State has limited.
but not clearly defined, regulatory
jurisdiction over the lands within the
exterior boundaries of the Tribe's
reservation, presumably, the other two
Federally recognized Tribes which were
parties to the Maine Settlement Act. the
Passamaquoddy Tribe and the Houllon
Band of Maliseet Indians, are subject to
the same jurisdictional infirmity. In
addition, different jurisdictional
problems may arise with respect to
complex ownerships potentially
involving Federal. State, and Tribal
jurisdiction within so-called
"checkerboard areas" (i.e.. fee lands
owned by non-Indians or non-Indian
entities interspersed with Indian owned
lands within the exterior boundaries of
reservations).
The request that a given Tribe
establish its jurisdiction for either a
Public Water System program or an
Underground Injection Control program
is not meant to be a barrier or deterrent
to that Tribe's attainment of primacy.
Rather, it reflects the need to identify at
an early date the presence or absence of
a key element to effective
administration of either program. The
EPA recognizes its statutory
responsibility not to delegate
eufurcemeiii euiliuriiy iu o Tri'ue unless
the Tribal government possesses the
necessary regulatory authority.
Therefore, EPA believes that it would be
inappropriate to develop special
procedures to allow Tribes which do not
meet the statutory criteria under section
1451 (a) nonetheless to be treated as a
State as requested by the Penobscot
lacks the statutory authority to make
funds available under SfcUioii 1433 to
Tribes which do not qualify for
"treatment as a State", as further
requested by the Penobscot Tribe.
Several"commenters suggested that
for jurisdictional determinations the
Agency should include a definition of
"Indian lands" in the regulations which
equates Indian lands with "Indian
Country." The pertinent text of 18 U.S.C.
1151 is as follows:
' * * the term "Indian Country", as used
in this chapter, means (a) 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-wey running through
the reservation, (b) all dependent Indian
communities within the borders of the United
States whether within the original or
subsequently acquired territory thereof, and
whether within or without the limits of a
state, and (c) ell Indian allotments, the Indian
titles to which have not been extinguished,
including rights-of-way running through the
same.
One of the commenters noted further
that the draft Underground Injection
Control Direct Implementation
Regulations (52 FR 17684) proposed to
adopt the 18 U.S.C. 1151 definition and
that, to be consistent, it should also be
used in these regulations.
The EPA's recognition that there is
substantial support for the general
proposition that a Tribal government
has jurisdiction to administer a Public
Water System and/or an Underground
Injection Control program within the
exterior boundaries of a Tribe's
reservation does not require the Agency
to adopt a definition of "Indian lands"
which equates this term with the term
"Indian Country."
The adoption of the "Indian Country"
definition within the Underground
Injection Control Direct Implementation
draft regulations reflects EPA's basic
concern with ensuring that all
underground injection activities on all
lands, including Indian lands, are
regulated. By contrast, the basic concern
addressed by these regulations is to
allow an eligible Indian Tribe to
regulate public water systems and
underground injection activities located
only on those lands over which the
Tribe adequately demonstrates its
jurisdiction, in shon. the underlying
concern addressed by these regulations
is not as broad as the basic concern
addressed by the Underground Injection
Control Direct Implementation proposed
regulations of May 11.1987.
Furthermore, EPA believes that
adoption of the proposed definition of
"Indian Country" would tend to
. 11... \ . -»... *
gcuciaie auuinulidi jiAJlBunuuildl
disputes. This is because the term
"Indian Country" encompasses areas
which are "dependent Indian
communities." The issue of whether a
particular area constitutes a "dependent
Indian community" is inherently
complex; what constitutes the proper
resolution of this issue will be the
subject of sharply divergent, views
among the affected governmental
entities. To effectively increase the
number of potentially disputed areas
would not be in the best interest of the
public health. Also, regulated entities
carrying on activities within disputed
areas would be presented with
uncertainty as to whether a particular
Indian Tribe or another governmental
entity was the proper regulatory
authority.
Finally, the comments received from
Indian Tribes indicate a basic concern
with obtaining authority to administer
Public Water System and Underground
Injection Control programs within the
exterior boundaries of their respective
reservations. The Agency does not need
to adopt the definition of "Indian
Country" to meet this basic concern.
EPA notes that this rule is not intended
to. and does not, preclude a Tribe from
applying for "treatment as a Stale" with
respect to any lands over which it
believes it has jurisdiction.
To assist EPA in reviewing the Tribe's
assertion of jurisdiction, the Agency is
adding a requirement to §§ 142.76(c) and
145.56(^1181 the Tribe submit a
statement signed by the Tribal Attorney
General or an equivalent official
explaining the legal basis for the Tribe's
regulatory jurisdiction to administer a
Public Water System and/or
Underground Injection Control program.
The statement is similar to the
statement currently required of States
applying for Underground Injection
Control primacy (40 CFR 145.24}. It is a
logical supplement to the jurisdictional
documentation mentioned in
!§ 142.76(c) and 145.56(c) of the
proposed rule, which is still required
under this final rule (a map. copies of
tribal codes and ordinances, etc.) The
Attorney General's statement with the
supporting documentation will assist
EPA in verifying that the Tribe has the
necessary jurisdiction to run a Public
Water System and/or Underground
Injection Control program.
4. Tribal Capability
The fourth criterion that a Tribe must
meet is that in the Administrator's
judgment it must be "reasonably
expected to be capable" of
administering an effective program. In
i. ». ». . .. . % ..1 _ -
uicsiujig 1115 ueieimiimuuij at> tu v\ncmcj
a Tribe has shown that it is "reasonably
expected to be capable" of
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Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations 37401
administering an effective Public Water
System and/or Underground Injection
Control program, the Administrator will
consider six factors: (1) the Tribe's
previous management experience: (2)
existing environmental or public health
programs administered by the Tribe: (3)
its accounting and procurement systems;
(4) the mechanism(s) in place for
carrying out the executive, legislative,
and judicial functions of the Tribal
government: (5) the relationship
between the owner/operator of the
public water systems and/or
underground injection wells and the
administrative agency of the Tribal
government which is. or will be.
designated as the primacy agent: and (6)
the technical and administrative
capabilities of the staff to administer
and manage the Public Water System
and/or Underground Injection Control
program(s) or a plan describing how the
Tribe intends to obtain the additional
technical and administrative staff
necessary to manage either program.
One commenter noted that the Agency
should look at general management
experience. EPA agrees and emphasizes
that the description of the Tribe's
previous management experience may
include information which indicates that
the Tribe has the general managerial
expertise tc administer an effective
Public Water System and/or
Underground Injection Control program.
One source of information that a Tribe '
may use to demonstrate managerial
capability is administration of programs
and services under contracts authorized
by the Indian Self-Determination and
Education Assistance Act (Pub. L. 93-
638). the Indian Mineral Development
Act (Pub. L. 97-382). and the Indian
Sanitation Facilities Construction
Activity Act (Pub. L. 86-121).
The Agency recognizes that many
Tribes may not have experience in
administering environmental programs.
Although lack of this experience will not
preclude a Tribe from demonstrating the
required capability, the presence of such
experience will be of significant
importance to the Agency.
Some comments were received with
respect to the proposed requirement that
a Tribe describe the "technical and
administrative capabilities of the staff to
administer and manage an effective"
Public Water System and/or
Underground Injection Control program.
The commenters stated that few Tribes
have existing technical staff to operate
such programs. Therefore, in response,
the Agency is changing S J 142.72,142.76,
145.52. and 145.56 to require that a Tribe
show that it has either the necessary
staff or a viable plan to acquire the
additional technical and administrative
expertise. This presumes that while a
Tribe may not yet possess all the
necessary existing technical and
adminstrative expertise to administer
these programs at the outset, at a
minimum, it must possess the
administrative and technical expertise
necessary to begin development of a
Public Water System and/or
Underground Injection Control program.
The EPA. in its July 27 notice,
proposed to require a Tribe to supply
information on its accounting and
procurement system. The purpose of this
requirement is to make an applicant
demonstrate its capability to track
program funding. A description of this
function may be included in the Tribe's
discussion of previous managerial
experience. This requirement is
unchanged from the July 27 proposal.
The EPA is requesting information on
the Tribe's executive, legislative, and
judicial functions to assure that the
Tribe has the capability to: enact
enforceable public water system and/or
underground injection control
regulations, administer and enforce
effectively those regulations, and
adjudicate alleged violations of those
regulations.
Some commenters felt that it is
inappropriate for the Agency to expect
Tribes to have separate executive,
legislative, and judicial branches, as do
State governments. The Agency is not
requiring that Tribal governments have
the same structure as State
governments. On the other hand, the
Agency believes it is appropriate to
request Tribes to make a showing that
their respective Tribal governments do,
in fact, carry out the legislative,
executive, and judicial functions
necessary to administer effectively a
Public Water System and/or
Underground Injection Control program.
The EPA's evaluation of the Tribe's
capability will also consider the
relationship between the existing or
proposed Tribal agency which will
assume primary enforcement authority
and the owner/operator of the public
water systems and/or the underground
injection wells the agency would
regulate. A common situation among
Indian Tribes is that the Tribe is the
owner/operator of the public water
systems and/or the injection wells.
Tribal ownership of the public water
systems or underground injection wells
could result in a conflict of interest if
EPA delegated primary enforcement
responsibility to the Tribe, since the
Tribe would be regulating itself.
Many comments were received
indicating that Tribes believe they
would not be in a conflict of interest
situation if they owned and operated the
public water systems and/or the
underground injection wells they would
be regulating under primacy. The
preamble to the proposed rule indicated
that Tribes would have to resolve the
owner/operator conflict in order to
receive primacy, but not for treatment as
a State designation. The Agency still
believes that the independence of the
regulator and regulatee is necessary' to
best assure effective and fair
administration of these programs.
However, the resolution of the matter
is not meant to require the Tribes to
divest themselves of these systems (i.e.,
sell the systems). As stated in the
proposed regulations, a possible solution
to the problem could be the
development of a Tribal utility authority
or an independent environmental
commission. Failure to resolve the
owner/operator conflict will not
preclude a Tribe from being eligible for
'Treatment as a State", but is intended
to signal Tribes at an early date about a
potential bar to primacy that must be
resolved. Resolution of the regulator/
regulatee issue relative to primacy will
be evaluated on a case-by-case basis.
One of the commenters pointed out
that States are sometimes owners/
operators of public water systems over
which they have primary enforcement
responsibility. Examples the commenter
pointed out include State universities, •
prisons, and hospitals. The Agency is
aware of this situation; however, the
actual number of these types of systems
in States is quite small in proportion to
the total inventory. In addition. State
infrastructures are typically such that
the State agency operating the State
public water systems is not the same
State agency that has primary
enforcement authority. This is in
contrast to the typical situation
exhibited by Indian Tribes which own
and operate most or all of the public
water systems on their reservations.
The Agency considered in its July 27
proposal whether the eligibility and
primary enforcement requirements
would tend to exclude the smaller
Tribes. To address the concerns of small
Tribes, as reflected in several of the
comments. EPA will consider
applications by a group or consortium of
Tribes within the same geographical
area. However, the applicant must still
meet all the eligibility requirements to
be treated as a State, particularly the
furisdictional requirement In response
to a comment, EPA in this rule will
include a definition of "Interstate
Agency" in { 142.2 for the Public Water
System program. A definition.
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37402 Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations
"Interstate Agency" for the
Underground Injection Control prop-em
was previously proposed.
As slated earlier in thic notice, many
Tribes, particularly the smaller Tribe*
may feel that it is not cost-effective or
otherwise beneficial ta apply for
primary enforcement responsibility
because of finding and workload
consideration. The Agency anticipates
that, ki general, a certain mininum size
(as determined by tribal populations, the
size of the regulated community, and the
number of entities regelated) will prove
necessary for Tribe* to effectively and
efficiently administer these programs.
The EPA further anticipate* that, in
general, the mailer Tribes win have
difficulty obtaining the required
expertise to adutini*ter effectively these
programs. Consequently, the Agency
encourages smaller Tribes to consider
consortiums or intertribal agencies as
ways to obtain the necessary expertise
to administer these programs and to
make the attainment of primacy cost-
effective and beneficial to the Tribe. The
Agency will consider and evaluate all
applications fl receives, regardless of
the applicant's size, on a case-by-case
basis.
5. Process for Evaluating Application*
Within thirty days after receipt of a
Tribe's complete application for
treatment as a State (which has all th«
information required in 1142.76 and/or
{ 145.56), EPA wffl notify appropriate
governmental entities (e.g.. neighboring
Tribal and State governments) of the
receipt of the application and the
substance of the Tribe's ptrisdictkmal
assertions. Each of the governmental
entities will have thirty days after
receipt of the notice to submit comments
to EPA. Comments wifl be limited solely
to the issue of the Tribe's assertion of
jurisdiction. EPA will not consider
comments directed to whether me Tribe
meets EPA's other requirements for
treatment as a State.
If an Indian Tribe's asserted
jurisdiction is subjected to a competing
claim, the Administrator, after
consultation with the Secretary of the
Department of the Interior, or kis
desigaee, and in consideratiOB of
comments received, will evaluate the
validity of a ay challenge to the Tribe's
jurisdicttonal claim for the Public Water
System and/or Underground injection
Control programs and make a final
decision on the Tribe's jurisdictional
claim. If the Administrator concludes
that the Tribe has not adequately
demonstrated its jurisdiction with
respect to an area in dispute, then Tribal
primacy will be restricted accordingly.
Any such determination by the
Administrator is not a determination of
a Tribe's general regulatory jurisdiction,
but only jurisdiction relative to
administration of-the Public Water
System and/or Underground Injection
Control programs.
This procedure does not imply that
States or Federal agencies bare veto
power over Tribal applications for
"treatment as a State." Rather, the
procedure is simply intended to ensure
that the Tribe has the necessary
jurisdiction to administer a Public Water
System and/or Underground Injection
Control program.
The EPA received several comments
stating that the Agency should approve
all applications for "treatment is a
State" within a specified time period
(i.e.. 90 or 120 days). Though the Agency
agrees with the intent of the suggestions,
it does not believe that it will be
possible to approve or disapprove all
appBcations far "treatment as a State"
within a designated time frame. The
Agency ruDy anticipates that there will
be instances where the jurisdictional
and capability determinations will
require the Agency to go back to a Tribe
for clarification or additional
information. Likewise, the Agency's
experience with State primacy
applications for the Underground
Injection Control and Pub&c Water
System programs indicates that at times
many meetings and communications
between EPA and a State are necessary
before all requirements are met The
Agency believes tbet the same process
of negotiation and communication with
Tribes will be beneficial in ensuring that
Tribes meet the "treatment as a State"
criteria in an expeditious manner.
If the Administrator determines that a
Tribe meets all the requirements of
Subpart H and/or Sobpart E • Tribe is
then eligible to apply for a development
grant and primary enforcement
responsibility for the Public Water
System aid/or Underground injection
Control programs and associated
funding to administer effective
programs.
One commenter suggested that
applications for "treatment as a State"
and for development grants occur at the
same time. AB applicant should note
that EPA will not award a development
grant until the applicant is found eligible
to be treated as a Slate. Though EPA
sees ao reason to bar an applicant from
applying for "treatment as a State" and
for a development grant simultaneously,
it cautions applicants to contact the
appropriate EPA Regional Office to
ensure that the requirements to be
treated as a State and to receive a
development grant are understood.
C. Requirements for Primary
Enforcement Responsibility
1. Tribal Primacy Requirements
As stated above. Tribes which meet
the requirements for treatment as States
aw etigibke to apply for primary
enforcement responsibility for these
programs. The EPA hss promulgated
regulations specifying requirements for
primary enforcement responsibility for
the Public Water System program (40
CFR Part 142) and the Underground
Injection Control program (40 CFR Part
145). States and Indian Tribes treated as
States mnsl meet the mimrmrm program
requirements specified in these parts for
EPA to grant primary enforcement
responsibility.
The EPA considered m its Joly 27
proposal which requirements currently
applicable to States seeking primacy
shook) apply to Indian Tribes. Section
1451{bKZ) of the Safe Drinking Water
Act is instructive. It states that
"[njoming in this Section shalf be
construed to allow Indian Tribes to
assume or maintain primary
enforcement responsibility for public
water systems or for underground
injection control in a manner less
protective of the health of persons than
such responsibility may be assaawd or
maintained by a State," In the Jury 27
Federal Register notice. EPA proposed
that except for the laboratory
certifies lion and the criminal
enforcement responsibility
requirements, as described below, all
primary enforcement responabibtT
requirements for Public Water System
and/or Underground Injection Control
programs applicable to States also apply
to Indian Tribes. The Agency in this rule
retains the same requirements far Indian
Tribes as described in the July 27
proposal
One of the commenter* expressed
coacem about the ability of non-Indians
generally to participate in the Tribal
regulatory decision-making process. The
EPA points out mat the requirements for
primacy imclude the provisions for
public participation by the affected
population in the Tribal regulatory
decision-making process (See 40 CFR
Part 124). Specifically, the applicant
must afford public participation in
regulatory decisions pertaining to. but
not limited to. ndemaking, permit
hearings, and aquifer exemptions. This
will ensure that the concerns of the non-
Indian portion of the affected population
are brought to the attention of the Tribal
government It should also be noted that
the Indian Civil Rights Act of 1968 (Pub.
L. 90-284) affords non-Indians as well as
Indians certain protections which are
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Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations 37403
similar in nature to "due process" or
"equal protection" safeguards.
Four commenters stated that the
primary enforcement requirements
proposed for Tribes were more stringent
than those that States must meet. The
EPA disagrees. As stated in the July 27
proposal. Tribes must meet the same
requirements as States except in the
areas of laboratory certification and
criminal enforcement responsibility. The
commenters may have misunderstood
the Agency's July 27 proposal by
confusing the requirements Tribes must
meet for "treatment as a State" with the
primary enforcement responsibility
requirements. These two sets of
requirements are separate and distinct.
Section 1451{b)(l) of the Act effectively
requires the Agency to develop
regulations that enable Tribes to be
treated as States. The Agency has done
this by establishing the criteria Tribes
must meet to be treated as States under
subparts H and E. The Agency fully
intends that once Tribes do meet the
regulatory requirements for "treatment
as a State" that they will be treated in
the same manner as States except where
noted in this rule (i.e., grant match
requirements, developmental grant time
frames, primary enforcement
responsibility requirements, etc.).
Several commenters stated that EPA
should be flexible in the primary
enforcement requirements that Tribes
must meet. They stated that some Tribes
may not be able to meet all the
requirements and that EPA should
consider a waiver of some primacy
requirements to enable the applicant to
receive primacy. The EPA believes that
additional flexibility 'oevor.d waiver of
the criminal enforcement and laboratory'
certification requirements would be
inappropriate and might be less
protective of the public health and the
environment. Two commenters
suggested that Indian Tribes should be
able to apply for "partial primacy" for
certain parts of the program(s). The
EPA's policy for the Public Water
System and Underground Injection
Control programs is to delegate primary
enforcement responsibility for all
program activities and not allow partial
program delegations. Consequently.
when an Indian Tribe or State applies
for Public Water Supply primacy under
section 1413 of the Safe Drinking Water
Act. it must assume all the requirements
found in § 142.10. Likewise, when an
Indian Tribe applies for Underground
Injection Control primacy programs
under sections 1422 and/or 1425 of the
Safe Drinking Water Act, it must assume
all the requirements found in {§ 145.11.
145.12.145.13 (as amended for Indian
Tribes), and 145.14. However, a Tribe
may apply for primacy over a particular
class of injection wells without applying
for primacy over other classes.
2. Primacy Requirements Not Applicable
to Tribes
The Agency has determined that it is
inappropriate to require Tribes to meet
the primary enforcement responsibility
requirements found in { 142.10(b)(3),
development of a laboratory
certification program, and 1145.13
pertaining to criminal enforcement
jurisdiction. Section 142.10(b][3) requires
a State seeking primacy for a Public
Water System program to establish and
maintain a State program for the
certification of laboratories conducting
analytical measurements of drinking
water contaminants. To comply with the
statute, EPA is amending { 142.10(b)(3)
so that an Indian Tribe will not have to
establish a separate or independent
laboratory certification program in order
to receive primary enforcement
responsibility. If a Tribe chooses to
avail itself of the laboratory certification
waiver provision, EPA will require each
Tribe to demonstrate that It has access
to a State or EPA certified laboratory to
conduct all required analyses through
formal agreements or other
arrangements.
The EPA received four comments on
this issue, each supporting the
laboratory certification waiver. The
commenters stated that the laboratory
certification requirements could bar
small tribes from seeking primacy and
that, in general, most Tribes would not
be able to develop a laboratory
certification program. The EPA agrees.
The waiver in i 142.10(b)(3) is
promulgated as proposed.
Section 145.13 of the Underground
Injection Control regulations requires
that a State have criminal enforcement
authority to obtain primacy. Likewise,
{ 142.10(b)(vi) requires that a State have
authority to assess civil or criminal
penalties to obtain primacy for Public
Water System programs. EPA interprets
section 1451 to mean that criminal
enforcement jurisdiction shall not be a
requirement for granting primacy to
Indian Tribes. Therefore, this rule
amends { 145.13 to state that Tribes will
not be required to possess and/or
exercise criminal enforcement authority
as a condition of obtaining primary
enforcement responsibility. Instead.
{ 145.13 requires Tribes to develop a
memorandum of agreement with EPA to
refer criminal enforcement matters to
the Administrator in an appropriate and
timely manner. EPA is not making a
similar change to § 142.10, since for
Public Water System primacy a Tribe
need not have criminal enforcement
authority.
All commenters favored this change
though two commenters expressed
concerns about how this process will
work. One commenter voiced the •
concern that care should be taken to
ensure that specific language is
developed detailing conditions under
which a Tribe will refer criminal
enforcement cases to EPA. The EPA
shares this concern and will require that
all proposed memoranda of agreement
be submitted simultaneously with the
primary enforcement responsibility
application to ensure that criminal
enforcement cases are referred in a
timely manner. Another commenter
wrote that the criminal enforcement
referrals in { 145.13 should not bar or
remove Tribal courts from the
enforcement process. The EPA agrees
and believes that the process outlined in
this rule will not interfere with
authorized Tribal enforcement activities.
Tribes retain their own authority to
pursue criminal enforcement cases. The
EPA points out that a Tribe's criminal
enforcement jurisdiction does not
extend to non-Indians unless Congress
has explicitly so provided by treaty or
statute. The procedure outlined in
( 145.13 does not diminish Tribal
criminal enforcement authority.
5. Administrative Options Available to
Tribes
Several commenters urged that these
regulations should allow Indian Tribes
flexibility to meet the primary
enforcement requirements. For example.
several of the comments stated that
Tribes should be able to meet program
requirements through contracts, grants,
or memoranda of agreement with States
or the Indian Health Service. The EPA
agrees that there are various
administrative and organizational
options available to Tribes in
implementing the Public Water System
and Underground Injection Control
programs. However, the Agency
cautions that not all program functions
can be accomplished through a contract
grant, or a memorandum of agreement
For example, EPA will not approve
delegation of the enforcement function
through a contract or memorandum of
agreement because that would be
inconsistent with EPA's primacy
policies. For activities such as plan
review and inspections, the Tribe may
consider other administrative
arrangements. Tribes should be aware
that EPA will require the Tribe to have
the basic "in-house" capabilities to
attain and administer Public Water
System and/or Underground Injection
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37404 Federal Register / Vol. 53, No. 186 / Monday. September 26. 1988 / Rules and Regulations
Control programs. Administrative
arrangements which result in "paper" or
"shell" programs will be unacceptable to
the Agency.
Three commentere wrote that EPA
should establish "core primacy
requirements" for all EPA programs so
Tribes will only have to apply a single
time for ell Agency programs. The EPA
believes that this is administratively
infeasible since Agency programs have
different statutory bases and
consequently different program
require meats.
4. Primacy Technical Assistance
Two ccmzoeBters stated that EPA has
a statutory obligation under section 1442
of the Rafp Drinkiag Water Act to assist
Tribes to obtain "regulatory primacy"
by providing technical assistance. To
the extent that funds are available for
technical assistance to Tribes under
section 1442. the EPA win give eligible
Tribes (i.e.. Tribes which have met the
"treatment as State" criteria] priority to
help them obtain "regulatory primacy"
for the Public Water System and the
Underground Injection Control
programs. After addressing the needs of
eligible Tribes, the Agency will consider
providing Tribes which do not meet the
requirements for "treatment as a State"
with technical assistance. Regardless of
whether funds are available, it is the
responsibility of the Tribes to gain the
basic capabilities to meet the "treatment
as a State" criteria.
To ensure that eligible Tribes receive
adequate technical assistance, the
Agency, in fiscal year 1968 has allocated
two additional staff positions in the
Public Water System Program to provide
technical and programmatic assistance
to Tribes which are developing or
applying for primary enforcement
responsibility programs. In subsequent
years the Agency wifl reevahjate its
Public Water System and Underground
Injection Control program staffing needs
in Kght of the applications received.
D. Program Grants
The requirements for program wants
to States are found at 40 CFR Part 35.
Subpart A. This nil* addresses, grant
eligibility, initial reserve sr set-aside
fund* for ose on Indian buds, grant-
match requirements, grant reallocations,
and grants to develop Indian Public
Water System and/or Underground
injection Control programs.
In both the Public Water System and
Underground Injection Control
programs. EPA allocates available funds
or. the bccis cf 2 forwjl? f-nnffres*
appropriates a fixed amount of funds for
ihese programs each yea;. The amount
appropriated in any year may not equal
the amount desired by eligible States or
Tribes treated as States. As discussed
later in this notice, this situation often
accounts forthe facTthat Stales actually
contribute more to the program costs
than the required minimum of 2S°-i. It is
important to note that the dtr.ial of a
g*an*. application submitted by ar. Indian
Tribe treated as a State or a State is not
a denial of a right or an entitlement.
1. Grant Eligibility
This rule expands the list of
jurisdictions eligible to receive Public
Water System and/or Underground
Injection Control grants to include
Indian Tribes meeting the requirements
of Subparts H and/or E (Treatment of
Indian Tribes 33 States). It implements
section 1451 of the Safe Drinking Water
Act which authorizes EPA to make grant
and contract assistance available to
eligible Indian Tribes.
One commenter stated that there is no
legal justification for requiring that
Indian Tribes meet the criteria for
"treatment as a State" in order to apply
lor program grants. However. EPA does
not interpret sections 1443 and 1451 as
allowing the issuance of a section 1443
grant to a Tribe before it rs designated
as a State.
2. Reserves for Indian Lands
Beginning in Fiscal Year 1988
(October l.}988) EPA annually will
reserve up to 3% and 5% respectively of
the Public Water System and
Underground Water Source grant funds
for development or primacy grants to
eligible Tribes and to EPA Regions for
direct implementation purposes on
Indian lands. It is EPA's intent that once
the reserve amounts are established
each year that these funds will only be
used for development or primacy grants
by Indian Tribes or by EPA Regions for
use on Indian lands. EPA intends to use
these funds for Indian progress even if
tbe February 1 deadline passes and the
funds are reallocated. This deadline is
further discussed in section foor which
addresses reailocabon.
EPA intends to make development or
primacy grants available to eligible
Tribes according to an equitable
formula. The Agency is now considering
several formula options. A possible
option includes applying to the Tribes
the same formula now used for States.
The current formula for tbe PWS
program assigns 10% of the available
funds to land area. 30% to population.
48% to community water systems and
12% to non-community water systems. If
this option is used, a particular Tribe's
grant would be determined by adding Us
percentage of the national fnriiqp total
for each factor. For the U1C program, the
assigned weights are 10% to land area.
10% to population. 14V to Class 1 wells.
41*. to Class D wells. 10% to Class 111
wells. 4% to Class IV wells and 11% to
Class V weils. Again, individual grants
are based on that recipient's percuitax'-
of the national total for each factor.
While EPA's intention is to allocate
available grant hinds by formula at the
beginning of each fiscal year, in the first
few years alter primacy becomes
possible for Indian Tribes it will be very
difficult to anticipate tbe mnber of
Tribes that may become eligible for
grants during the year. Therefore,
initially EPA will reserve or set
sufficient grant funds aside K assure
that funds will be available to -aake
grants to Tribes that qualify. This
reserve or set-aside will also cover
EPA's costs of implementing the two
programs on Indian lands.
In the July 27 Federal Register notice.
EPA proposed to limit the reserve to not
more than 3% of Public Water System
and 5% of the Underground Injection
Control program grants. Many
commenters stated that the proposed set
•sides (or resenres) of up to 3% and 5%,
respectively, were inadequate. A
number of commenters stated that the
reserves should be minimum amounts
rather than maximum amounts. Five
commenters stated the proposed set
asides were too great and would
adversely impact existing State
programs. The EPA believes that the
reserves for Indian lands as proposed on
July 27 are adequate and at the same
time will not have an adverse effect on
existing State programs. Historically,
EPA has spent about 1% of the Public
Water System and just over 2.5% of the
Underground Injection Control program
grants for its irnpJementatton of these
programs on Indian lands. Tbe proposed
limits of 3% and 5% represent an
increase over the historical levels and
recognize that Indian Tribes may need
addrbonal resources to develop and
administer primacy programs.
In the hily 27 proposal, EPA estimated
that 10-12 Tribes may meet the
requirements for primacy. EPA has
further refined its estimates based upon
Regional data. EPA believes that 25
Tri'ucS may apply for sr.d receive
"treatment as a State" designation
within the next three years. These
Tribes would thus be eligible to apply
for financial assistance. However, the
Agency still anticipates that orriy 10-12
of these Tribes will apply for and
receive primacy within the next three •
years.
uiCiudcd i£ the rscord for *h'e rulp is
an analysis of bow the 25 Tribe*
estimated to IP.ZPJVS "treetmsnt as s
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Federal Register / Vol. 53, No. 186/Monday. September 26, 1988 / Rules and Regulations 37405
State" within the next three years and
the 10-12 Tribes estimated to receive
primacy within the ntxt three years
correlate with the 3% and 5% limits
selected as the Public Water System and
Underground Injection Control reserves.
In l;gh! of the foregoing estimate and
additional analysis the Agency
conducted, the EPA believes that the
reserves for Indian Tribes of "up to 3"i"
a::d "up to 5%" are sufficient. The
Agency intends to reevaluate the
funding levels within three years (or
sooner if necessary) to ensure their
adequacy.
EPA does not anticipate that the full
3% and 5% reserves will be fully utilized
by Indian Tribes unless and until each
Indian Tribe which might qualify for a
grant has applied for and received
financiul assistance for these programs.
EPA does not anticipate, at least
initially, that all potentially qualified
Indian Tribes will apply for these
programs.
The EPA believes that the Public
Water System and Underground
Injection Control reserves of "up to" 3%
and 5% for Indian Tribes will not
adversely affect existing State programs.
The EPA'notes that the Public Water
System and Underground Injection
Control grants were increased by
S5.000.000 and S3.000.00a respectively.
in Fiscal Year 1988 over the Fiscal Year
1986 levels. Moreover, given the
relatively small number of Tribes which
are likely to apply for and receive grants
and the small amount of funds which
may be reserved compared to the total
State allocation, EPA believes that the
reserves will not adversely affect
existing State programs. Consequently.
the reserves established for Indian
Tribes are unchanged from the July 27
proposal.
3. Grant Matching Requirements
In the July 27 notice, EPA proposed
that Tribes meet a 25 percent match
requirement In addition, the Agency
noted that Tribes could use in-kind
contributions and Federal matching
funds authorized by statute as the Tribal
match. The EPA also proposed reducing
the Tribal match to ten percent in the
event that the Tribe does not have
adequate funds to meet the 25 percent
match requirement.
Several comments were received with
respect to the proposed matching
requirements. Several commenters urged
the Agency to either eliminate the
matching requirement for Tribes or to
reduce the current 25 percent minimum
applicable to States to ten percent or
less. These commenters noted that many
Indian Tribes lack a revenue base and
thus lack the ability to fund these
programs.
Other comrr.enters pointed out that
States" fre'querffly match Federal grant
funds beyond the minimum
requirements. This observation is
consistent with the study conducted by
thr Association of State Drinking Water
Administrators as reported in its recent
draft report entitled "A Survey of
Resource Needs of State Drinking Water
Programs" of April 16,1987. The
Association conducted an analysis of
the actual percentage of program costs
contributed by EPA and the primacy
States in the Public Water System
program. This analysis show* that, on
average, EPA contributes 47% of the
total program costs with States
contributing 53%. Moreover. EPA notes
that the 1986 Safe Drinking Water Act
Amendments authorizing the Aqency to
"treat Tribes as States" also imposed
additional requirements on States and
Indian Tribes to adopt filtration/
disinfection regulations, a lead ban.
unregulated contaminant regulations
and an expanded list of regulated
contaminants. Administration of these
new requirements will require that
Indian Tribes and States obtain
additional resources.
After considering the comments, the
Agency believes that a matching
requirement is appropriate because such
a requirement ensures from the outset •
that Tribes have a financial stake in
developing and operating viable Public
Water System and Underground
Injection Control programs. The Agency
acknowledges, however, that many
Indian Tribes do not have the revenue
base needed to meet the 25% matching
requirement. The provisions for a
reduction of the required matching funds
to 10% address this situation. Further.
Tribes which qualify for a 10% reduction
should be able to provide the requisite
match through in-kind contributions and
Federal funds authorized by statute to
be used as a match for Public Water
System and Underground Injection
Control programs. Accordingly, the
matching requirements are unchanged
from the proposed rule. It is important
for Tribes to realize that regardless of
the required matching level, the actual
percentage of program costs that may be
incurred by a given Tribe in the course
of adequately administering these
programs could easily exceed the 25%
matching requirement
4. Reallocation of Reserve Funds
As stated above, EPA intends to
develop a formula to determine the
amount of funds available each year to
eligible recipients and EPA Regions.
Thus, once the number of eligible Tribes
stabilizes, there should be no unused
funds and no need for reallocation since
EPA will allocate funds for its own
implementation needs and each eligible
recipient at the beginning of each fiscal
year.
Until that point of stability is reached.
however, EPA will reserve amounts.
based on its best estimate of ETA
implementation needs, eligible Tribes
and likely applicants. Any funds
allocated to a Region from this reserve
which are not awarded to specific
Indian Tribes by February 1 of each
fiscal year (four months after the fiscal
year begins) may be subject to
reallocation to other Regions. Regions
which receive reallocated funds may use
them for supplemental awards to
eligible Indian Tribes or for direct
implementation activities on Indian
lands. As stated earlier, once EPA
reserves these funds, it is the Agency's
intent that Indian reserve funds will be
used either by EPA Regions for activities
on Indian lands or by eligible Indian
Tribes. EPA's decision on the actual
timing of reallocation (whether it is
February l or later in the fiscal year)
will depend upon a number of factors
including how long the current fiscal
year's appropriation has been available
to Indian Tribes.
A number of comments were received
pertaining to the reallocation of funds.
Some commenters stated that
unallocated reserves for Indian Tribes
should be reallocated solely to States,
since initially the program grant funds
were established only for States.
Conversely, numerous comments were
received that unallocated reserves
should be solely reallocated to Tribes or
that the Agency should show a
preference for Indian Tribes in the
reallocation process. Since the Agency
intends to reserve funds each year
based on its best estimate of what will
actually be used, the amount reserved
will, in all likelihood, be less than the 3%
and 5% limits. Thus, the Agency does
not believe that impacts on State
programs will be significant, nor that a
preference for States in the reallocation
process is appropriate. Rather, the
Agency believes that the objectives of
the drinking water programs will be
better served if. as stated above, the
unused funds are reallocated for use on
Indian lands.
Three commenters suggested that ET'A
should extend the reallocation date
beyond the February 1 deadline. One
commenter suggested May 1 as an
appropriate date for Fiscal Year 1988.
Except for Fiscal Year 1988 when the
promulgation of this rule will delay
Tribal applications, EPA believes
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37406 Federal Register / Vol. 53. No. 186 / Monday. September 26, 1988 / Rules and Regulations
February 1 is as late in the Fiscal Year
as funds can be withheld and still
enable the Agency and eligible Indian
Tribes to effectively utilize these funds
during the remainder of the Fiscal Year.
EPA notes that the reallocation of State
funds typically occurs around December
1.
Fiscal year 1986 represents a special
case for the reallocation of these reserve
funds. In October 1987. the EPA
allocated $334,500 for the Public Water
System program and $339.000 for the
Underground Injection Control program
to its Regional Offices for use on Indian
lands in Fiscal Year 1988. In addition,
the Agency reserved $669.000 and
$236.300 respectively for the Public
Water System and Underground
Injection Control programs for grants to
eligible Indian Tribes. However, with
the delay in promulgating this rule, the
Agency decided in July to reallocate the
remaining $236,300 in U1C funds to EPA
Regions for grants to primacy States and
for direct implementation in States and
Indian lands. Within the PWS program,
the Agency decided to reallocate
$494,000 of the $669,000 amount to EPA
Regions for additional grants to States
or for direct implementation purposes in
States and Indian lands. Until the Fiscal
Year 1989 appropriations become
available, EPA will continue to reserve
the remaining $175,000 of Fiscal Year
1988 Public Water System funds for
grants to eligible Indian Tribes and for
direct implementation on Indian lands.
This amount will assure that there is no
interruption in our ability to make grants
to.all Tribes that may qualify in the near
term.
5. Development Grant Time Frames and
Grants
The next issue is how much time
should be allowed to eligible Tribes to
develop Public Water System and
Underground Injection Control programs
with EPA financial assistance. The
proposed rule allowed for two years for
the Public Water System and three
years for the Underground Injection
Control program. A number of
commenters pointed out that many
Tribes do not have the existing staff or
resources to develop a Public Water
SyctPTO program >n 2 years, or an
Underground Injection Control program
in 3 years. In addition, several
commenters felt that the lack of Agency
funding in past years has contributed to
Tribal inability to establish the
necessary staff and administrative and
technical expertise to apply for Public
Water System and/or Underground
Injection Control programs. Most
commenters proposed that there be no
time limitations on Indian Tribes or that
there be a provision for waiver from any
time frames the Agency establishes, if a
Tribe is making a good faith effort to
develop a prograriTand is making
reasonable progress in this endeavor.
Other commenters proposed that, at a
minimum, the time frames should be
lengthened—for example, to 4 and 5
years, respectively.
In order to make the best use of the
limited amount of available grant funds
the Agency believes that Indian Tribes
receiving Section 1443 (a) and (b) grants
should be required to develop primacy
within a definite time period The
Agency recognizes that Tribes generally
do not possess the resources States have
to develop Public Water System and
Underground Injection Control
programs. After careful consideration of
the comments, it is the Agency's best
judgment that it should extend the time
frames for the development of programs
to three years for the Public Water
System program and four years for the
Underground Injection Control program
but with no provision for waiver from
these time frames. Tribes which do not
achieve primacy within the three and/or
four year periods of grant eligibility
would be ineligible for further grants
until primacy is achieved. The Agency
believes that establishing longer time
frames, beyond three and/or four years
is not warranted in that meeting
"treatment as a State" criteria will mean
that a Tribe has a basic level of
capability. Consequently, three years
and four years should be adequate for
developing the respective programs. The
EPA believes that some Tribes may
require less than three or four years to
develop their program.
EPA wishes to clarify, however, that
Tribes may apply for these programs at
any time. Tribes are not required to
apply for these programs within three or
four years after promulgation of this
rule. Further, Tribes are not required to
develop their programs within three
and/or four consecutive years. For
example, after developing a Public
Water System program for two years
with EPA's financial assistance, a Tribe
could then opt to work on program
development without EPA financial
assistance for a year. Thereafter, the
Tribe would still have one more year to
develop a program with EPA's financial
assistance. Tribes which have received
development grants for three years and
four years without achieving primacy
may continue to develop their programs
beyond the three and four-year time
limits for the Public Water System and
Underground Injection Control
programs, respectively, without EPA
financial assistance.
A number of comments were received
stating that many Tribes may not have
the technical staff in place at the time of
the development grant application. It is
the intent of the Agency to be flexible
and recognize that some Tribes may not
have each required element in place.
such as all the required technical staff
needed to administer a Public Water
System or Underground Injection
Control program at the time the Tribe
applies for its initial development grant.
Indeed, the purpose of development
grants is to ensure that the basic
organizational structure is in place
which can then be "fine tuned" to meet
the primacy requirements.
The EPA will evaluate each Tribal
applicant's capability to achieve
primacy within the three-year
development period for the Public Water
System program or four-year
development period for the Underground
Injection Control Program by reviewing
the development grant application that
the Tribe submits. With the application.
EPA will require that the Tribe submit a
development plan specifying how it will
develop its Public Water System and/or
Underground Injection Control
program(s). An applicant will not be
awarded additional grants unless it can
demonstrate reasonable progress as
measured against its development plan
commitment during each grant period.
As stated earlier. Tribes which fail to
obtain primacy within the respective
three or four-year grant eligibility
development periods will be ineligible to
receive further grants until primacy is
obtained.
It was suggested by some commenters
that the Agency recognize the possibility
of Tribes entering into memoranda of
agreement with Regional Offices. States.
or other Tribes in order to develop
primacy programs in an effective
manner. The Agency agrees that in
many cases such agreements may be
beneficial to all parties involved. It
should be recognized, however, that the
Tribe initiating the agreement is
expected to take the lead in assuring all
n*r\nT-rt*v* *>a3r*'">n3^ilit!C£ 9r° *n?t Anv
such agreements should be entered into
with the understanding that the
initiating Tribe is expected to assume
full programmatic responsibility within
a definite period of time. Examples of
such agreements could include an
inspection program such as conducting
sanitary surveys, data entry for
purposes of tracking aainpiiiig
requirements, or laboratory analyses.
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Federal Register / Vol. 53. No. 166 / Monday. September 26. 1988 / Rules and Regulation* 37407
E. Other Issues
1. Technical Assistance
Several commenters pointed out that
the Agency in its July 27,1987 proposal
made no mention of technical assistance
funds authorized under section 1442[g)
of the Act The 1986 Amendments
authorized an appropriation of
$10,000.000 for each of the Fiscal Years
1987 through 1991 for technical
assistance. Subsection (g) states. In part:
"Not less than the greater of (1) 3
percent of the the amounts
appropriated * * * or (2) $260,000 shall
be utilized for technical assistance to
public water systems owned or operated
by Indian Tribes." To date no funds
have been appropriated under section
1442(g) of the Act. The Agency further
notes that section 1442(g) specifies that
technical assistance funds are to be
used for matters such as operator
certification, circuit rider programs, and
technical assistance visits to community
water systems. The Agency interprets
section 1442{g) to mean that technical
assistance funds can be made available
to water systems. Individual Indian
public water systems would be eligible
to receive technical assistance in the
form of circuit rider programs, training.
and preliminary engineering studies if
funds are subsequently appropriated.
Several commenters mentioned that
the Agency has not historically provided
technical assistance to Tribes. The
Agency disagrees. Each EPA Regional
Office which has primary enforcement
responsibility for Indian reservations
annually receives a direct
implementation budget Historically, the
Agency's direct implementation budget
for Indian lands has been approximately
$300.000 for the Public Water System
program and 5250.000 for the
Underground Infection Control program.
In addition, approximately eleven and
twenty full-rime staff are currently
assigned to administer the Public Water
System and Underground Injection
Control programs on Indian land*
respectively.
Because the Regional Offices are the
primary enforcement agents for
programs on Indian lands, each office
uses its direct implementation budget to
implement requirements of the National
Primary Drinking Water and/or
Underground Injection Control
regulations on Indian lands. In addition
to tracking monitoring and reporting
requirements. Regional staff also
provide on-site technical assistance.
Technical assistance provided by EPA
Regional Offices is often coordinated
with the Indian Health Service (IMS).
Many of the Regions fund "circuit rider"
programs that are for the purpose of
providing technical assistance to public
water system operators on reservations.
The circuit riders have a working
knowledge of small rural systems such
as those found on reservations. In
addition to technical assistance, the
circuit rider programs (often in
conjunction with the IHS) provide
training to the Indian operators that can
lead to certification. The EPA believes
that certified operators, in turn, can
contribute greatly (in an indirect way) to
a Tribe's in-house technical expertise.
Many oommenten asserted that
technical assistance and technical
assistance funds should be used for
construction of new community water
systems and/or upgrading existing
facilities. With the limited exception of
special demonstration projects
authorized by section 1444, (for which
appropriations are not currently
available], there is no statutory
authority within the Safe Drinking
Water Act for the Agency to fund either
the construction of new facilities or the
upgrading of existing facilities. The
Indian Health Service, the Department
of Housing and Urban Development, the
Bureau of Indian Affairs, or an
individual Indian Tribe each have the
requisite authority to construct and/or
maintain water systems.
2. Alaska Native Villages
In its July 27.1987 proposal EPA
addressed the question of whether
Alaska Native Villages meet the
definition of an "Indian Tribe"
contained in section 1401 of the Safe
Drinking Water Act The EPA noted that
the SDWA definition of "Indian Tribe"
does not mention Alaska Native
Villages. The EPA stated in its proposal
that it believed the legislative history of
the Act indicated that Congress
intended to exclude Alaska Native
Villages from coverage under the
"Indian Tribes" amendment (section
1451). Support for this interpretation
was derived from the Senate definition
of "Indian tribal organization" in S. 124
(i.e., the bill containing the Safe
Drinking Water Act amendments that
the Senate originally passed) which
specifically included Alaska Native
Villages. However, since Congress
adopted the House definition of "Indian
Tribe" (which did not include Alaska
Native Villages), EPA concluded that
Congress intended to exclude Alaska
Native Villages from the definition of
"Indian Tribe."
The Agency also noted that in
Section 101 of the Superfund
Amendments and Reauthorization Act
of 1986 (SARA). Congress specifically
referred to "Alaska Native Villages" in
the definition of 'Indian Tribe". The
Safe Drinking Water Act amendments
and SARA were both enacted by the
same session of Congress. This contrast
in definitions constituted additional
evidence of Congressional intent to
exclude Alaska Native Villages from the
scppe of the Safe Drinking Water Act
amendments.
EPA received two comments during
the formal comment period, and
additional comments after the formal
comment period EPA also met with
representatives of Alaska Native
Villages after the formal comment
period had dosed. All of the comments
EPA received during and after the
formal comment period disagreed with
EPA's conclusion that the legislative
history shows Congressional intent to
make Alaska Native Villages ineligible
to apply for "treatment as a State" for
the Underground Injection Control and
Public Water System programs. The
commenters further asserted that
Alaska Native Villages clearly fall
within the Safe Drinking Water Act's
definition of "Indian Tribe." One
commenter noted that major Indian
legislation has applied to Alaska Native
Villages. EPA notes, however, that
whenever Congress has desired to have
the term "Indian Tribe" in major Indian
legislation encompass Alaska Native
Villages it specifically has included
them within the respective statutory
definitions of "Indian Tribe" (e.g., Indian
Self-Determination and Education
Assistance Act (25 U.S.C. 450 etseq.}.
Indian Health Care Improvement Act (25
U.S.C. 1601 et seq.}, and the Indian Child
Welfare Act (25 U.S.C 1901 etseq.)).
Based on the legislative history of the
Act, the comparisons with SARA, and
the specific references to Alaska Native
Villages in the definitions of the term
"Indian Tribe" contained in major
Indian legislation, the Agency has
concluded that the SDWA definition of
"Indian Tribe" does not include Alaska
Native Villages. Consequently, under
this rule, Alaska Native Villages will not
be eligible to apply for: treatment as a
State; primary enforcement
responsibility for the Public Water
System and Underground Injection
Control programs: or financial
assistance available to States and
Indian Tribes treated as States.
3. Trust Responsibility
One commenter stated that "[p]erhaps
the greatest flaw in these proposed
regulations is EPA's failure to consider
its trust responsibility and develop an
affirmative action program to assist
Tribes in developing the capability to
regulate programs under SDWA."
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37408 Federal Register / Vol. S3, No. 186 / Monday. September 26, 1988 / Rules and Regulations
Several other commentera echoed this
viewpoint.
Both the Public Water System
program and the Underground Injection
Control program are regulatory in nature
and designed to protect the public
health and overall environmental
quality for the benefit of the general
public, including Indian Tribes.
Specifically, these are not programs
applicable solely to Indians because of
their status as Indians. Instead, these
programs were created to ensure
acceptable water quality to all
consumers (Indian and non-Indian) and
also ensure that underground injection
is regulated in an environmentally
acceptable manner through promulgated
standards.
The purpose of section 1451 of the
Safe Drinking Water Act is to authorize
the Agency (under certain conditions) to
treat Indian Tribes as States and
subsequently to allow eligible Indian
Tribes to apply for primacy (and the
corresponding regulatory
responsibilities) under either the Public
Water System or the Underground
Injection Control provisions. Those
Indian Tribes not found eligible for
treatment as States, or opting not to
apply for treatment as States, are to
continue to benefit from existing
programs through Regional direct
implementation.
In sum, the purpose of the 1986
Amendments is jo allow eligible Indian
Tribes to participate in the
administration of these general
regulatory programs. The Agency does
not believe that the 1986 Amendments
mandate establishment of an
"affirmative action program" to assist
Indian Tribes, in general, to meet the
criteria for "treatment as a State." The
scope of EPA's "responsibility."
however characterized, is defined by the
language of the 1986 Amendments and
the provisions of the Safe Drinking
Water Act. The EPA believes that its
statutory responsibility under the 1986
Amendments is to promulgate regulatory
requirements which afford eligible
Indian Tribes a fair and reasonable
opportunity to attain primacy for Public
Water System and/or Underground
Injection Control programs and. at the
same time, ensure that Tribes assume
and maintain primacy in a manner
which is "no less protective of the public
health than such responsibility may be
assumed or maintained by a State."
These regulations 5r6 n^incifitpnt with
that mandate and with EPA's Indian
P_!:_.. c._.-_„_.
Wiawjr W»tJ lw»**^a*k.
IV. Other Regulatory Requirements
A. Compliance With Executive Order
J22S1 . _
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 $100 million or more;
(2) A major increase in costs or prices
for consumers; individual industries;
Federal. State, end local government
agencies; or geographic regions; or
(3) Significant adverse effect on
competition, employment, investment,
productivity, innovation, or the ability of
United States-based enterprises to
compete with foreign-based enterprises
in domestic or export markets.
- Since this rule does not meet the
definition of a major regulation, the
Agency has not conducted a regulatory
impact analysis. The proposed rule was
submitted to the Office of Management
and Budget (OMB) for review as
required by Executive Order 12291. Any
comments from OMB to EPA and any
response to these comments will be
available for viewing at the
Environmental Protection Agency, Room
1003 East Tower, 401 M Street SW.,
Washington, DC 20460.
B. Paperwork Reduction Act
The information collection
requirements ifi this final rule was
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and
has been assigned control numbers
2040-0090 (Public Water System) and
2040-0042 (Underground Injection
Control).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act
requires that Federal agencies prepare
regulatory flexibility analyses assessing
the impacts of proposed rules on entities
such as small businesses, small
organizations, and small governmental
jurisdictions. Such analysis is not
required, however, when the head of the
agency certifies ilioi a Pule will not hcvc
a significant economic impact on a
substantial number of small entities.
The EPA considers the information
required by this rule to be the minimum
necessary to administer effectively the
Indian provisions of the 1986 Safe
Drinking Water Act amendments. Any
additional economic impact on the
public resulting frcrr. reporting sr.d
recordkeeping requirements that Tribes
odop; as psr; of a Public V.'c'.cr Syciem
and/or Underground Injection Control
program(s) is expected to be negligible
since owners/opera tors of public water
systems and/or underground injection
wells are already reporting to EPA.
Awarding primacy to an Indian Tribe
will not change the reporting or
regulatory requirements, but only the
government to which the owner/
operator reports. Accordingly, I certify
that these regulations, when
promulgated, will not have a substantial
impact on a number of small entities.
List of Subjects ID 40 CFR Parts 35,124,
141,142,143,144,145, and 146
Administrative practices and
procedures, Air pollution control.
Chemicals, Confidential business
information, Grant programs—
environmental protection. Hazardous
materials, Indians, Intergovernmental
relations. Penalties, Pesticides and
pests, Radiation protection. Reporting
and recordkeeping requirements, Waste
treatment and disposal, Water pollution
control, Water supply.
Dated: September 12,1988.
Lac M. Thomas,
Administrator.
Therefore, for the reasons set forth in
the preamble. 40 CFR Chapter I is
amended as follows:
PART 35—STATE AND LOCAL
ASSISTANCE
Subpart A—Financial Assistance tor
Continuing Environmental Programs
1. The authority citation for Subpart A
is amended to read:
Authority: Sees. 105 and 301(a) of the Clean
Air Act. as amended (42 U.S.C. 7405 and
7801(a)); sees. 106. 205(g), 205(j). 208 and 501
(a) of the Clean Water Act. as amended (33
U.S.C. 1256.1285(g). 1285(j). 1288. and
1361(a)); sees. 1443,1450. and 1451 of the Safe
Drinking Water Act (42 U.S.C. 300J-2 and
300J-9): sees. 2002(a) and 3011 of the Solid
Waste Disposal Act. ae amended by the
Resource Conservation and Recover)' Act of
1876 (42 U.S.C. 6912(a). 6931. 6947. and 6949):
and sees. 4.23. and 25(a) of the Federal
Insecticide. Fungicide, and Rodenticide Act.
as amended (7 U.S.C. 136(b). 136(u). and
136w(a)).
2. Seciicr. :5.1C5 \z a~.cr.dcd tc add. :n
alphabetical order, new definitions for
"Indian Tribe" and "State" to read as
follows:
§35.105 Definition*.
• • 0 * •
"Indian Tribe" means, within the
context of the Public Water System
Super"*"'"" ""d Underground Water
Source Protection grants, any Indian
Tribe hsvln^ a Federally recognized
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Federal Register / Vol. 53. No. 186 / Monday. September 26. 1938 / Rules and Regulations 37409
governing body carrying out substantial
governmental duties and powers over a
defined area.
• • • • •
"State" means, within the context of
the Public Water System Supervision
and Underground Water Source
Protection grants, one of the States of
the United States, the District of
Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands. Guam,
American Samoa, the Trust Territory of
the Pacific Islands, the Commonwealth
of the Northern Mariana Islands, or an
Indian Tribe treated as a State.
• • • • •
3. Section 35.115 (e) and (f) are revised
to read as follows:
§35.115 State allotments and reserves.
« • • « •
(e) Public Water System Supervision
allotment (Safe Drinking Water Act,
section 1443{a)): Population, geographic
area, numbers of community and
noncommunity water systems and other
relevant factors. All jurisdictions except
American Samoa, Guam, the Northern
Mariana Islands, the Virgin Islands or
an individual Indian Tribe treated as a
State shall be allotted at least one
percent. Up to three percent of the
Public Water System Supervision funds
shall be reserved each year for use on
Indian lands.
(f) Underground Water Source.
Protection allotment (Safe Drinking
Water Act, section 1443(b)): Population.
geographic area, extent of underground
injection practices, and other relevant '
factors. L'p to five percent of the
Underground Water Source Protection
funds shall be reserved each year for
>ise on Indian lands.
• • • • •
4. Section 35.155 is amended by
adding a new paragraph (c) to read as
follows:
§ 35.155 Realiocation.
• • • • •
(c) Public Water System Supervision
and Underground Water Source
Protection funds reserved for use on
Indian lands which are not awarded to
specific Indian Tribes by February 1 of a
fiscal year, may be reallocated by the
Administrator for supplementary
awards to Indian Tribes treated as
States or to EPA Regions for purposes of
direct implementation on Indian lands.
5. Section 35.400 is revised to read as
follows:
§35.400 Purpose.
Sections 1443(a) and 1451(a](3) of the
Safe Drinking Water Act authorize
assistance to States and Indian Tribes
treated as States for Public Water
System Supervision Programs.
Associated program regulations are
found in 40 CFR Parts 141.142, and 143.
6. Section~35.405 is amended by
designating existing text as paragraph
(a) and adding a new paragraph (b) to
read as follows:
§ 35.405 Maximum Federal share.
* » * * *
(b) The Regional Administrator may
increase the 75 percent maximum
Federal share for an Indian Tribe based
upon application and demonstration by
the Tribe that it does not have adequate
funds (including Federal funds
authorized by statute to be used for
matching purposes), Tribal funds, or in-
kind contributions to meet the required
25 percent Tribal match. In no case shall
the Federal share be greater than 90
percent.
7. Section 35.410 is amended by
adding a new paragraph (c) to read as
follows:
§35.410 Limitations.
• * • * •
(c) The limitations in paragraphs (a)
and (b), of this section do not apply to
funds allotted to Indian Tribes.
B. Part 35 is amended by adding a new
§ 35.415 to read as follows:
§35.415 Indian Tribes.
(a) The Regional Administrator will
not award initial section 1443(a) funds
to an Indian Tribe unless:
(1J EPA has determined that the
Indian Tribe meets the requirements of
40 CFR Part 142. Subpart H—Treatment
of Indian Tribes as States; and
(2] The applicant has a Public Water
System Supervision Program or agrees
to establish one within three years of
the initial award and agrees to assume
primary enforcement responsibility
within this period.
(b) The Regional Administrator shall
not give a continuation award to any
Indian Tribe unless the Tribe can
demonstrate reasonable progress
towards assuming primary enforcement
responsibility within the three-year
period.
(c) After the three-year period expires.
the Regional Administrator shall not
award section 1443(a) funds to an Indian
Tribe unless the Tribe has assumed
primary enforcement responsibility.
9. Section 35.450 is revised to read as
follows:
§35.450 Purpose.
Section 1443(b) of the Safe Drinking
Water Act authorizes assistance to
States and Indian Tribes treated as
States for Underground Water Source
Protection Programs. Associated
program regulations are found in 40 CFR
Parts 124,144,145.146, and 147.
10. Section 35.455 is amended by
designating existing text as paragraph
(a) and adding a new paragraph (b) to
read as follows:
§ 35.455 Maximum Federal share.
* • • • •
(b) The Regional Administrator may
increase the 75 percent maximum
Federal share for an Indian Tribe based
upon application and demonstration by
the Tribe that it does not have adequate
funds (including Federal funds
authorized by statute to be used for
matching purposes), Tribal funds, or in-
kind contributions to meet the required
25 percent match requirement. In no
case shall the Federal share be greater
than 90 percent.
11. Section 35.460 is revised to read as
follows:
§ 35.460 Limitation*.
After September 30,1983. the Regional
Administrator will not award section
1443(b] funds unless the applicant has
primary enforcement responsibility for
the Underground Water Source
Protection program. The above
limitation shall not apply to funds
allotted to Indian Tribes.
12. Part 35 is amended to add a new-
Section 35.465 to read as follows:
§ 35.4C5 Indian Tribes.
(a) The Regional Administrator will
not award initial section 1443(b) funds
to an Indian Tribe unless:
(1) EPA has determined that the
Indian Tribe meets the requirements of
40 CFR Part 145 Subpart E—Treatment
of Indian Tribes as States.
(2) The applicant has an Underground
Water Source Protection program or
agrees to establish one within four years
of the initial award and agrees to
assume primary enforcement
responsibility within this period.
(b) The Regional Administrator shall
not give a continuation award to any-
Indian Tribe unless the Tribe can
demonstrate reasonable progress
towards assuming primary enforcement
responsibility within the four-year
period.
(c) After the four-year period expires.
the Regional Administrator shall not
award section 1443(b) funds to an Indian
Tribe unless the Tribe has assumed
primary' enforcement responsibility.
PART 124—PROCEDURES FOR
DECISION MAKING
1. The authority citation for Part 124
continues to read as follows:
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37410 Federal Register / Vol. 53, No. 186 / Monday. September 26, 1988 / Rules and Regulations
Authority: Resource Conservation and
Recovery Act. 42 US.C. 6901 et seq.: Safe
Drinking Water Act. 42 U5.C. 300f et seq.;
Clean Water Act. 33 L'S.C 1251 et seq.: and
Clean Air Act 42 U.S.C. 18S7 et teq.
2. Section 124.2 is amended by adding
the definition "Indian Tribe" in
alphabetical order and by revising the
following definitions to read:
{ 124.2 Definition*.
"Director" means the Regional
Administrator, the State director or the
Tribal director as the context requires,
or an authorized representative. When
there is no approved State or Tribal
program, and there is en EPA
administered program, "Director" means
the Regional Administrator. When there
is an approved State or Tribal program.
"Director" normally means the State or
Tribal director. In some circumstances.
however, EPA retains the authority to
take certain actions even when there is
an approved State or Tribal program.
(For example, when EPA has issued an
NPDES permit prior to the approval of a
State program, EPA may retain
jurisdiction over that permit after
program approval; see { 123.1) In such
cases, the term "Director" means the
Regional Administrator and not the
State or Tribal director.
• »•«•*
"Indian Tribe" mear.s (except in the
• case of RCRA) any Indian Tribe having
a Federally recognized governing body
carrying out substantial governmental
duties end powers over a defined area.
0 • • « •
"Person" means an individual
association, partnership, corporation.
municipality. State. Federal, or Tribal
agency, or an agency or employee
thereof.
» • • • *
"State*' means one of the States of the
United States, the District of Columbia.
the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa,
the Trust Territory of the Pacific islands
(except in the case of RCRA), the
Commonwealth of the Northern Mariana
Islands, or an Indian Tribe treated as a
State (except in the case of RCRA).
"State Director" means the chief
administrative officer of any State.
interstate, or Tribal agency operating an
approved program, or the delegated
representative of the State director. If
the responsibility is divided among two
or more States, interstate, or Tribal
agencies, "State Director" means the
chief administrative officer of the State,
interstate, or Tribal agency authorized
to perform the particular procedure or
function to which reference is made.
• « . •._ ** *
3. Section 124.10(c)(l)(iii) is revised to
read as follows:
§ 124.10 Public notice of permrt actions
and public comment period.
• • * a •
(c) ' • •
(I)'"
(iii) Federal and State agencies with
jurisdiction over fish, shellfish, and
wildlife resources and over coastal zone
management plans, the Advisory
Council on Historic Preservation. State
Historic Preservation Officer*, including
any affected States (Indian Tribes). (For
purposes of this paragraph, and in the
context of the Underground Injection
Control Program only, the term State
includes Indian Tribes treated as
States.)
PART 141— NATIONAL PRIMARY
DRINKING WATER REGULATIONS
1. The authority citation for Part 141 is
revised to read as follows:
Authority: 42 U.S.C 300f et seg.
2. Section 141.2 (d) and (hj are revised
to read as follows:
§141.2 Definition*.
• • * • •
(d) "Person" means an individual;
corporation; company; association;
partnership; municipality, or State.
Federal, or tribal agency.
• • • « •
(h) "Stale" means the agency of the
State or Tribal government which has
jurisdiction over public water systems.
During any period when a State or
Tribal government does not have
primary enforcement responsibility
pursuant to Section 1413 of the Act, the
term "State" means the Regional
Adminstrator, U.S. Environmental
Protection Agency.
PART 142—NATIONAL PRIMARY
DRINKING WATER REGULATIONS
IMPLEMENTATION
1. The authority citation for Part 142 is
revised to read as follows:
Authority: 42 U.S.C. 300f et seq.
2. Section 142.2 is amended by
redesignaring paragraphs (f) through (p)
as paragraphs (h) through (r) and by
adding new patagiaphs (i) anu ig). and
the redesignated paragraphs (i). (k). and
(o) are revised to read as follows:
11425 Definitions.
• * * • •
(f) "Indian Tribe" mear.s any Indian
Tribe having a Federally recognized
governing body carrying out substantial
governmental duties and powers over a
defined area.
(g) "Interstate Agency" means an
agency of two or more States
established by or under an agreement or
compact approved by the Congress, or
any other agency of two or more States
or Indian Tribes having substantial
powers or duties pertaining to the
control of pollution as determined and
approved by the Administrator.
* « * • •
(i) "Municipality" means a city, town,
or other public body created by or
pursuant to State law. or an Indian Tribe
which does not meet the requirements of
Subpart H of this part.
* • • • •
(kj "Person" means an individual:
corporation; company; association;
partnership; municipality; or State,
federal, or Tribal agency.
« • • • •
(o) 'State" means one of the States of
the United States, the District of
Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands. Guam,
American Samoa, the Commonwealth of
the Northern Mariana Islands, the Trust
Territory of the Pacific islan'ds. or an
Indian Tribe treated as a State.
» « * • *
3. Section 142.3 is amended by adding
a new paragraph (c) to read as follows:
§142.3 Scope.
• • • • *
(c) Section 1451 of the SDWA
authorizes the Administrator to delegate
primary enforcement responsibility for
public water systems to Indian Tribes.
An Indian Tribe must be designated by
the Administrator for treatment as a
State before it is eligible to apply for
Public Water System Supervision grants
and primary enforcement responsibility.
All primary enforcement responsibility
requirements of Parts 141 and 142 apply
to Indian Tribes except where
jna^ifi^ajlt/ nnted.
4. Section 142.10 is amended by
designating existing paragraph (fa)(3) as
paragraph (b)(3)(i) and by adding a new
paragraph (b)(3)(ii) and by adding
paragraph (f) to read as follows:
§ 142.10 Requirements tor a determlmtion
of primary enforcement responsibility.
(3)!;}
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Federal Register / Vol. 53. No. 186 / Monday. September 26. 1968 / Rules and Regulationi 37411
(ii)'Upon a showing by an Indian
Tribe of an intergovernmental or other
agreement tc have all analytical tests
performed by a certified laboratory, the
Admirrstrij'.or may waive this
rrquirement.
• • • • •
(f) An Indian Tribe shall not be
required to exercise criminal
enforcement jurisdiction to meet the
requirements for primary enforcement
responsibility.
5. Part 142 is amended to add a new
Subpart H to read as follows:
PART 142—NATIONAL PRIMARY
DRINKING WATER REGULATIONS
IMPLEMENTATION
Subpart H—Treatment of Indian Tribes as
State*
S*c.
142.72 Requirements for treatment as a
State.
142.76 Request by an Indian Tribe for a
determination of treatment as a Stale.
142.78 Procedure for processing an Indian
Tribe's application for treatment as a
State.
Subpart H—Treatment of Indian Tribes
as States
§ 142.72 Requirements for treatment as a
State.
The Administrator is authorized to
treat an Indian Tribe as a State (for
purposes of making the Tribe eligible to
apply for a Public Water System
Program) if it meets the following
criteria:
(a) The Indian Tribe is recognized b>
the Secretary of the Interior.
(b) The Indian Tribe has a tribal
governing body which is currently
"carrying out substantial govemmentdl
duties and powers" over a defined area.
(i.e.. is currently performing
governmental functions tc promote the
health, safety, and welfare of the
affected population within a defined
geographic area).
(c) The Indian Tribe demonstrates
that the functions to be performed in
regulating the public water systems that
the applicant intends to regulate are
within the area of the Indian Tribal
government's jurisdiction.
(d) The Indian Tribe is reasonably
expected to be capable, in the
Administrator's judgment, of
administering (in a manner consistent
with the terms and purposes of the Act
and all applicable regulations) an
effective Public Water System program
by the existence of management and
technical skills necessary to administer
an effective Public Water System
program or a plan to acquire the
additional management and/or
technical skills to administer an
effective Public Water System Program:
by the existence of institutions to
exercise executive, legislative, and
judicicl functions: by a history of
successful managerial performance of
public health or environmental
programs: and by acceptable accounting
and procurement procedures.
§ 142.76 Request by an Indian Tribe for a
determination of treatment as a State.
An Indian Tribe may apply to the
Administrator for a determination that it
qualifies for treatment as a State
pursuant to section 1451 of the Act. The
application shall be concise and
describe how the Indian Tribe will meet
each of the requirements of S 142.72. The
application shall consist of the following
information:
fa) 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. The
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 powers
affecting (or relating to) the health.
safety, and welfare of the affected
population: taxation: and the exercise of
the pdVer of eminent domain: and
(3) Identify the sources of the Tribal
government's authority to carry out the
governmental functions currently being
performed.
(c) A map or tegal description of the
area over which the Indian Tribe asserts
jurisdiction; a statement by the Tribal
Attorney General (or equivalent official)
which describes the basis for the Tribe's
jurisdictions! assertion (including the
nature or subject matter of the asserted
jurisdiction): a copy of all documents
such as Tribal constitutions, by-laws,
charters, executive orders, codes.
ordinances, and/or resolutions which
support the Tribe's assertedrjurisdiciion:
and a description of the locations of the
public water systems the Tribe proposes
to regulate.
(d) A narrative statement describing
the capability of the Indian Tribe to
administer an effective Public Water
System program. The narrative
statement shall include:
(1) 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 SeH-
Determinabon and Education
Assistance Act (25 U.S.C 450 et »eq.).
the Indian Mineral Development Act (25
U.S.C. 2101 et seq.), or the radian
Sanitation Facilities 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 Indian Tribe's
accounting and procurement systems.
(4) A description of the entity (or
entities) which exercise the executive.
legislative, and judicial functions of the
Tribal government.
(5) A description of the existing, or
proposed, agency of die Indian Tribe
which will assume primary enforcement
responsibility, including a description of
the relationship between owners/
operators of the public water systems
and the agency.
(6) A description of the technical and
administrative capabilities of the staff to
administer and manage an effective
Public Water System Program or a plan
which proposes how the Tribe will
acquire additional administrative and/
or technical expertise. The plan must
address how the Tribe will obtain the
funds to acquire the additional
administrative and technical expertise.
(e) The Administrator may. in 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
requirement for "treatment as a State"
for programs authorized under the Sale
Drinking Water or the Clean Water
Acts, then thai Tribe may provide only
that information unique to the Public
Water System program (/«.. §J 142.76(c)
and 142-76(d)(6)).
$ 142.76 Procedure for processing an
Indian Tribe's application for treatment as a
State.
(a) The Administrator shall process a
completed apphcation of an Indian
Tribe for treatment as a State submitted
pursuant to S 142.76 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 completed application for
treatment as a State, the Administrator
shall notify the appropriate
governmental entities. Notice shall
include information on the substance of
and basis for the Tribe's jurisdictions!
assertions.
(c) Each governmental entity so
notified by the Administrator shall havr
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37412 Federal Register / Vol. 53. No. 186 / Monday, September 26. 1988 / Rules and Regulations
30'days to comment upon the Tribe's
assertion of jurisdiction. Comments by
governmental entities shall be limited to
the Tribe's assertion of jurisdiction.
(d) If a Tribe's asserted jurisdiction is
subject to a competing or conflicting
claim, the Administrator, after
consultation with the Secretary of the
Department of the Interior, or his
designee, and in consideration of other
comments received, shall determine
whether the Tribe has adequately
demonstrated the requisite jurisdiction
for primacy for the Public Water System
Program.
(e) If the Administrator determines
that a Tribe meets the requirements of
S 142.72, the Indian Tribe is then eligible
to apply for development grants and
primary enforcement responsibility for a
Public Water System Program and
associated funding under section 1443(a)
of the Act and for primary enforcement
responsibility for public water systems
under section 1413 of the Act
PART 143—NATIONAL SECONDARY
DRINKING WATER REGULATIONS
1. The authority citation for Part 143 is
reviised to read as follows:
Authority: 42 U.S.C 300f et se<).
2. Section 143.2(d) is revised to read
as follows:
§ 143.2 Definition*.
• • • • *
(d) "State" means the agency of the
State or Tribal government which has
jurisdiction over public water systems.
During any period when a State does not
have responsibility pursuant to section
1443 of the Act, the term "State" means
the Regional Administrator, U.S.
Environmental Protection Agency.
PART 144—UNDERGROUND
INJECTION CONTROL PROGRAM
1. The authority citation for Part 144 is
revised to read as follows:
Authority: Safe Drinking Water Act. 42
U.S.C. 300f et sec/: Resource Conservation
and Recovery Act. 42 U.S.C. 6901 el seq.
2. Section 144.3 is amended by adding
the definition "Indian tribe" in
alphabetical order and by revising the
following definitions to read:
{ 144.3 Definitions.
• • • • •
"Approved State Program" means a
U1C program administered by the State
or Indian Tribe that has been approved
by EPA according to SDWA sections
1422 and/or 1425.
"Director" means the Regional
Administrator, the State director or the
Tribal director as the context requires.
or en authorized representative. When
there is no approved State or Tribal
program, and there is an EPA
administered program, "Director" means
the Regional Administrator. When there
is an approved State or Tribal program,
"Director" normally means the State or
Tribal director. In some circumstances,
however, EPA retains the authority to
take certain actions even when there is
an approved State or Tribal program. In
such cases, the term "Director" means
the Regional Administrator and not the
State or Tribal director.
• • • • •
"Indian Tribe" means any Indian
Tribe having a Federally recognized
governing body carrying out substantial
governmental duties and powers over a
defined area.
• • • • •
"Interstate Agency" means an agency
of two or more States established by or
under an agreement or compact
approved by the Congress, or any other
agency of two or more States or Indian
Tribes having substantial powers or
duties pertaining to the control of
pollution as determined and approved
by the Administrator under the
"appropriate Act and regulations."
* • * • •
"Person" means an individual,
association, partnership, corporation,
municipality, State, Federal, or Tribal
agency, or an agency orjemployee
thereof.
• • * • *
"Slate" means any of the 50 States.
the District of Columbia, Guam, the
Commonwealth of Puerto Rico, the
Virgin Islands, American Samoa, the
Trust Territory of the Pacific Islands, the
Commonwealth of the Northern Mariana
Islands, or an Indian Tribe treated as a
State.
"State Director" means the chief
administrative officer of any State.
interstate, or Tribal agency operating an
"approved program," or the delegated
representative of the State director. If
the responsibility is divided among two
or more States, interstate, or Tribal
agencies, "State Director" means the
chief administrative officer of the State,
interstate, or Tribal agency authorized
to perform the particular procedure or
function to which reference is made.
PART 145—STATE UIC PROGRAM
REQUIREMENTS
1. The authority citation for Part 145 is
revised to read as follows:
Authority: 42 U.S C 300f et seq.
2. Section 145.1 is amended to add a
new paragraph (h) to mod as follow*:
§ 145.1 Purpose and scope.
• • • # •
(h) Section 1451 of the SDWA
authorizes the Administrator to delegate
primary enforcement responsibility for
the Underground Injection Control
Program to Indian Tribes. An Indian
Tribe must establish its eligibility to be
treated as a State before it is eligible to
apply for Underground Injection Control
grants and primary enforcement
responsibility. All requirements of Paris
124,144,145. and 146 that apply to
States with UIC primary enforcement
responsibility also apply to Indian
Tribes except where specifically noted.
3. Section 145.13 is amended to add a
new paragraph (e) to read as follows:
1145.13 Requirements for enforcement
authority.
• • • * •
(e) To the extent that an Indian Tribe
does not assert or is precluded from
asserting criminal enforcement authority
the Administrator will assume primary
enforcement responsibility for criminal
violations. The Memorandum of
Agreement in J 145.25 shall reflect a
system where the Tribal agency will
refer such violations to the
Administrator in an appropriate and
timely manner.
4. In Section 145.21. existing
paragraphs (c) through (f) are
redesignated as paragraphs (d) through
(g) and a new paragraph (c) is added to
read as follows:
§ 145.21 General requirement* for
program approvals.
• • • • •
(c) The requirements of § 145.21 (a)
and (b) shall not apply to Indian Tribes
• • • • •
5. Part 145 is amended to add a new
Subpart E to read as follows:
Subpart E—Treatment of Indian Tribes as
States
Sec
145.52 Requirements for treatment as a
Stale.
145.56 Request by an Indian Tribe fur i>
determination of treatment as a State
145.58 Procedure for processing an Ind.jr,
Tribe's application for treatment as a
State.
Subpart E—Treatment of Indian Tribes
as States
§ 145.52 Requirements for treatment as a
State.
The Administrator is authorized to
treat an Indian Tribe as a State (for
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Federal Register / Vol. S3. No. 186 / Monday. September 26. 1988 / Rules and Regulations 97413
purposes of making the Tribe eligible to
apply for an Underground Injection
Control Program) if it meets the
following criteria:
(a) The Indian Tribe is recognized by
the Secretary of the Interior.
(b) The Indian Tribe has a Tribal
governing body which is currently
"carry-ing out substantial governmental
duties and powers" over a defined area.
(i.e., is currently performing
governmental functions to promote the
health, safety, and welfare of the
affected population within a defined
geographic area).
(c) The Indian Tribe demonstrates
that the functions to be performed in
regulating the underground injection
wells that the applicant intends to
regulate are within the area of the
Indian Tribal government's jurisdiction.
(d) The Indian Tribe is reasonably
expected to be capable, in the
Administrator's judgment of
administering (in a manner consistent
with the terms and purposes of the Act
and all applicable regulations) an
effective Underground Injection Control
Program by the existence of
management and technical skills
necessary to administer an effective
Underground Injection Control Program
or a plan to acquire the additional
management and/or technical skills to
administer an effective Underground
Injection.Control Program; by the
existence of institutions to exercise
executive, legislative, and judicial
functions: by a history1 of successful
managerial performance of public health
or environmental programs: and by
acceptable accounting a:.d p.ocuK.-.ien!
procedures.
{ 145.56 Requect by an Indian Tribe tor a
determination of treatment as • State.
An Indian Tribe may apply to the
Administrator for a determination that it
qualifies for treatment as a State
pursuant to section 1451 of the Act. The
application shall be concise and
describe how the Indian Tribe will meet
each of the requirements of § 145.52. The
application shall consist of the
following:
(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. The
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 powers
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 sources of the Tribal
government's authority to carry out the
governmental functions currently being
performed. *.
(c) A map or legal description of the
area over which the Indian Tribe asserts
jurisdiction; a statement by the Tribal
Attorney General (or equivalent official)
which describes the basis for the Tribe's
jurisdictional assertion (including the
nature or subject matter of the asserted
jurisdiction); a copy of all documents
such as Tribal constitutions, by-laws.
charters, executive orders, codes,
ordinances, and/or resolutions which
support the Tribe's asserted jurisdiction;
and a description of the locations of the
underground injection wells the Tribe
proposes to regulate.
(d) A narrative statement describing
the capability of the Indian Tribe to
administer an effective Underground
Injection Control program which stval!
include:
(1) A description of the Indian Tribe's
previous management experience
including, but not limited to, the
administration of programs and services
authorized under the Indian Self-
Determination and Education
Assistance Act (25 U.S.C. 450 et ~seq.}.
the Indian Mineral Development Act (25
U.S.C. 2101 et seq.}. or the Indian
Sanitation Facilities Construction
Activity Act (42 U.S C. 2004a).
(2) A list cf 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 Indian Tribe's
accounting and procurement systems.
(4) A description of the entity (or
entities) which exercise the executive,
legislative, and judicial functions of the
Tribal government.
(5) A description of the existing, or
proposed, agency of the Indian Tribe
which will assume primary enforcement
responsibility, including a description of
the relationship between owners/
operators of the underground injection
wells and the agp.icy.
(6) A diSLiiption of ihe technical and
administrative capabilities of the staff to
administer and manage an effective
Underground Injection Control Program
or a plan which proposes how the Tribe
will acquire additional administrative
and/or technical expertise. The plan
must address how the Tribe will obtain
the funds to acquire the additional
administrative and technical expertise.
(e) The Adminstrator may. in his
discretion, request further
documentation necessary to support a
Tribal request for treatment as a State,
yff) If the Administrator has previously
determined that a TjaheJ%t.met the
requiremeni fbr^treatmem aB,a State"
for programs authorized underthe Safe
Drinking Water or the deep-Water
Acts, then that Tribe may provide only
that information unique to the
Underground Injection Control program
(i.e., ii 145.78(c) and 145.T6{d)(6)).
5 145.5» Procadurs tor processing an
Indian Tribe's application for traatmant as a
Stats.
(a) The Administrator shall process a
completed application of an Indian
Tribe for treatment as a State submitted
pursuant to i 145.56 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 completed application for
treatment as a State, the Administrator
shall notify the appropriate
governmental entities. Notice shall
include information on the substance
and base for the Tribe's jurisdictional
assertions.
(c) Each governmental entity so
notified by the Administrator shall have
30 days to comment upon the Tribe's
assertion of jurisdiction. Comments by
governmental entities shall be limited to
•the Tribe's assertion of jurisdiction.
(d) If a Tribe's asserted jurisdiction is
subject to a competing or conflicting
claim, the Administrator, after
consultation with the Secretary of the
Department of the Interior, or his
designee, and in consideration of other
comments received, shall determine
whether the Tribe has adequately
demonstrated the requisite jurisdiction
for primacy for the Underground
Injection Control Program.
(e) If the Administrator determines
that a Tribe meets the requirements of
S 145.52. the Indian Tribe is then eligible
to apply for development grants and
primary enforcement responsibility for
an Underground Injection Control
program and the associated funding
under section 1443(b) of the Act and
primary enforcement responsibility for
the Underground Injection Control
Program under sections 1422 and/or
1425 of the Act.
PART 146—UNDERGROUND
INJECTION CONTROL PROGRAM:
CRITERIA AND STANDARDS
1. The authority citation for Par. 146 is
revised to read as follows:
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37414 Federal Register / Vol. S3. No. 186 / Monday. September 26. 1988 / Rules and Regulations
Authority: Safe Drinking Water Act. 42
U.S.C. 300f et seq.: Resource Conservation
and Recovery Act. 42 U.S.C. 6901 et seq.
2. Section 146.3 is amended by adding
the definition "Indian Tribe" in
alphabetical order and by revising the
following definitions to read:
J 146.3 Definitions.
« o • • •
"Director" means the Regional
Administrator, the State director or the
Tribal director as the context requires,
or an authorized representative. When
there is no approved State or Tribal
program, and there is an EPA
administered program, "Director" means
the Regions 1 Administrator. When there
is an approved State or Tribal program.
"Director" normally means the State or
Tribal director. In some circumstances,
however-EPA retains the authority to
take certain actions even when there is
an approved State or Tribal program.
(For example, when EPA has issued an
NPDES permit prior to the approval of a
State program, EPA may retain
jurisdiction over that permit after
program approval; see § 123.69). In such
cases, the term "Director" means the
Regional Administrator and not the
State or Tribal director.
• • • • «
"Indian Tribe" means any Indian
Tribe having a Federally recognized
governing body carrying out substantial
governmental duties and powers over a
defined area.
• • • • •
"Stale Director" means the chief
administrative officer of any Stale.
interstate, or Tribal agency operating an
"approved program." or the delegated
representative of the State Director. If
the responsibility is divided among two
or more State, interstate, or Tribal
agencies, "State Director" means the
chief administrative officer of the State.
interstate, or Tribal agency authorized
to perform the particular procedure or
function to which reference is made.
» • « • •
[FR Doc. 86-21695 Filed 9-23-88: 8:45 am]
•IUIMG CODE IMO-SO-M
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
APR 2 51989
MJEMORANDUM
SUBJECT:
FROM:
TO:
Final Guidance on Implementing the Indian Primacy Rule
for the PWSS and UIC Programs
Robert J. Blanco, Director
State Programs Division
Drinking Water Branch Chiefs
Regions I-II and IV - X
. This memorandum transmits to you our final guidance document
on Implementing the Indian Primacy Regulations for the PWSS and UIC
programs. A copy of the final draft of this document was sent to
you on February 23 along with a request for comments. We received
comments from the Office of General Counsel and the Office of
Water. In response to these, we have made some minor changes, for
example, we have moved the discussion of Tribal Courts into the
section on Capabilities. We also clarified our discussion on
enforcement and added a Table of Contents.
I wish to thank all of you for your assistance in this
project and I hope this document will be useful to you and your
staff. Should you have any questions, please contact Betsy Devlin
(FTS 382-2303) for the PWSS program and Don Olson (TTS 382-5558)
for the UIC program.
Attachment
CUMMAM; pi
••«•••••••••••••«*
-------
TABLE OF COHTEHTS
SECTION PAGE NUMBER
I. Introduction 1
II. Treat-ent as a State 3
A. Required Inf crrr.aiion 3
B. EPA Review of Treatment as a
State Applications 9
C. Tir.e Frar.e for Processing Treatment
as a State Applications 11
III. Develop-.ent Grants 11
A. Required Ir.f orrr.ation 11
B. EPA Review 15
IV. Privacy 16
A. Required Ir.f orr.ation 16
E-. IrA Review 16
A. Treet-ent as 5 State Checklist
3. Treatment as a State Decision Process -Flowchart
C. Suggested Development Grant Goals for the PWSS and UIC Programs
-------
IKDIA1! PRIMACY GUIDANCE
April 1989
I • INTRODUCTION
Section 1451 of the Safe Drinking Water Act (SDWA)
authorizes the Administrator to treat Indian Tribes as States.
Section 1451 states: "Such treatment shall be authorized only
; c .
+. A. .
(a) the Indian Tribe is recognized by the Secretary of the
Interior and has a governing body carrying out substantial
governmental duties and powers;
ft) the functions t.o be exercised by the Indian Tribe are
vitr.iri the area of the Tribal government's jurisdiction; and
\c] the Indian Tribe is reasonably expected to be capable.
in the Administrator's judgement, of carrying out the
functions to be exercised in a manner consistent with the
-err.s and purposes of this title and all applicable
regulations."
On September 26, 1988, EPA published the final regulations
for addressing primary enforcement responsibility (primacy) for
Indian Tribes for the Public Water System Supervision (PWSS) and
the Ur.cercround Injection Control (UIC) programs (53 FR 37396).
The regulations envision a three-step process for Indian Tribes to
be Granted primary enforcement responsibility for administering a
?wss cr a UIC program. The first is to be designated eligible for
treatment as a State; the second, to apply for and receive Federal
funding tc develop program capability; and finally, to apply for
and be granted primary enforcement responsibility using the same
procedures and meeting the same requirements as States must meet.
The regulations also expand on the statutory criteria
identified above by specifying various factors the Agency will
evaluate in determining a given Tribe's eligibility for treatment -
as a State. Readers of this guidance are directed to the Preamble
of the final rule (53 FR 37396) for a thorough discussion of the
treatment as a State requirements. The regulations may be found at
40 C?R 142.76 for the PWSS program and 40 CFR 145.56 for the UIC
program.
It is important for all to be aware that Tribes rr.ay apply
for treatment as a State under either the Safe Drinking Water Act
or the Clean '.'ater Act and that once so designated, a Tribe need
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-2-
only submit infornation unique to the specific program (e.g.. PWSS
or UIC) for vhich it is applying (rather that resubir.itting all
previous treatment as a State information). (It is therefore
critical that contacts be kept a^.cng all water programs.)
After being designated eligible to be treated as a State, a
Tribe reay apply for a developrer.t grant. As has been done with the
States, development grants will be handled on a case-by-case
basis. Staff should work closely with Tribal applicants to
identify both existing and needed program capabilities. Much of
the information pertaining to existing program capabilities is
likely to be par-: of the treatment as a State application. If ths
Tribe has applied for treatment as a State for the PWSS or the UIC
program, the development grant application way reference the
treatr.ent as a State application and not repeat information already
provided. If the Tribe has applied for treatment as a State under
another program, then information en PWSS and/or UIC program
capabilities will have to be prepared and submitted. This guidance
package identifies goals to be achieved during the period of the
development grant. The Regions r.ay r.odify these suggested goals to
fit the specific situation.
The third and final application is for primacy. Once a
Tribe has completed the development phase and has demonstrated to
the satisfaction of the Regional Administrator that it can
effectively acr.irvister the prograr.., the Tribe submits an
application fcr primacy. The requirements and procedures for
applying for prir.acy are specifically defined in 40 CFR Sections
142.10 through 142.13 for the PWSS program and in 40 CFR Part 145
for. the UIC prograr.. Tribes T.ust r.eet these requirements in order
to be granted prir.acy. Ulote: the PWSS primacy regulations are
undergoing revisii... Indian Tribes applying for primacy will be
subject to the new regulations which are expected to be promulgated
•in July 198S.> When these are final, a copy will be circulated to
all for their use.)
lional staff should work with the Tribes in their Region
to fully explain the rule and its potential impact on the Tribes.
An important itess which sust bs dealt with early on is the economic
aspects of assuring a PWSS or UIC primacy program. The grant
regulations state that a Tribe must natch federal funding at 25%
unless the Tribe can demonstrate that it does not have adequate
funds, including federal funds authorized by statute, to be used
for matching purposes. In that case, the Tribal match could be
lowered tc 10%. The key point which must be communicated is that
the level of funding -v»ilmbl* for a given fiscal year is fixed,
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-3-
and consequently, an applicant -ay not receive the entire level of
funding requested. Those funds required, but not provided by
thefederal government will have to come fro- Tribal sources. An
analysis of State PWSS prograr.s indicated that although the States
are required to match federal funds at 25%, in reality they are
matching 50 to 60 % because the Agency is unable to provide any
additional resources. It is quite likely that Tribes assuming
primacy viil face similar situations.
In addition, in these early discussions, the limitations of
the privacy prograr.s rmst be pointed out. For example, the SDWA
does not provide funds for construction and/or maintenance of
drinking vater facilities nor can facilities be upgraded using SDw;
funds. It is important that these be understood at the beginning
of the process.
This guidance document is meant to serve two primary
purposes. First, it is designed to familiarize all staff with the
Indian primacy rule and its requirements. Secondly, it should giv«
Regional Staff the assistance they need to discuss the rule with
Tribes and to evaluate Tribal submissions. Finally, please note
that this guidance does not provide a detailed discussion of the .
requirements for primacy. These are handled in other materials ?.nc
staff should consult these for additional details.
Tribes must sucmi— information which demonstrates the
follcwing:
(1) Federal Jlecqc/iiirion.. The Secretary of the Interior
publishes in the Fe_deral Reg iste r a list of Federally
recognized Tribes. The applicant r.ay submit a copy of this
list to establish the fact that it has Federal recognition.
In the event.that the Tribe has been recently "recognized"
but does not yet appear on the list in the Federal Register.
the Tribe should provide copies of the appropriate paperwork
it has received from the Secretary of the Interior. If a
Tribe has other documentation which shows Federal
Recognition, it rr.ay subr.it this in lieu of a copy of the
Federal Register notice.
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-4-
( 2 ) "Governing body carrying^ out substantial duties and
powers. " The regulations require that a Tribe subr.it a"
narrative statement which shows that a Tribe is performing
these duties in providing for the health, safety, and
welfare of its Tribal members. ..Examples of the duties
include, but are not limited to, the power to tax, the power
of eminent domain, and the power to adopt civil
regulations. The regulations also require document at ion to
support the information provided in the narrative. Rather
than have Tribes provide what could be a great deal of
extraneous information, Regions should have applicants focus
the material as appropriate. For example, sor-e Tribal
constitutions are very lengthy and incorporate all Tribal
codes. It would be very tine consuming for the Tribe to
make copies of this material and also for Regional staff to
review it. The Tribe could sinply provide a copy of the
ratification page, a table of contents, and the appropriate
codes .
Most Indian Tribal governments perform essential
governmental functions traditionally performed by sovereicn
governments; however., the degrt* to which, these functions
are developed and exercised can vary widely among the
Tribes. Consequently, the Region must evaluate each
application on a case-by-case basis to determine if the
Tribe exercises the necessary duties and pcwers to promote
the health, safety, and welfare of the residents.
The narrative statements required by the regulations
1142. 76 (b) for the PWSS program and 145. 56 (b) for the UIC
program.] ir.ust include, at a minimum., the following:
A
!a) An identification of the sources of the Tribal
government's authority to carry out the governmental
functions currently being performed (e.g.. Tribal
constitution) .
x de«cription of the organizational structure of the
Tribe. This must include a description of the powers
exercised by each governmental entity, for example, police
powers and taxation. It must also include a description of
how governmental members are elected or appointed and the
length of the terms served.
(c) A description of the programs that the Tribe has
instituted to promote the health, safety, and welfare of its
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-5-
Tribal members. This must include a description of the
responsible Tribal entities for enforcing the programs and
the enforcement mechanism.
( 3) "Functions to be exercised ... are within the Tribal
government' s jurisdiction". In order to assume
responsibility for an environmental regulatory prograrr.
within the extsrior boundaries of a reservation, the Tribe
must have regulatory authority over the geographic area in
question. A Tribe's authority over the area may .appear
clouded by the existence of fee lands, federal lands, and
non-Indian or federally owned water systems within the
reservation boundaries. (These complications, however.
should not significantly affect the Tribe's application for
treatment as a State.)
The Tribe must demonstrate its legal authority over the
area in question. The Tribal Attorney General, or an
equivalent officer, must subr.it a statement certifying that
the Tribe possesses sufficient authority to regulate and
enforce the F»SS or VIC prograr. in the appropriate are?..
This statement -us" be supported by attaching copies (or
portions thereof) of appropriate treaties', Tribal
constitutions, codes, or resolutions documenting this
authority, where possible, specific language maintaining
the assertion should be highlighted or excerpted so as to
provide.the strongest ani most logical arguments for Tribal
authority.
In addition to the legal documentation, the Tribe must
submit a legal description of the area over which its
asserts-Tribal authority and a map showing the location of
this area. Finally, the Tribe should submit information
identifying specific public water systems or injection wells
over which they assert Tribal authority. Map scales are
left to the applicant's discretion, however, they should
clearly delineate the reservation boundary and public water
supply facilities and/or underground injection wells which
they consider tc be within their legal authority.
Finally, the Tribe must have jurisdiction over the
persons '(i.e.. the owners/operators of the public water
systems and/or injection wells). This is dealt with in the
section on Tribal court systems.
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-6-
(4) "Reasonably expected to be capable". The regulatory
language requires Tribes to subrr.it a narrative statement
that addresses the six criteria related to capability
identified in 40 CFR 142.76(d) for the PWSS program and in
40 CFR 145.56(d) for the UIC program. Each .of the six
criteria is listed in this section alone with an explanation
of the information which must be provided.
(a) Previous management experience [142.76(d) (1) and
145.56(d)(1)]. The Tribe's managerial skills will be
evaluated on the basis of their experience in administering
contracts and grants awarded under such authorities as the
Indian Self-Determination Act, the Indian Mineral
Development Act, or the Indian Sanitation Facility
Construction Activity Act. The narrative should state each
of the contracts and/or grants that the Tribe administers o:
has administered, and provide a copy cf each. The Tribe
should also provide a copy of any evaluations by the
awarding Agencies. EPA will consider such factors as the
variety and length of the managerial experiences end will
consider the evaluations of Tribal performance in
administering programs performed b-y the avarding Agencies
(b) Existing environmental or public health progra-s
administered by the tribal governing body^and. a copy of_
related Tribal laws, regulations, and policies.
[142.76(d)(2) and 145.56 (d) (2) ] . ' fhV'Trib* should describe
each of the programs specified above and submit the
appropriate documentation specifying the authority for
implementing the program. The description should include
the responsible Tribal entity for administering the
program. EPA will consider such factors as number of
programs the Tribe implements and their record of progress
in enforcing the, provisions of each prograr. (If this
information has been provided in the discussion of
"governing body carrying out substantial duties and powers",
then the material may be referenced and not repeated here.)
{c) Accounting and Procurement system.. [ 14 i. 7 6 i d) i 3>
and 145.56 (d) (3) ]. The Tribe must p~ro~vi.de a description of
its accounting and procurement system. EPA will review the
Tribe's system to insure that it meets established federal
guidelines (e.g.. 25 CFR 271.46).
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-7-
(d) Entities which exercise the executive, legislative.__
and judicial functions of Tribal_ goyernmen- ' [142 . 76 (d ) ( 4~f
and 145.56(d) (4) ]. The submission required under the
"substantial governmental duties and powers" is likely to
provide the necessary information as tp the executive and
legislative functions of 'Tribal government and ir.ay be
referenced by the Tribe in its application. The ir.formatior.
will be reviewed according to the criteria in that section.
Information on Tribal judicial functions is discussed
below. Please note that this information -ay also be
submitted under the "substantial governmental duties"
section or with jurisdiction. If it has been submitted
there, it may be referenced and not repeated.
Tribal court systems may vary in make-up fror.
non-Indian courts. In order for EPA to- evaluate a Tribe's
judicial system, specific knowledge of the court
organization and procedures is required. .-. second issue is
the question of how a non-Indian receives "cue process"
in a Tribal court. Both of these issues are central to
determining whether a Tribe satisfies th-= criteria fcr
treatment as a State. However. EFA cess no't intend ~o
prescribe general criteria for what it considers "good"
tribal court systems due to the fact that there are a
variety of systems which could meet the objective stated
above. Further, the effectiveness of Tribsl courts is, at
least to some extent. Tribally and culturally dependent.
This guidance is therefore confined to the types of
information that r.ust be submitted to determine a Tribe's
eligibility to be treated as a State.
At a minimum, a Tribe must submit a narrative statement
describing the following aspects of its judicial system:
(a) Overview; A general overview of the judicial
system and the source of authority (e.g.. Tribal
constitution).
(b) Lower Court. Include information on the court
structure and court rules. If two or more Tribes seek to
share program responsibilities, the relationship between the
respective Tribal courts must be specified.
(c) Appellate Court. Information similar to that
provided for the lower court system is necessary for the
Agency's understanding of the appellate court. A
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-8-
description cf the court structure and rule should be
provided and the appeals process described. If two or -ore
Tribes wish to share program responsibility, the
relationship between the appellate courts and each of the
Tribes should be addressed.
(-) Penalty System. The syste- used to levy fines cr
penalties should be described, including the statutory
authority for assessing penalties, and any minimum or
maximum penalties. If available, a schedule cf penalty
amounts should also be included.
(e) Judge Selection. The process used for selecting
court judges (including minimum qualifications) should be
specified. If judges are shared through a "circuit rider"
syster,, details of that system and the .background of court
officials should be provided.
In addition, the legal process, appeals procedures, and any
other legal rer.ecies available to Indians and non-Indians
should be specified. This infcreation is necessary to
evaluate the legal rights of non-Indians in the Tribal court
syster..
(e) Existing or proposed agency of the Indian Tribe which
wilJL assuna primary enforcement responsibility' [ 142 . 76 (d") ( 5)
and 145.56(d) (5)] . The Tribe will be required" to describe
the Agency of the Tribe which will assume prirr.ary
enforcement responsibility. The Tribe will be required to
sub-it supporting documentation which establishes the Agency
and provides a description of the authorities that the
Agency is given. An organization chart which shows the
relationship of this Agency to other Tribal Agencies will be
required. This Agency must have the authority to implement
a prinacy program and a statement from the Tribal Attorney
General or attorney representing the Tribe must be provided
as noted previously. EPA will determine in its review if
any potential conflict of interest exists between the
regulating Agency and the owner/operator of the public water
systems or underground injection wells (See information on
this under Development Grants.)
(f) Technical and administrative capabilities of the staff
to administer and manage a public water system supervision
and/or an underground injection control program.
[142.76(d)(6) and 145.56 (d) (6) ]. The Tribe ir.ust: provide =
description of the technical and administrative capabilities
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-9-
of the staff that will fill the positions in the proposed
Agency Position descriptions will be acceptable for
describing the expected capabilities. At a minimum, the
Tribe should employ individuals knowledgeable in the areas
of public health and environmental engineering and/or
science.
The Indian Health Service (IHS) presently provides
varying levels of assistance to Tribes. Many cf the areas
in which IKS provides this assistance are areas a Tribe
would have to take over if it is to be granted primacy. ~oi
example, IHS currently provides plan and specification
review for Tribes and conducts sanitary surveys at Tribal
facilities. Regional Offices should recognize these
IKS/Tribal agreements; however, these agreements will need
to clearly define the responsibilities of IKS and the Tribe
The Tribe should comr.it to assume full responsibility for
these functions.
3. EFA Review of Treatment as a State Applications.
EPA staff will review and evaluate Tribal submissions based
on the regulations and this guidance. If a Tribe's application is
found tc be lacking some needed materials, it should be returnee
for a-endr.ent by the Tribe. A' checklist of required el-sre.-ts is
provided in Attachment A to assist Regional staff in their review.
•D Federal Recognition. Regional staff should obtain and
ke=p on file the most recent Department of the Interior
Bureau of Indian Affairs (BIA) Federal Register notification
of Federally recognized Tribes. In the event a Tribe has
been formally recognized, but has not been included on the
most recent BIA Federal Register list. Regional staff should
review the relevant correspondence that the Tribe has
received front BIA. Staff may also contact appropriate IKS
and BIA offices for confirmation of a Tribe's status.
(2) "Governing body carrying out substantial duties and
powers". The Region should insure that the narrative
statement and supporting documentation show that the Tribe
has an organized governmental body which exercises
legislative, executive, and judicial powers. The records
should show an established record of orderly government
transitions and also that the government exercises and has
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-10-
exercised substantial governmental duties and powers in
implementing programs to promote the health, safety, and
welfare of its residents.
(3) "Functions to be exercised ... are within the Tribe^_
government's jurisdiction". Review of the material on
jurisdiction should be concurred on by the Office of
Regional Counsel. It is important to recognize thai: the
legislative history supports Tribal jurisdiction within
exterior boundaries of reservations relative to Tribal
health and welfare. Possible competing claims of
jurisdiction rr.ay arise in checkerboard areas where States
feel they have jurisdiction over non-Indian communities that
have been incorporated under State statute within he
exterior boundaries of the reservation. Regional Offices
should facilitate State/Tribal meeting* to resolve these
situations as soon as possible. Much of the information
provided in ite- r2 will be applicable here.
The Tribe is required to submit a legal descrip-io- and
r-ap showing the geographic area over which it claims
jurisdiction and also the location of the water syster.s
and/or ir.jection wells over' which it claims regulatory
authority. The Region should review the map submitted
carefully along with the supporting documentation (treaties,
etc.)
The Attorney General for the Tribe or an attorney
representing the Tribe is required to submit a statement
that the governmental powers and duties exercised by the
Tribe are within the authority of the Tribe. The statement
rcust include Citations to the specific Tribal statutes,
codes, resolutions, and where appropriate, judicial
decisions which demonstrate adequate authority.
(4) "Reasonably expected to be capable". Regional staff
should reroer.ber that the decision to treat a Tribe as a
State is wade very early in the process of developing Tribal
programs. The standard for the capability determination is
whether the Tribe is "reasonable expected to be capable" of
administering the program.
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C. Time Frame for Processing Treatment as a State Applications.
Within thirty (30) days of receipt of a Tribe's completed
treatment as a State application, the Regional Administrator must
notify the appropriate governmental entities (as discussed below) . .,
Notice is to include information on the substance of, and basis •
for, the Tribe's jurisdiction assertions. Each governmental entity
so notified by the Administrator shall have 30 days to comment upon
the Tribe's assertion of jurisdiction. Comments by governmental
entities are limited to the Tribe's assertion of jurisdiction (40
CFR 142.78 and 145.58).
It is suggested that the Regional Offices contact the Stats
primacy agent and any Federal governmental entities such as the
National Park Service, Department of Defense,-and the Department of
Energy as appropriate. The State primacy agency may wish to
contact any non-Indian communities that may be incorporated under
State statute and located with the exterior boundaries of the
applicant's reservation. Regional staff should request review by
the Office of Regional Counsel and by other water program staff (as
treatment as a State determinations made for one water procra-
affect other wat-er programs). The Regional Indian Affairs
Coordinator may be involved as appropriate.
*
If no competing claim of jurisdiction is received, the
Regional Office should complete processing the application wi-r.in
thirty cays. In the event there is a competing claim of
jurisdiction, the regulations require the Administrator to consult
with the Secretary of the Interior (or his designee) and to
consider any other comments that may have been received prior tc
making the determination as to whether the applicant meets the
treatment as 4 State criteria. The Region should attempt to
resolve such situations as expeditiously as possible.
III. DEVELOPMENT GRANTS
A. Required Information.
Once a Tribe has been determined to be eligible to be treated
as a State, it may apply for federal funding to develop its
program. Regional staff have to work closely with their respective
Tribes to clearly identify the various primacy program needs of
each individual applicant and the costs. As noted earlier, a Tribe
must match federal funding at 25% unless it can show it does not
have adequate funds or in-kind contributions to meet this
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-12-
requirement. In that case, the Tribe may be allowed to match only
10%. A Region's decision to allow only a 10% match should be made
very carefully as financial capability on the part of a Tribe is
extremely important if they are to assume primacy. As stated
earlier. Tribes can use certain Federal funds and/or "in-kind"
contributions to neet the match requirements.
In addition to the Tribal-specific needs, the following issues
•nust be addressed by the Tribe in its errant application.
(1) Reoulator/Regulatee conflicts must be resolved. In
order to evaluate any potential conflict of interest created
by the Tribe as both the regulator and the regulatee, the
Tribe must sub-nit an inventory of all public water systems
and/or underground injection wells to be regulated by the
Tribe. The inventory must also identify the owner of the
water system and/or the injection well. If not included as
part of the treatment as a State application, the Tribe must
also identify the existing or proposed Tribal organization
that will be implementing the primacy program. The
relationship between the primacy organization and the
organization that owns/operates the public water system(s)
and/or the underground injection wells must be defined and
clearly explained. If there is a conflict of interest, a
plan should be included or developed to resolve this
conflict.
(2) Laboratory Analyses associated with the PWSS Program.
States seeking to obtain PWSS primacy are required to
establish and maintain a State program for the certification
of laboratories conducting analytical measurements of
drinking water contaminants. The regulations at
142.10(b) (3) (ii) state that: "Upon a showing by an Indian
Tribe of an intergovernmental or other agreement to have all
analytical tests performed by a certified laboratory, the
Administrator may waive this requirement."
It is the responsibility of the owner/operatory of the
public water system to insure that samples are analyzed by a
certified laboratory. In some cases, the Tribe may by the
owner/operator of the system. In other cases, the Tribe may
choose to take on the responsibility of sample analysis for
the public water system as is the case in some States. In
all cases, it is necessary for the Tribe to have access to a
certified laboratory to insure that special sampling and
analysis can be conducted.
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-13-
Therefore. as a part of a development program, the
Tribe must submit an explanation of the type of sampling
it intends to do. The Tribe must also submit a copy of &
contract with a certified laboratory which specifies ths
type of analyses to be performed. Multiple contracts are
acceptable where one laboratory cannot perform all
required analyses. EPA will review the contracts to
ensure that the laboratory is certified by either the
State or EPA and that analyses for all regulated
contaminants can be conducted.
(3) Criminal enforcement authority (UIC program). Tribes
are not required to have criminal enforcement capability -c
qualify for treatment as a State [SDWA Section 1451(b)(2-].
This is not a major concern in the PWSS program as the only
criminal violation is tampering with public water systems
(See SDWA Section 1432). The UIC program, however, has
authority under SDWA Section 1423 to bring criminal actio-s
for willful violations. The UIC primary enforcement
responsibility regulations at 145.13(e) state that to th-=
extent that a Tribe does not have or is precluded fro--.
asserting c'rir.inal enforcement authority, the Administrator
will assume primary enforcement responsibility for criminal
violations. Further. 145.13 requires that the Memorandum cf
Agreement (a requirement for primary enforcement
responsibility described in 145.25) spell out provisions fcr
referring criminal violations to EPA. [For additional
details and a further discussion of enforcement activities
in general, see the next section on Enforcement Activities.]
The Tribal authority to pursue criminal actions is
complicated. Tribes have criminal authority over Trifcal
members but their criminal authority over Indians who are
not members of their Tribe is not always clear. Tribal
criminal authority over non-Indians is precluded by the
Supreme Court's decision in 1978 in the Oliphant v.
Suquanfish Indian Tribe case. Therefore, the Regions must be
sufficiently^lexible on this issue to accomodate different
procedures for criminal actions against Tribal members,
non-Tribal Indians, and non-Indians.
(4) Enforcement activities (both PWSS and UIC programs).
The Tribe must develop a compliance and enforcement strategy
and an enforcement agreement with EPA which spells out its
response to violations of the SDWA, of the National Primary
Drinking Water Regulations, or of its own regulations.
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-14-
The cer.pliance/enf orcement strategy should also discuss the
aniticpated use of penalties and other sanctions to address
violations, and the approach used to calculate civil
penalties should be defined. [Note: EPA expects a
reasonable effort to calculate the economic benefit of
nonccTr.pliance and to remove that benefit by assessing a
penalty.] The compliance strategy should be consistent with
EPA's PWSS and UIC Compliance Strategies (4/1/87) and other
EPA enforcement policies. EPA will review the documents to
insure this. Regional staff should consult with their PWSS
or 'JIC Enforcement Coordinators to insure consistency in
enforcement policies and approaches.
The Tribe must also have (or develop) the mechanisms to
restrain immediately and effectively any person engaging in
ar.y unauthorized activity or operation which is endangering
cr causing damage to public health or the environment (as
related to the PWSS or UIC program requirements). The
Tribal agency administering the program r.ust also have the
r.eans to sue in courts of competent jurisdiction to prohibit
?.ny threatened or continuing violation^ of any program
requirements and to assess or recover 'civil penalties as
required by 142.10 for the PWSS program and'145.13 for the
UIC program. The compliance/enforcement strategy should
explain these mechanisms also.
The Tribe is responsible for ensuring that the Tribal
counsel, Tribal Attorney-General, or appropriate Tribal
officers/staff are properly notified and consulted about
planned enforcement actions at the Tribal cr Federal level.
The compliance strategy (or Memorandum of Agreement) should
lay out this process. •«
Federal Facilities will be treated in the sane manner
as non-Federal facilities. The Regional Water Division
Director should be notified on a case-by-case basis of each
proposed enforcement action against a Federal facility.
As noted in the previous section, criminal actions may
be appropriate in certain circumstances. In the PWSS
program. .SDWA Section 1432 allows for the filing of criminal
charges for tampering or attempting to tamper with a public
water system. In the UIC program. SDWA Section 1423 allows
for the filing of criminal charges for willful violations of
any requirement of an applicable UIC program. In both
programs, deliberately making false statements to the
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-15-
federal government is a cri-inal offense. In the compliance
strategy, enforcement agreement, or Memorandum of Agreement
(UIC Program.) , the Tribe should set forth its criminal
authority over Tribal members and over non-Tribal members.
In those instances where the Tribe lacks criminal authority.
the Tribe rust commit to referring the case to the
appropirate Regional office within a reasonable time. This
requires submission to the Water Division Director of all
pertinent information and continued coordination with EPA
and the sub-.ission of additional information as it becomes
available. Specific procedures for the handling of criminal
cases should be developed. As noted earlier, these
procedures must be in the Memorandum of Agreement for the
UIC program; for the PWSS program, they can be in any
document.
B. EFA Review.
Regional Staff should conduct a careful review of. all
r.sterials submitted with a development grant application. In
addition, previous years' performance in meeting commitments should
te carefully considered before another year's funding is awarded.
The following guidance is provided to help the Regions in their
(1) Regulator/Regulatee conflicts. In the event a Tribal
application does not adequately identify a resolution of a
regulator/regulatee conflict. Regional staff may suggest the
following possible actions to minimize potential conflicts.
» -•
If the Tribe needs to establish an agency or department
to implement the program, the Tribe should not place this
agency within the same division/organization as any Tribal
agency responsible for operating public water systems or
underground injection wells. Where a responsible agency
already exists in the same division/organization, the Tribe
should consider moving it. -or the Tribe should subir.it a
description of the enforcement procedure to be followed when
a potential or actual conflict exists.
(2) Laboratory Analyses. Regional Staff should obtain a
copy of the contract or agreement ensuring access to a State
or EPA certified laboratory or laboratories.
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-16-
(3) Criminal__Enf orcement . Regional staff from both the
Office of Regional Counsel and the Water Division will be
involved from the beginning in developing the necessary
Memorandum of Agreement; hence the review process will be
continual .
(4) C.ojri!pJ:.iajnc,i3__S_tra^eoj._es . Regional staff will be involved
in the development of these over the course of the grant and
so review will be continual.
In addition to the specific issues, the checklists in
Attachment C provide models as to development grant goals and
ti-ef rar.es. Regional staff may modify these as appropriate to
specific situations: however, what is important is that all the
elements of a primacy program be developed by the end of the
development period.
Once 2 development grant has been awarded, the Tribe has 3
ye?.rs in the PWSS program and 4 years in the UIC program to assume
primacy. -During this developmental stage, EPA staff need to work
closely vith Tribes to isure that commitments are being met and. the
program is developing properly.
i re _c. _ I nf o r r a t ion...
The requirements for primacy are specified in 40 CFR Part
142 for the PWSS program and in 40^CFR Part 145 for the »UIC
program. Tribes applying for primacy must meet these requirements
and must fellow the same procedures as States. (Note: as stated
earlier, the PWSS primacy regulations are currently being revised.
It is anticipate^ rhat a final regulation will be published in July
1989. Tribes applying for primacy after that date will be required
tc comply with the new regulation.;
•
B. EPA Review. ----
The majority of the review and negotiations with the Tribe
will be performed by the project officer in the Regional Drinking
Water Brarrh. After a preliminary determination t^*t th« T^ib^ has
met all of the requirements, the Drinking Water Branch should
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-17-
forward the application to the Office of Regional Counsel and to
Grants Administration for review. (The Region should follow
established Regional procedures in this matter. Other offices rr.ay
be involved as the Region feels is appropriate.)
When the Region believes that the application is final, they
should send it to headquarters for final review and approval.
-------
TREATMENT AS A STATE
CHECKLIST
T. r_eJ t menjt _ as_ a_
State Criteria
Material to be Submitted
Acceptable
(see comments)
Unacceptable
(see comments)
Not Submitted
(sect comments)
1. Federal
Recognition
2, Possesses and
exetjfclses
substantial
governmental duties
and powers.
Copy of appropriate BIA
Federal Register
notification (or other
documentation showing
Federal Recognition).
(a) Sources of
governmental authority
identified.
(b) Description of the
organizational structure
of the Tribe including
the powers exercised by-
each governmental entity
-- executive,
legislative, and
judicial.
(c) Description of the
programs that the Tribe
has instituted to promof.
the health, safety, and
welfare of the Tribal
members.
-------
Trea tment as a S tate
Criteria
Material to be Submitted
Acceptable 4
(see comments)
Unacceptable
(see comments)
Not Subn.it tc-
(see comment
3. Tribal
Capability
Mote: You need not
repeat information
already provided in 2(b).
(a) Description of
existing managerial
capabilities emphasizing
successful managerial
performance of public
health programs:
(1) Summaries of
grants/contracts and
associated evaluations.
(2) Summary of each
environmental health
program managed and the
entity that manages it.
(3) Description of
accounting and
procurement system.
(4) Description of
Tribal agency that will
assume primacy, including
discussion of
regulator/regulatee
conf1ict.
(b) Description of Tribal
court system.
-------
Tr e a t men t_as _a_ S t a t e
Criteria
4. Tribal
Jurisdiction
.be. Submitted
(a) A map defining
exterior boundaries of
the reservation.(For SDWA
programs include location
of public water systems
and underground injection
wells.
(b) Signed statement from
the Tribal Attorney
General (or the
corresponding official)
that the governmental
duties and powers
exercised by the Tribe
are within the authority
of the Tribe.
Acceptable
(see comments)
Unacceptable
(see comments)
Not Submittec
(see comments
Regiona 1 _.Comme_nt s :
-------
Attachment B
TREATMENT AS A STATE APPLICATION PROCESS
Tribe Submits Treatment as a State
Application
within 30 days
142.76 (PWSS)
145.58 (UIC)
Regional Administrator notifies
'appropriate governmental entities."
within 30 dav*
I
142.76 (PWSS)
145.58 (UIC)
Appropriate governmental entities
submit comments (to be limited
to program specific jurisdiction).
I
'in a timely manner'
142.76 (PWSS)
145.58 (UIC)
Regional Administrator notifies Tribe of
eligibility to apply for grants.
-------
Attachment C
Suggested Development Grant Goals f.or_ the PWSS and UIC Primacy
Programs.
Tribal applicants must commit to assuming primary enforcement
responsibility within the designated 3-year period for PWS and/or
4-year period for UIC. The commitments in the development grant
agreements will also have to be negotiated on a case by case basis
for each Tribe; however, the following goals and time frames are
suggested for Regional use in discussions with their Tribes.
Public Water System Supervision Program
Year «1 Goals
- Signed Drinking Water Statute addressing at least the public
water system program;
- Codified regulations (Tribal codes) at least as stringent as
Federal regulations;
- Regulations (Tribal Codes) developed to insur-e public
participation';
- Public: notification procedures developed;
- Hire technical staff as needed;
- Resolve any regulator/regulatee conflict;
- Sanitary survey protocols/procedures developed:
- Data processing/record keeping procedures established;
Year «2 Goals
- Evaluate previous year's performance;
- Memorandum of Understanding (including referral of criminal
matters as necessary);*
- Analytical requirements addressed;
- Quality assurance,./plan developed and approved;
- Compliance tracking system developed;
- Variance and exemption policies defined;
- Compliance and enforcement strategy developed.
• Final guidance oh the development of the necessary memorandum of
understanding is still being developed.
-------
Attachment C
Page 2 of 3
Year «3 Goals
- Evaluate previous year's performance;
- Demonstrate capability to administer the progra.ro effectively.
Underground Injection Control Program
Year fl Goals
- Signed Drinking Water statute addressing at least underground
injection control;
- Codified regulations (Tribal Codes) for protection of
underground sources of drinking water (USDWs) at least as
stringent as Federal regulations;
- Inventory of UIC wells;
- Develop regulations (Tribal codes) to insure public
participation;
- Hire technical staff as needed;
- Establish data handling/record keepina procedures.
Year *2 Goals
^^_^^__^B«P~«B^^^«_n«^^B^^B *
- Evaluate previous year's performance;
- Complete adoption of necessary statute and regulatory
requirements;
- Develop compliance tracking procedures;
- Develop compliance and enforcement strategy;
- Train inspectors as needed;
- Draft program description;
- Update inventory.
Year «3 Goals
- Evaluate previous year's performance;
- Complete program description;
- Memorandum of Understanding (including referral of criminal
matters as necessary)*
- Submit copies of all pertinent UIC statutes and regulations;
- Gain experience running portions of the UIC program;
- Update inventory.
* Final guidance on the development of the necessary Memorandum of
Understanding is still being developed.
-------
Year #4 Goals
- Evaluate previous year's performance;
- Submit formal request for program approval;
- Tribe continues to gain experience running portion of program:
- Update inventory;
- Demonstrate capability to administer program effectively.
Attachment C
Page 3 of 3
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United StrtM
Environmental ProMctlen
Agency
Offic* of
Drinking Witer (WH 650)
WMhington, DC 20460
EPA 570/948-001
J»nu*ry 1988
Indian Drinking Water
Supply Study
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EXECUTIVE SUMMARY
Under Section 302(e) of the 1986 Amendments to the Safe
Drinking Water Act (SDWA), the Environmental Protection Agency
(EPA), in cooperation with the Indian Health Service (IHS), is
required to conduct a .survey of drinking water on Indian
reservations, identifying drinking water problems and the need,
if any, for alternative drinking water supplies. In accordance
with this mandate, EPA defined the scope of the study to include
only public water systems (which serve 25 or more persons or
have at least 15 service connections) due to the fact that the
SDWA Amendments define EPA's role in regulation development .as
one which applies to public, not individual water systems. In
addition to addressing these requirements, EPA used the study
as an opportunity to assess tribal awareness of the proposed
Indian primacy regulations arid to identify how existing, infor-
mation and technical assistance programs can be used more
effectively to meet the drinking water needs of American
Indians living on reservations.
As a foundation for this study, EPA integrated data from
the Federal Reporting Data System (FRDS), IHS1 Sanitation Facility
Data System (SFDS) and selected information from an IHS survey
of Indian drinking water systems in order to characterize the
conditions of community drinking water systems on Indian reser-
vations. These three information sources were originally
developed to accommodate information which would reflect the
status of the systems, but in and of themselves do not reflect
all the problems that exist. Consequently, the data bases were
supplemented with information collected daring site visits to
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- 2 -
24 tribes in 6 IHS Areas located throughout the United States.
This first-hand information provided a furttier understanding
of a portion of community drinking water quality and supply
problems and pointed out several difficulties which were not
made apparent from the data search.
Data Analysis
An analysis of the information in EPA's and IHS1 informa-
tion systems identified 836 public water systems existing on
190 reservations. Community systems represent 701 of the
public water systems which are defined in the SDWA as systems
serving 15 or more homes or 25 or more persons. Based on the
data managed in these systems (e.g., frequency and duration
of maximjm contaminant level (MCL) and monitoring violations),
it appears that most tribes are able- to consistently supply
safe drinking water. Only 6 percent of the 836 systems known
to be on reservations reported MCL violations during 1986 for
microbiological contamination. However, not all systems monitor
consistently; 37 percent reported at least one monitoring
violation, while almost 13 percent reported 10 or more during
1986. Virtually all the systems within the Billings and Portland
IHS Areas recorded at least one monitoring violation, while 67
of the 80 systems in the Aberdeen IHS Area recorded 10 or more.
Nearly a quarter'of the systems in the California IHS Area
recorded at least one microbiological MCL violation.
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- 3 -
The study's assessment of the quality of community drinking
water systems is based solely on the frequency of reported
microbiological contamination problems due to the fact that
these are often the most serious and most frequent violations.
In addition, on a national basis, little information is available
concerning the extent to which Indian community drinking water
systems are contaminated with organic chemicals, pesticides, or
metals. Reservations having the capabilities and the initiative
to provide routine operation and maintenance services seem to
be better prepared to provide good quality water than those
not conducting routine operation and maintenance activities.
IHS who is, jurisdictionally, more familiar with operation and
maintenance in most cases, measures the success of operation
and maintenance in terms-of "adeq'uacy" ratings.- IHS data
indicates that water systems funded exclusively through uset
fees have the highest adequacy ratings and the best water
quality. By contrast, systems which are financed entirely by
tribal funds have the lowest adequacy ratings and poorest water
quality. These systems, which depend on the tribal government
for all or part of their operating budgets, typically compete
for funding with other tribal concerns and preventive maintenance
f r ortnent- 1 v »-onrSc «• r\ ho n nfio r f import when r oc nil r i"<»c nr> »• n hinhs»r
— --a j — -- — - ...._.- - — -,_ .._-,
tribal priorities.
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- 4 -
Site Visit Analyses'
The ability of Indian tribes to provide clean, safe
drinking water (characterized by an absence of reported water-
borne disease outbreaks and minimal microbiological contami-
nation among the tribes visited) is a function of the tribes'
economic status, the degree of oversight by qualified water
system managers and operators, the raw water quality, and
adherence to routine preventive maintenance schedules. All
the tribes visited face some combination of water quality,
water supply, and administrative problems; the severity of
these problems depends upon a variety of factors, although the
level of financial support and/or support for collecting user
fees provided by the tribal governments appears to be the most
significant.
»
Some problems exist among Indian water systems which are
not unique to Indian tribes. Small non-Indian community water
•
systems (defined as systems serving 25 to 3,300 persons on a
regular basis) typically experience many of the same problems
that are documented in this study and share a number of charac-
teristics common to Indian community systems, including the
inability to adequately finance their systems, lack of trained
operators, and lack of routine preventive operation and main-
tenance procedures.
The capabilities of the tribes to perform the required
operation and maintenance depends on three factors: 1) the
skills, knowledge, and personal interest of the manager of the
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- 5 -
water system; 2) the level of- operator training; and 3) the
financial resources available to fund water system operation
and maintenance and to retain qualified personnel. When one
or more of these factors is lacking, preventive maintenance is
typically neglected, resulting in a gradual deterioration of
the water system, a proliferation of operation and maintenance
problems, and an increase in SDWA monitoring and MCL violations.
In most cases, the technical assistance provided by IHS is a
significant factor in keeping the community drinking water
systems functioning adequately.
The methods by which SDWA and technical information is
provided to the tribes vary by IHS Area. For the most part,
SDWA information is provided primarily by the EPA Regional
offices, and IHS provides most of the technical assistance and
technical information. Several tribes also obtain assistance
from various other sources, including independent consultants,
equipment manufacturers, Rural Water Associations, State
agencies, and Indian organizations.
Although all of the tribes visited are aware of the exis-
tence of SDWA, many do not have a thorough understanding of
the specific requirements of the Act, and have not developed
plans to implement the 1986 Amendments.
Of the reservations visited, it was observed that the
majority of the population obtains its drinking water from
centralized systems. Individuals not served by these community
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- 6 -
systems typically live in isolated rural housing and are served
by individual wells. Ground water is the most prevalent source
of drinking water on all of the reservations visited, accounting
for over 95% of the raw water sources.
In cases where bacteriological contamination occurs, it
can most often be attributed to problems in distribution systems
rather than the quality of the raw water supply. Among surface
water systems, the potential for contamination by pathogenic
organisms (i.e., protozoa, viruses) is also substantial.
Problems typically result from cross-contamination from sewage
lines or septic drainfields, service disruptions due to flooding,
and improper operation and maintenance of the system.
Except for tribes on the Colorado River and the mountain-
ous regions of Arizona, most of the tribes visited experience
seasonal water shortages and few have alternative water supplies.
Regional summer droughts in Washington State, for example, result
from increased water usage by summer resorts and the seasonal
fish-processing business. Summer shortages in Southern California
can be attributed to year-round distribution problems that are
exacerbated by increased summer demand, water loss, and a lack
of awareness of the need to conserve water. Water loss is
attributed to poor household plumbing and leaking distribution
systems and accou-nts for a substantial amount of water shortage.
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- 7 -
Most of the tribes recognize, the need to develop alternative
sources and many are devising plans to search for new sources
; with the assistance of IHS and the Bureau of Indian Affairs
1
! (BIA).
I FINDINGS AND CONCLUSIONS
{ Organizational Structure of Tribal Governments
j o Tribes may wish to re-organize their water system
! operations by assigning a manager who is responsible
for overall operation of a system (financial operations
and water delivery). Tribes may also wish to establish
an environmental management office that oversees the
water systems, monitors compliance with federal and
state regulations, and reports results to EPA and IHS.
, o Smaller tribes might consider working together and
| employing one operator who would be responsible for
• operation and maintenance for several tribes in the same
general area. This individual would visit the water
systems on a regular basis and ensure adequate and
preventive water system services to the tribes.
Sources of SDWA and Technical Information
o ' With the cooperation of IHS and various Indian organi-
zations, EPA could develop materials and training pro-
grams concerning SDWA, the Amendments, and the regula-
tions which present, in simple terms, what tribes need
to do in order to comply with the Federal regulations,
and why it is important to do so.
Role of EPA
o Tribal compliance with SDWA could be improved if tribes
were visited by the EPA drinking water coordinator on
a regular basis to assess compliance, address tribal
concerns/inquiries, and provide the most current
regulatory information.
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- 8 -
o EPA should ensure that the individual(s) in each Region
who .serve as a point of contact for tribes are
recognized by the tribe as the one who can supply
information on a variety of environmental programs.
o EPA Regional offices may wish to emphasize the impor-
tance of protocol when dealing with the Indians. An
understanding of tribal environmental concerns, a
familiarity with the conditions of the water systems,
and a sensitivity to tribal customs and lifestyles
could improve working relations between the tribes
and the coordinators.
Adequacy of Water Systems and Operation and Maintenance
o The financial status of the tribal community drinking
water systems could be improved if tribes considered
implementing an independent mechanism such as the
collection of monthly utility fees, separate from the
demands on tribal resources, to cover operation and
maintenance expenses.
o EPA and IHS need to continually emphasize the importance
of routine and preventive maintenance in order to reduce
the risk of equipment failures and potential contamina-
tion incidents.
Need for Alternative Water Supplies
o Tribes and IHS may be able to conduct studies to identify
the availability of alternative supplies and methods by
which the sources may be developed.
o Where feasible, tribes should be encouraged to negotiate
with municipalities or local utilities to obtain water
in emergency situations.
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CHAPTER ONE
INTRODUCTION
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I. INTRODUCTION
Section 302(e) of the 1986 Amendments to the Safe Drinking
Water Act (SDWA), required the Environmental Protection Agency
(EPA), in cooperation with the Indian Health Service (IHS), to
conduct a survey of drinking water on Indian reservations,
identifying drinking water problems and the need, if any, for
alternative drinking water supplies. The purpose of this
report is to address these requirements and to identify how
existing information and technical assistance programs can be
used more effectively to meet the drinking water needs of
American Indians living on reservations. In addition, the
Study Team and EPA Regional Office personnel provided tribes
with additional information on current efforts to,implement
the 1986 SDWA Amendments. Also, they were able to gather
current information on the tribes' intent to apply for primacy.
The Study Team visited 24 reservations located throughout 6 IHS
Areas (see Appendix A).
Objectives
The specific objectives of the study were to:
o Assess the rate of non-compliance with the National
Primary Drinking Water Standards on Indian reservations;
o Describe Indian drinking water systems and evaluate the
adequacy of associated operation and maintenance practices;
o Identify tribal actions designed to improve compliance
and address water quality problems;
o Characterize the need for and the availability of
alternative drinking water supplies.
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1-2
o In addition to the above objectives, EPA used this
opportunity to diseuss the SDWA and its Amendments,
tribal eligibility for primacy as well as tribal
interest in applying for primacy.
The IHS assisted in establishing the appropriate protocol for the
study, provided the Study Team with access to the IHS Sanitation
Facility Data System (SFDS), and collected detailed information
on all drinking water systems which was used to supplement SFDS
information.
The study involved two phases. In Phase I, the Study Team
integrated the EPA and IHS data bases to develop information on
the compliance status and condition of community drinking water
systems on Indian reservations. In Phase II, a field study was
conducted to review and confirm information in the data bases,
to obtain information on drinking water quality problems and
alternative sources, to discuss tribal government structure
and water system operations, to characterize the relationship
between tribes and the Federal government, and to communicate
information on the new SDWA requirements.
Phase I - Data Base Integration
A significant aspect of this study involved analyzing and
compiling the information in the EPA and IHS automated data base
systems which differ in several aspects.
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1-3
FRDS contains information on the characteristics of each
public water system (e.g., population served, capacity, source,
and type of treatment) and the SDWA compliance rates for Indian
community water systems located on reservations in eight EPA
Regions. The two remaining EP* Regions do not contain Indian
systems. SPDS contains information concerning the operation
and maintenance adequacy, population, water utility rates,
SDWA compliance, and "unmet needs." "Unmet needs" are defined
as the total identifiable need for sanitation facilities for a
community in terms of dollar volume and number of homes to
bring that community/existing sanitation facility up to a level
of feasible and desired service commensurate with accepted
public health standards and EPA regulations. Although this
information was reviewed throughout the site visits, it should
be noted that these figures had not been updated in anticipation
of the additional costs which would be incurred by systems in
order to comply with the 1986 SDWA Amendment requirements and
therefore were not used to a large extent in the data analysis.
The Study Team integrated these two data bases to develop
a comprehensive data base of drinking water systems on Indian
reservations. Water systems from FRDS were matched with water
systems in SFDS based on a unique identification number, the
public water system identification number (PWS ID), assigned
by EPA to each water system. IHS has adopted the EPA PWS ID
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1-4
number as its unique sanitation facility code number. In
addition/ information on each drinking water system that was
collected by IBS was used to verify the integrated data base
and to supplement the information managed in FRDS and SFDS.
The integration of these two information systems provided
for the characterization of compliance problems and the adequacy
of system operation and maintenance programs.
Phase II - Field Studies
Neither FRDS nor SFDS provides information related to the
cause or nature of drinking water system problems, or tribal
strategies foj obtaining SDWA information. In order to obtain
this information, the Study Team visited 24 reservations and
rancherias located in various parts of the U.S. The purpose
of these visits was to obtain information; to identify the
procedures tribes have implemented to provide an adequate
supply of potable water and to determine the source of training
and technical assistance for each tribe. In addition to offering
first-hand observations of the operation of drinking water
systems on reservations, the field visits also served to verify
the technical data obtained from FRDS and SFDS.
Methodology
The methodology involved the following tasks:
o FRDS and SFDS data were obtained for each water system
located on an Indian reservation.
o An integrated data file was developed using the FRDS
and SFDS data supplemented with information obtained
directly from the tribes.
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FIGURE 1-1: HIS AREA DESIGNATIONS
Billings
Aberdeen
Portland
California
Phoenix
Tucson
Navajo
Nashville
i
tn
Albuquerque
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1-6
o A candidate list of reservations for site visits was
developed using information from the integrated data
file, input from fwo Area offices, and input from the
EPA Regional offices. In addition, all tribes responding
to the letter were included in the list of candidates.
o A group of reservations was selected for site visits
according to a set of selection criteria including
geographical location, willingness to participate,
and characteristics of the water systems.
o The selected reservations were contacted by EPA Regional
office staff, IHS Area staff, and by EPA Headquarters
to obtain their permission for the site visit and to
encourage their cooperation. Only tribes electing to
participate were visited.
The site visits to six states were conducted during August
1987 and enabled the Study Team to acquire a firsthand perspective
of water system facilities and discuss relevant topics related
to drinking water quality. Each site visit consisted of a
series of meetings or discussions with the IHS field staff, the
EPA Drinking Water Coordinator, a representative of the tribal
>
leadership, a representative of the tribal utility authority
if one existed, and at least one system operator. The IHS
•
field staff and EPA Regional staff met with the Study Team
prior to the meetings with tribal representatives to verify the
existence of systems identified in the data base and to
obtain additional information on these systems. Information
pertaining to water systems in the area and the IHS1 and EPA's
perspective on the conditions and needs of the water systems
were also discussed. In cases where representatives from the
tribal council were unavailable, the information was collected
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1-7
from utility authority personnel and the water system operator
A summary of the information obtained during each site visit
was sent to the appropriate tribe for validation and the
submission of additional information was encouraged. Both
IBS field staff and EPA Regional staff were also given an
opportunity to comment on these summaries.
Remainder of the Report
Data Analysis Section; presents a summary of the demographics
of the reservations, characteristics of the water systems, com-
pliance information, adequacy of the operation and maintenance,
and the interrelationships among these factors.
Site Visit Analysis Section; presents an overview of the demo-
graphics and organizational structure of the tribal governments,
identifies the source of. regulatory and technical information,
discusses tribal relationships with EPA and IHS, describes
sources and adequacy of water systems, the. need for alternative
water supplies, and adequacy of operation and maintenance
practices. This section also includes suggested improvements
based on the Study Team's observations and findings.
Findings and Conclusions Section; presents the findings
which the tribes, EPA, and IHS may consider to help lead to
improved quality of drinking water on Indian reservations.
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CHAPTER FOUR
FINDINGS AND CONCLUSIONS
-------
IV. FINDINGS AND CONCLUSIONS
This chapter presents the Study Team's conclusions con-
cerning drinking water quality on Indian reservations, the need
for alternative supplies, and actions that tribes, IHS, and EPA
may undertake to improve and ensure quality drinking water
supplies on Indian reservations. Based on the absence of
reported waterborne diseases on the reservations visited,
and limited MCL violations reported in FRDS and confirmed by
the site visits, the overall quality of drinking water supplied
by community systems owned and operated by Indian tribes and
located on Indian reservations across the nation generally
compiles with Federal drinking water regulations. There are
four Areas which deviate from this generalization due to the
high number of violation incidents. The Aberdeen, Billings,
and Portland IHS Areas all recorded a significant percentage
of systems with monitoring violations (see Figure 2-5). The
importance of monitoring for contaminants is the cornerstone
of detecting health threats posed by drinking water. The
California and Tucson Areas have more serious problems with the
high percentage of systems with microbiological violations.
Because this percentage is so substantial, it also indicates
that these Areas are more susceptible to outbreaks of waterborne
diseases and other related health threats. In general, the
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4-2
fact that Indian systems appear to pose no particular risk to
health, on the basis of- t'ne-compl iance data, does not mean that
these systems are without problems. In fact, these systems
have many of the problems typical of small Indian and non-Indian
water systems overall. These conclusions are supported by the
information gathered during the site visits to 24 reservations
located in 6 IHS Areas.
On a national basis, very little information is available
concerning the extent to which Indian community drinking water
systems are contaminated with organic chemicals, pesticides, or
metals. Information in FRDS is incomplete for these contaminants.
During the site visits, the Study Team was pre-sented with
information concerning sampling and analysis that was conducted
for organic chemicals, inorganic chemicals, and radionuclides.
Due to the fact that this violation information in FRDS is
not current, the water quality assessment was based solely .on
the frequency of reported microbiological contamination problems.
Based on the information which was accessed, the Study Team
concluded that among ground water systems, which were the most
prominent source for the Indian systems, microbiological contami-
nation can most often be attributed to problems in distribution
systems, rather than problems with the raw water supplies. The
lack «">f preventive operation and maintenance procedures is often
a major contributing factor to microbiological contamination, as
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4-3
are problems resulting from cross-connection from sewage lines
or septic drainfields, service disruptions due to flooding,
and improper operation and maintenance of the systems.
Tribal Organization and Leadership
General observations made during site visits and conclu-
sions drawn from discussions with tribes, IBS and EPA Regional
office staff indicate that the attitude of the tribal govern-
ment has a substantial influence on the operation of tribal
water systems.
Tribes investing a noticeable amount of effort and
funding into their water systems generally maintain a system
which will deliver a satisfactory supply of drinking water,
even though the resources, equipment and trained operators
available may be minimal. More often than not, if the tribal
leadership demonstrates a concern for the. operation and
maintenance of the system, this attitude will be carried .through
to other tribal members and proper attention will be given to
the upkeep of the water system. In addition, it was observed
that tribes that have formal operation and maintenance organiza-
tions and good tribal support appear to have a high SDWA compliance
rate because the water system receives a concentrated amount
of attention on a regular basis.
Although it is apparent that a number of factors influence
the quality of drinking water supplies, the single most signifi-
cant one is the economic stability of the tribe. A stable, well
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4-4
established budget allows the-tribes to devote the resources
to fully maintain and repair the systems, rather than funding
short-term solutions to problems that may recur later and
increase in severity.
A second, and perhaps more difficult issue affecting
the water system operations is the attitude of tribal members
concerning the provision of water and the way it affects the
method of funding for the water system. Throughout the site
visits, several references were made to the fact that there is
often an unwillingness to pay for drinking water on reservations,
a belief which is based on the idea that water is a natural
resource and should be provided free of charge. It is often
the case that tribal members do not understand that there are
costs associated with system maintenance and the delivery of
potable water; consequently, any fees which are imposed to
help support the water system are not well received by tribal
members. This difficulty is enhanced by the fact that because
of familial relationships, most tribes are not willing to stop
the delivery of water to tribal members who do not pay the fees.
Because the attitude and organization of the tribal govern-
ment often has a substantial influence on water system operations,
several strategies related to the organizational structure of
the tribal utilities or tribal oversight offices, and sources
of funding could be considered which would improve the tribes'
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4-5
ability to provide safe drinking water. One approach would be
to appoint a manager who is responsible for overall operation
of the water systems (including both financial operations and
water delivery) and all other utilities. Depending on the
number of homes and businesses receiving water, the manager
could have two deputies, one in charge of finances and one in
charge of operation and maintenance. Smaller systems might
consider employing one operator capable of performing operation
and maintenance for several tribes located near one another.
This would ensure the detection of problems tht may arise
before they become more severe.
Finally, tribes could consider developing a stringent
preventive maintenance program to ensure the integrity of the
water system, reduce water shortages through periodic equipment
checks,and leak detection, and realize long-term savings of
capital outlays. Tribes that have the financial capabilities
may want to consider establishing environmental manager positions
or tasking the planner with the job of overseeing the water
department.
It should be noted that the problems that exist with drinking
water systems on Indian reservations are not unique to Indian
tribes. Small non-Indian community water systems (defined as
systems serving 25 to 3,300 persons on a regular basis) as a
whole experience many of the same problems that are documented
in this study and share a number of characteristics common to
Indian community systems.
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4-6
The Wade Miller study LThe Nation's Public Works: Report
on Water Supply - May 1987), observes that small water systems
operate on a marginal basis, with inadequate operational and
managerial resources to correct deficiencies. Owners/operators
of these systems are often unable to respond effectively to
emergencies or the need for unplanned improvements and yet are
expected to deliver safe and dependable supplies of water to
consumers consistently. These problems are identical to those
observed on the reservations. Despite the deficiencies encountered
by Indian community water systems, most tribes are able to
deliver drinking water that meets drinking water standards.
While similarities exist between the conditions of Indian
and non-Indian small water systems, there is one important
distinction. Indian land is held in trust by the Federal
government for the.benefit of Indian Tribes, and within Indian
Reservation boundaries, such land may be subject to tribal
government jurisdiction. The unique status of Indian lands is
recognized in the SDWA and other public health programs. The
effect is that many State and county regulations are not
enforceable on Indian lands. In particular, regulations
governing construction and location of solid waste disposal
facilities or septic tank/drainfield systems are the responsi-
bility of State and local governments. These facilities can
have adverse affects on water systems through ground water
contamination. In addition, EPA is not responsible for approving
construction plans for public water systems on Indian lands (as
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4-7
States do within their jurisdictions) nor for enforcing recommen-
dations made in sanitary survey reports which would help alleviate
operation and maintenance problems. While it is evident that
a substantial amount of technical assistance from IMS has a
positive impact on system performance, IHS does not have enforce-
ment or regulatory authority. Without external pressure on
Indian tribes to comply with such regulations, Indian Tribes
bear a greater responsibility for ensuring adequate and safe
drinking water.
Treatment of Water Systems
Based on the absence of reported disease outbreaks and the
number of reported microbiological MCL violations in FRDS, the
overall quality of community drinking water supplies on Indian
reservations does not appear to pose a substantial human health
threat. Again, it should be noted that violations may have
occurred which were not reported, and therefore not accounted
for in this analysis. Information derived from the site visits
and an analysis of the data in FRDS and SFDS however, indicates
that reported/investigated incidents of waterborne diseases are
few and are mostly limited to the IHS Aberdeen and California
Areas. In California's case, additional factors such as system
size, structural deficiencies, and lack of preventive operation
and maintenance also have an impact on the quality of finished
water.
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4-8
In order to ensure the delivery of safe drinking water,
treatment is required for all surface water sources and some
ground water sources. Because the tribes have limited financial
resources and training opportunities, treatment systems are
often difficult for them to operate and maintain.
There are methods which might be considered to overcome
difficulties with implementing treatment techniques, particu-
larly for tribes with drinking water systems that require treat-
ment beyond chlorination. These water system operations would
benefit from additional operator training, technical assistance,
and funding to assist them in effectively and efficiently
operating their systems. In cases where it is not already done,
EPA and IHS should encourage the tribes to perform routine and
preventive system maintenance to help alleviate•recurring
problems and reduce .the risk of serious equipment failures and
potential contamination incidents.
A second approach is to provide additional resources for
training and educational programs tht emphasize the importance
of routine monitoring and recordkeeping and encourage them to
develop monitoring schedules according to the SDWA requirements.
Similar to the status of compliance rates among all small
systems, the overall rate of compliance among Indian drinking
water systems could be improved. Recordkeeping would serve
both as a reminder to the tribes to conduct monitoring and as
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4-9
a tracking mechanism for EPA and IHS.
Adequacy of Operation and Maintenance/Financing
The adequacy of operation and maintenance activities
varies considerably from tribe to tribe as a result of varying
degrees of tribal emphasis, system size, economic status,
operator training, and design of the system, among other factors.
It was observed that larger reservations having one large
system which serves the majority of the population tended to
have a higher adequacy rating than smaller, less-populated
reservations with a few, smaller water systems. It seems
obvious that of all the factors affecting adequacy ratings,
the most important is the method used to finance water system
operation and maintenance.
There is a definite relationship between adequacy ratings
and t'he method of .financing, a conclusion confirmed through
discussions with various representatives .during the site visits.
Water systems supported through the collection of user fees
exhibited the highest adequacy ratings on the whole; however,
user charges are not easily administered by all tribes.
Tribal governments often cite tribal members' resistance
to fee payment as the cause for the lack of established fee
charges or collection actions. This opposition might be over-
come through the use of tribal public awareness campaigns aimed
at educating the tribal members as to the reason they need to
pay for the delivery of safe water. One tribe in the Phoenix
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4-10
area has published advertisements in the local newspaper that
inform tribal members that the water in the local river is
free, but if they want safe drinking water piped to their
homes they need to pay for that service.
To ensure an equitable charge for potable water, tribes
that have metered water systems would benefit from routine meter
repair and maintenance at all service connections. For those
tribes having financial capabilities to maintain meters and the
operator to monitor them, metering can be helpful in detecting
water loss or leakage that is a significant problem for many
of the systems covered during the site visits.
In cases where the "water systems must rely, to some degree,
on general tribal funds, tribes should consider establishing a
mechanism independent of reliance on other tribal resources,
to fund the water systems. Monthly utility fees would be an
appropriate mechanism for generating revenues. Utilizing IHS
assistance, tribes could conduct rate studies of the water
systems to determine what fees should be charged for water
usage. Fee structures, if enforced, would ensure that collec-
tions cover all operation and maintenance expenses. Tribal
government enforcement of fee payments has proven to be
effective for many tribes and should be considered by others.
Tribes could further encourage operators to seek training
and gain more knowledge of their systems by allowing utility
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4-11
directors to provide financial incentives to operators who
meet specified training and certification milestones.
In areas such as California, where operators are part-time
volunteers, tribes might consider pooling their resources in
order to hire a full-time salaried operator who can serve
several tribes. Because the majority of tribes are small and
do not maintain complicated systems, a full-time operator serving
several tribes would be more likely to have the time and expertise
to maintain the water systems than a part-time volunteer who is
likely to have many other obligations.
Need for Alternative water Supplies
It was evidenced throughout several site visits that summer
water shortages and limited storage capacity are common problems
on many Indian reservations. Many tribes have already investigated
and identified future drinking water needs based on planned or
anticipated population growth and development. In order to
ensure an adequate supply of drinking water to accompany this
expansion, it is important that the tribes and IHS continue
conducting studies to assess the actual need for additional
capacity and storage and the methods by which they may be able
to develop these necessary sources. Although several tribes
visited had conducted similar studies with IHS assistance,
tribes that have not pursued these options would benefit from
this information. If existing water resources are not sufficient
to meet future needs, plans could be developed to identify
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4-12
additional water supplies and-increase storage and distribution
capabilities.
If no alternative sources of drinking water can be identified
on tribal lands, tribes might consider alternatives such as
cooperating with local municipalities or water districts
to acquire additional sources of water. One of the puget
Sound tribes resolved this problem by trading sewage treatment
services for drinking water supplies. Where sovereignty issues
can be negotiated, tribes which have an abundant water supply
might consider selling it as a way of generating revenues to
operate and maintain their systems.
SDWA Information/Technical Assistance
Based on the information collected during the site visits,
Indian tribes have received some information concerning the
Safe Drinking Water Act (SDWA) and the Amendments. While most
tribes are aware of the statutory requirements, very few have
a thorough understanding of the existing regulations or are
aware of the specific provisions of the Amendments. At the
time the site visits were conducted, a majority of the tribes
indicated that they were not taking steps to implement the
requirements of the Amendments by making plans to upgrade
their systems.
EPA Regional offices are the primary source of the SDWA
information, although, the information provided often does
not reach the person or persons directly responsible for the
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4-13
drinking water system. This is a result of the information
being sent to the tribal office and not always being forwarded
to the system planners or to the water system operators.
Although most tribes are committed to providing an adequate
supply of drinking water, they expressed a need for a clearer,
more simplified explanation of the SDWA legislation and regula-
tions as it applies to their operations.
In accordance with the terms of the Interagency Agreement
(IAG) between IHS and EPA, EPA could consider two approaches
to help the tribes gain a better understanding of the SDWA,
the 1986 Amendments, and the National Primary Drinking Water
Regulations. One approach entails developing materials in
cooperation with IHS and Indian organizations (e.g., Intertribal
Council of Arizona (ITCA)). These would present in simple
terms what tribes need to do to comply with the Federal regula-
tions and the reasons why it is important to comply. Involving
IHS and organizations like ITCA in the preparation of these
materials could enhance the effectiveness of the presentation
by tailoring it to the concerns of tribal leaders and water
system operators.
A second approach might involve the development of training
programs offered by EPA and/or IHS to tribal leaders and water
system operators explaining the SDWA, the regulations, and the
need for monitoring to ensure the quality of the drinking water.
If the training is designed such that tribal leaders and water
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4-14
system operators could help tra-in and educate their tribal
members, problems with low fee collection rates, loss of water
due to leakage, and lack of preventive maintenance could be
overcome.
The IAG, which was developed to coordinate agency efforts
to provide assistance to the Indian communities, stipulates
that IBS will provide the tribes with technical assistance and
training while EPA provides information on the SDWA, monitors
compliance, and enforces the SDWA (see Appendix D). In some
cases, EPA provides technical assistance or consults with
circuit riders or state field office personnel. Several other
organizations provide assistance, including independent con-
tractors, equipment manufacturers, state agencies, Inter-Tribal
organizations, and rural water associations. Generally, the
available techni-cal -assistance seems to be adequate to meet
the needs of the tribes, although a greater amount of training
classes, workshops and technical assistance would prove bene-
ficial in areas such as California. Similar to the kind of
assistance offered to all small non-Indian community water
systems under state jurisdiction, technical assistance is
provided to Indian tribes through routine inspections and
sanitary surveys or in response to specific problems. In the
same way as EPA and IHS are responsible for a comprehensive
approach to delivering technical assistance to Indian community
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4-15
water systems, primacy States are likewise responsible for
developing similar programs to support the small non-Indian
public water systems under their jurisdiction.
IHS has taken a very active role in providing tribes
with technical assistance. Service unit sanitarians, utility
consultants, and engineers work directly with the tribes on
operation and maintenance problems and in many cases are able
to provide assistance on a daily basis. Some IHS Areas also
employ Operation and Maintenance Coordinators whose sole
responsibility is to work with the tribes to solve problems
and help the tribes develop the capabilities necessary to
manage their systems independently.
Roles of EPA and IHS
The respective roles of EPA and IHS have been defined under
the IAG and the Memorandum of Understanding (MOU) which was
developed in 1986 (see Appendix D). Each EPA Regional office
has been encouraged to develop a supplemental agreement with
its local IHS Area office to further define the roles of each
Agency in ensuring environmental health on Indian reservations.
EPA and IHS levels of involvement with Indian tribes vary
according to the MOU's developed and the needs and status of
the tribes under their respective jurisdictions. Although the
level of interaction and coordination between EPA and IHS differs
among the EPA Regions, compliance with the SDWA appears to be
better in Regions where EPA has a strong, technical presence.
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4-16
While this level of EPA involvement is clearly desirable,
limited resources, staff ability, and EPA/IHS agreements limit
the amount of EPA presence nationwide.
In Regions where EPA cannot maintain a strong technical
presence or a steady line of communication due to geographic
limitations, technical assistance is primarily provided by
the IHS individuals stationed on or near each reservation on
a routine basis.
As suggested in the MOU, EPA may wish to designate one or more
individuals within each Region to serve full time as a point of
contact for tribes seeking information on eanvironmental programs.
It might be most effective if these individuals have experience
working with Indian tribes and are familiar with a wide range of
Agency programs and are recognized by the tribe as a source of
information and assistance.
The credibility of the Indian Drinking Water Coordinators
contributes to EPA's success in working with the tribes. One
way to improve the credibility of the coordinator's position
is to appoint an individual who has background in or is familiar
with drinking water supply technology, has a basic understanding
of the analytical requirements of the SDWA, and a thorough
knowledge of the SDWA, the Amendments, and the regulations.
Credibility would be turther enhanced if the coordinator demon-
strated a familiarity with other relevant environmental regula-
tions and was able to refer the tribes to EPA, State, or local
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4-17
government representatives who can also assist them with these
issues. ~
The Regional offices may wish to emphasize the importance
of protocol when dealing with the Indians. As suggested in the
IAG, the relationship between EPA and the tribes could be more
positive if EPA solicited IHS input regarding communications
with the tribes. An understanding of the tribal history with
regard to environmental issues, a familiarity with the present
condition and construction of the water system, and a sensitivity
to tribal customs and lifestyles could improve tribal acceptance
of the coordinator.
The TAG also stipulates that one of EPA's major objectives
is to coordinate training and ensure that tribes are offered
ample training opportunities. EPA and IHS should coordinate
with other organizations to develop training programs specific-
cally designed to enhance tribal water system operators'
familiarity with their systems, specific treatment methods,
and to point out the benefits to acquiring state certification.
Training targeted to the type of water systems operated by a
tribe is more effective than standardized training programs
dealing with general system operations because it would address
specific problems experienced by the tribe. To the extent
possible, training should be conducted on reservations with
the equipment the tribal operators use.
Technical assistance is available from sources outside
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4-18
of EPA and IHS, as well. For_instance, in several states,
including New Mexico and Minnesota, the State rural water
associations have hired circuit riders who travel to the
reservations and work directly with Indian tribes. The circuit
riders provide the necessary technical assistance and help train
the water system operators in the proper operation of the equip-
ment existing on the reservation. The national Rural Water
Association is encouraged to work with the states and IHS to
expand the Circuit Rider Program to other states in order to
provide additional assistance to tribes with specific problems
and to provide additional training on the equipment used by
the tribes.
Summary
The provision of technical assistance and SDWA information
•
by IHS and EPA and the degree to which each agency interacts
with the tribes greatly impacts tribal attitudes toward their
water system. Consistent emphasis on routine maintenance and
attention to water quality definitely has a positive impact on
system performance when combined with other factors. For
instance, the way in which each EPA region has structured and
supported the Indian Drinking Water Coordinator position has a
noticeable influence on the drinking water quality and system
operation on each reservation. Where the level of EPA involve-
ment is minimal or where additional assistance is requested by
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4-19
the tribes, EPA might consider developing new mechanisms to
assist the tribes and improve its outreach.
*
The EPA FRDS data base, on which a large portion of the
assessment of drinking water quality problems was based, does
not contain enough current information on compliance data and
inventory. For example, there are cases where the inventory is
out of date, data for Indian water systems is missing, and
information on systems which have merged or are no longer in
operation is not current. An understanding of the nature and
magnitude of drinking water quality problems on Indian reser-
vations could be enhanced by the maintenance of an up to date
inventory of Indian community drinking water systems.
In order to overcome some of the EPA FRDS data limitations,
IHS Headquarters requested that its Area offices provide addi-
tional information.on. all drinking water systems serving Indian
tribes. This additional information was used to verify the FRDS
and SFDS data, identify data gaps, and supplement information
that was missing from FRDS. In addition, the Study Team identi-
fied other sources of information on Indian drinking water systems.
Several Regions maintain independent information systems that
track data on Indian drinking water systems. Based on an
analysis of FRDS data for the Indian drinking water systems,
it does not appear that these systems are used to update FRDS
on a regular basis. Operation of independent information
systems is appropriate for day-to-day operations, but the EPA
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4-20
Regional offices need to update FRDS on a quarterly basis, just
as primacy States routinely do.
In order to develop a single comprehensive data base of
Indian drinking water systems, the information managed by the
Regions, FRDS, SFDS, and the IHS survey should be completely
integrated. This would provide a thorough data base that
could be a valuable tool in monitoring the changes in drinking
water quality on Indian reservations as the 1986 SDWA Amendment
regulations are promulgated and implemented. IHS could also
use the data base to reevaluate the unmet needs of Indian
community drinking water systems in light of the 1986 SDWA
Amendments.
Many of the tribes visited as part of this study expressed
interest in primacy. Most-did not have a clear understanding
• •
of primacy, nor of the requirements to obtain primacy. While
there are a variety of reasons why tribes may be interested in
obtaining primary enforcement responsibilities for their water
systems, most tribes believed that it was a way to maintain
sovereignty over their water systems and obtain financial
assistance in developing environmental planning capabilities,
which are high priorities among many tribes. Although they
lack the resources to establish a strong environmental planning
organization, many tribes are currently active in planning
activities and maintain a strong desire to expand their
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4-21
capabilities. While EPA has provided incentive for improvements
through development grants in the primacy regulations, Indian
tribes can be encouraged to further develop their self-sufficiency
and emphasize the importance of overall environmental protection
whether or not they are interested in primacy or able to qualify
for it. The net result will be better operation and maintenance
of their water, sewer, and solid waste facilities and better
overall quality drinking water on a consistent basis.
It is apparent that there is not one single factor which,
if emphasized, would improve the status of Indian community
drinking water supplies in and of itself. On the contrary,
a combination and coordination of factors involving tribal
perspectives on water quality, economic status of tribal com-
munities, concise .a.nd up to date regulatory, information, and
a stable relationship among tribal authorities', EPA, and IHS
are necessary. While the overall conclusions of this analysis
indicate that the quality of finished water is in compliance
with Federal drinking water standards in most cases, there is
substantial room for improvement and enhancement to other aspects
of Indian drinking water systems.
A variety of programs are currently being developed and
implemented by EPA to address some of the existing problems
with water systems- and provide assistance to tribes in prepara-
tion for the new regulations. IHS continues to pursue methods
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4-22
of improvement which would be most beneficial to the Indian
community's sanitation facilities. The degree of each agency's
efforts within their respective jurisdictions indicates the
level of concern and importance for the elimination of health
threats posed by contamination of Indian drinking water systems,
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UNDERGROUND INJECTION CONTROL (UIC)
PROGRAM
TABLE OF CONTENTS:
EXECUTIVE SUMMARY
SUPPORTING DOCUMENTS:
• Final Rule: Safe Drinking Water Act-National Drinking Water
Regulations, Underground Injection Control Regulations, Indian
Lands (40 CRF Parts 35,141,142,143,144,145, and 146)
(SEE SUPPORTING DOCUMENTS FOR PWS PROGRAM SECTION)
• Final Guidance on Implementing the Indian Primacy Rule for the
PWSS and UIC Programs
April 25,1989
(SEE SUPPORTING DOCUMENTS FOR PWS PROGRAM SECTION)
• Wind River (Wyoming) and Uintah-Ouray (Utah)
Indian Lands Programs - Fact Sheet
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EXECUTIVE SUMMARY:
UNDERGROUND INJECTION CONTROL (UIC)
(40 CFR Parts 35,124,141,143,144,145,146, and 147)
OVERALL PROGRAM PURPOSE
The Safe Drinking Water Act (SOWA) of 1974 was enacted to protect the
quality of drinking water supplies throughout the U.S. by establishing four
major programs: the Public Water System (PWS), Underground Injection
Control (UIC), Wellhead Protection, and Sole Source Aquifer Demonstration
programs.
The purpose of the Underground Injection Control (UIC) program under the
Safe Drinking Water Act (SWDA) is to protect sources of underground
drinking water from the improper injection of fluids through injection wells.
The SDWA Amendments of 1986 allow Indian Tribes to be treated as States
for purposes of administering UIC programs. These amendments establish
rules and its implementing regulations for:
1. Applying for eligibility of Tribes for treatment as States;
2. Applying for and receiving Federal funding to support a UIC program
approved by EPA; and
3. Applying for primary enforcement responsibility on Indian Lands.
In addition, SDWA authorizes EPA to provide technical and financial
support to develop and administer the UIC program.
ELIGIBILITY REQUIREMENTS FOR TREATMENT AS STATES (40 CFR
PART 145)
Tribes may apply for treatment as States under either the Safe Drinking Water
Act or the Clean Water Act. If approved, the Tribe need only submit
information specific to the UIC program to be eligible to apply for financial
assistance and primacy for their wells.
To meet the eligibility requirements for treatment as a State, a Tribe must:
1. Be Federally Recognized. The Tribe must demonstrate that it is
included on the list of Federally recognized Tribes, published by the
Department of the Interior, or submit other appropriate
documentation.
2. Carry out Substantial Governmental Duties and Powers. EPA defines
this to mean the Tribe is performing functions to promote the health,
-------
safety, and welfare of the affected population in a defined geographic
area. (Examples of these functions include, but are not limited to, the
power to tax, the power of eminent domain, and police power.)
To address this criterion, the Tribe must submit a narrative describing:
1) its form Tribal government; 2) the types of government functions
being performed; and 3) the sources of authority to perform these
functions.
3. Have the Authority to Regulate the Quality of Reservation Waters. To
verify that it has this authority, the Tribe must include a statement
signed by the Tribal legal counsel, or an equivalent, explaining the basis
for the Tribe's regulatory authority. Included with this statement
should be appropriate supporting documentation, such as maps, tribal
codes, and ordinances.
4. Be Capable of Administering the UIC Programs. To meet this criterion,
a tribe must be reasonably expected to be capable of administering an
effective program.
PROGRAM RESPONSIBILITIES AND ASSISTANCE THAT STEM FROM
ASSUMING THE UIC PROGRAM
Primacy Responsibilities (40 CFR Part 145)
Once the Tribe has completed the development phase, which can last up to 4
years, and has shown it can administer the program, the Tribe may apply for
primacy. The requirements for primacy are defined in 40 CFR Sections 145.10
through 145.13. Underground Injection Control (UIC) program grant and
primary enforcement responsibility regulations are currently being reviewed.
The issue will be addressed in a future Federal Register Notice.
Until the Tribes are able to apply for and become eligible for grant and
primary enforcement responsibilities, the Federal UIC program, in 40 CFR
Parts 144 and 146) will be administered by the EPA on Indian Lands which do
not have existing programs. The SDWA allows flexibility to respond to the
unique conditions and needs of Indian Tribes, and EPA encourages and
accommodates requests by Tribes to tailor the Federal UIC programs to meet
their concerns.
Program Assistance
If designated eligible to be treated as a State, a Tribe may apply for a
development grant. Regional staff must work closely with the Tribes to
clearly identify the individual needs of the Tribe and the costs.
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A Tribe must match 25% of Federal funding unless it can show that it does
not have adequate funds or in-kind contributions to meet this requirement,
in which case it may be allowed to match only 10%. In addition, the grant
application must address:
1. A plan to resolve any conflicts of interest between the primacy
organization and the organization that owns/operates the wells;
2. Establishment and maintenance of a program to certify laboratories
conducting contaminant measurements of drinking water; and
3. Development of a compliance and enforcement strategy and an
enforcement agreement with EPA to respond to violations of the
SWDA, National Primary Drinking Water Regulations, or the Tribe's
own regulations.
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fact sheet
underground injection control
WIND RIVER (WYOMING) AND UINTAH-OURAY (UTAH) INDIAN LANDS PROGRAMS
SUMMARY INFORMATION
Background
The purpose of the Underground Injection Control (UIC) program
for Wind River (Wyoming) and Uintah-Ouray (Utah) Indian Lands is
to protect underground sources of drinking water (USDWs) from the
improper injection of fluids through injection wells. Although
not widely recognized, the injection of waste materials is a very
common practice. The oil and gas industry operates tens of
thousands of wells nationwide which reinject brine or brackish
wastewater brought to the surface in conjunction with the
production of oil and gas. Other types or "classes" of injection
wells include hazardous waste disposal operations, industrial
waste disposal wells and nuclear storage and disposal wells.
Although no hazardous waste disposal wells currently operate on
either of these reservations, this is a common practice in other
areas of the country and one which warrants regulation.
The UIC program was established under the authority of Part C of
the Safe Drinking Water Act (SDWA). The SDWA requires EPA to
administer UIC programs in states and on Indian Lands which do
not have approved programs. These Tribal Governments have not
applied for primacy over the UIC program. On May 11, 1987, EPA
proposed a direct federally implemented program for the Wind
River and Uintah-Ouray Indian Lands. Taking all public comments
into consideration, EPA amended and published the UIC regulations
in final form on October 25, 1988 (40 CFR Part 147) (53FR43084).
The October 25 promulgation establishes regulations to implement
UIC programs on the Wind River Indian Lands in Wyoming and the
Uintah-Ouray Indian Lands in Utah.
EPA has adopted the definition of "Indian country" found at
18 U.S.C. 1151, and set forth in full at 40 CFR 144.3, for the
purpose of defining "Indian Lands" for the Direct Implementation
UIC program.
Certain additional definitions are summarized herein;
specific, binding information and definitions are to be found in
the appropriate, published Federal Regulations. This Summary
Sheet is intended to serve as an aid to owners and operators;
however, it does not substitute for the Safe Drinking Water Act
or the regulations adopted pursuant to the statute.
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Definitions
A few terms are frequently used in UIC program regulations.
A discussion of these terms, and their applicability to the
program, follows:
UNDERGROUND SOURCE OF DRINKING WATER (USDW): The Safe Drinking
Water Act (SDWA) protects all USOWs, whether or not specifically
designated as such. The primary objective of the Underground
Injection Control (UIC) program is the protection of USDWs. By
definition, an USDW is an aquifer or its portion:
(1) which supplies any public water system; or
(2) which contains a sufficient quantity of ground water to
supply a public water system; and
(a) currently supplies drinking water for human
consumption; or
(b) contains fewer than 10,000 mg/1 total dissolved
solids (TDS) and which is not an exempted aquifer.
AQUIFER EXEMPTIONS; In the course of permitting wells, EPA is
often requested to exempt portions of certain aquifers, or
possibly entire aquifers, which qualify as USDWs. After an
aquifer has been exempted, EPA will allow injections to take
place that normally would be prohibited. For EPA to designate an
underground source of drinking water as an exempted aquifer, the
aquifer must meet the following criteria:
( 1 ) It does not currently serve as a source of drinking
water; and
(2) It cannot now and will not in the future serve as a
source of drinking water because:
(a) It is mineral, hydrocarbon or geothermal energy
producing, or can be demonstrated by a permit
application for a Class II or III operation to
contain minerals or hydrocarbons that, considering
their quantity and location are expected to be
commercially producible; and/or
(b) It is situated at a depth or location which makes
recovery of water for drinking water purposes
economically or technologically impractical;
and/or
(c) It is so contaminated that it would be
economically or technologically impractical to
render that water fit for human consumption;
and/or
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(d) It is located over a Class III (see Well
Classifications, belov) veil mining area subject
to subsidence or catastrophic collapse; and/or
(e) The Total Dissolved Solids (TDS) content of the
ground water is more than 3,000 rag/1 and less than
10,000 mg/1 and it is not reasonably expected to
supply a public water system.
The public is encouraged to comment on all proposed aquifer
exemptions. Public notice will be published in local and area
newspapers for all aquifer exemption and permit actions. Public
hearings will be held if sufficient interest is shown.
WELL CLASSIFICATIONS; There are five classes of injection wells
regulated by the UIC program. A specific well classification is
made subsequent to determination of:
(1) the type of fluid to be injected; and
(2) the stragraphic zone (formation) into which the fluid
is to be injected. Injection well classes can be
summarized as follows (specific definitions can be
found in the regulations):
CLASS I.
CLASS II.
CLASS III.
CLASS IV.
CLASS V.
Hazardous, industrial, and municipal waste disposal
wells which inject below the lowermost formation
containing an underground source of drinking water;
Injection wells associated with oil and gas
production and liquid hydrocarbon storage;
Special process wells used in conjunction with
solution mining of minerals;
Wells which are used by generators of hazardous
wastes or hazardous waste management facilities and
inject into or above an underground source of
drinking water [these wells are banned after May 25,
1989; see 144.13(a) (3 )]
Wells which do not fall into any of the other
categories, such as: recharge wells; drainage wells;
septic system wells; cesspools; in situ gasification
of oil shale and coal, etc. A total of 32 Class V
well types are specified in the Class V Injection
Wells, Office of Water Report to Congress, EPA 570/9-
87-006, September, 1987.
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Current Program
EPA will be dminist' .ng these Indian Lands programs from its
Denver Regi al Offi . In its administration of the program,
EPA will pe. zorm the following functions:
o Act on requests to exempt portions of aquifers to
accommodate injection activities.
o Establish and maintain a complete inventory of all
wells within the outer boundaries of the Reservation.
o Operate an injection well permitting program.
o Provide surveillance and enforce the program over wells
authorized by rule and by permit to ensure compliance
with federal regulations.
o Respond to emergencies.
Effective November 25, 1988, any injection well not authorized by
rule or by permit is unlawful. 40 CFR Part 144 Subpart C
(Authorization by rule) and 40 CFR Part 147 Subparts TT and ZZ
authorize the following wells for the indicated periods of time
from the effective date of the program, November 25, 1988, after
which time:
o New wells must be permitted.
o Existing Class II salt water disposal wells are
authorized for up to five years.
o Wells placed on shut-in (TA) status for two (2) years
must be properly plugged and abandoned unless an
extension is granted.
o Existing Class I and III wells are authorized for up to
one year.
o Existing Class II liquid hydrocarbon storage and
enhanced .recovery wells are authorized for the life of
the well.
o Except under certain very limited conditions, Class IV
wells must be plugged and abandoned within the first
six (6) months of the program (no later than May 25,
1989).
c Injection into Class V wells is authorised by rule
until requirements under future regulations become
available, or until EPA determines that a specific
facility should be regulated by permit.
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In the case of veils authorized by rule, the Regional
Administrator may require an operator to submit a permit
application at any time if he determines that:
0 The injection well is not complying with the provisions
of the rule.
0 The injection well has ceased to be in the category of
wells authorized by rule.
o The protection of USDWs requires that the injection
operation be regulated by requirements not contained in
the rule (i.e. a permit).
For all Class I, II, and III wells not in operation prior to
November 25, 1988, the operator must submit permit applications
and the well must be permitted before any further drilling,
construction, conversion, or injection may begin.
Whether authorized by rule or by permit, all injection well
operations must comply with EPA requirements. The requirements
for these programs can be found in 40 CFR Parts 124 (Permitting
and Appeal Procedures); 144 (UIC Program); 146 (Criteria and
Standards); the State of Wyoming, Subpart ZZ, amended with the
new Sections 147.2553 and 147.2554 (Wyoming/Wind River Indian
Reservation-Specific Requirements); and the State of Utah,
Subpart TT, amended with the revised Section 147.2251 and the new
Section 147.2253 (Utah/Indian Lands).
•
Owners and operators should note that application for, and
receipt of a UIC permit from EPA does not constitute approval for
any other State or (in the case of Federal or Indian Lands)
Federal permit which may be required for a facility or project.
Who to Contact
Required information, request for information, or questions
are to be sent to:
Chief, UIC Implementation Section
Drinking Water Branch (8WM-DW)
999 18th Street, Suite 500
Denver, Colorado 80202-2405
Telephone: (303) 293-1413
2/6/89
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0 EZDA fact sheet
underground injection control
WIND RIVER (WYOMING) AND UINTAH-OURAY (UTAH) INDIAN LANDS PROGRAMS
MECHANICAL INTEGRITY TESTING (MIT) REQUIREMENT
General
All Class I, II, and III wells must be tested for mechanical
integrity. Before a new injection well is put into operation and
prior to issuance of a permit for an existing well, and at least
once every five (5) years, injection wells must be tested for
mechanical integrity. Mechanical integrity (MI) is defined in
the underground injection control (UIC) regulations (40 CFR
146.8). The UIC requirements are summarized below:
Section
40 CFR §l44.28(g)(2)(iv) - For enhanced oil recovery or
hydrocarbon storage wells authorized
by rule, MI must be demonstrated at
least every five (5) years, when
notified in writing by EPA. The
owner or operator shall notify EPA
at least thirty (30) days before
testing (notice may be waived by
EPA).
40 CFR §144.51(p) - EPA may require the owners/operators
of permitted wells to comply with MI
testing schedules.
40 CFR S144.52(a)(8) - A permit may require MI
demonstration before injection
operations begin, if the Regional
Administrator suspects lack of MI.
»
40 CFR §146.8 - Defines MI and specifies appropriate
MI tests (see next two pages for
summary of tests).
40 CFR §146.23(b)(3) - Requires MI demonstration of Class
II wells at least every five (5)
years.
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A well has mechanical integrity if:
o There is no significant leak in the casing, tubing, or
packer; and
o There is no significant fluid movement into an
underground source of drinking water (USDW) outside the
casing through vertical channels adjacent to the
injection well bore.
This Fact Sheet addresses the mechanical integrity testing and
reporting requirements with which owners of all oil and gas
injection wells must comply.
Demonstration of the Absence of Significant Leaks in the Casing,
Tubing and/or Packer* Must be Made Using One of the Following
Methods:
o Tubing/Casing Annulus Pressure Test: Pressure test on
the casing/tubing annulus of a newly drilled or
converted well should be for a minimum of 45 minutes at
a pressure of at least 300 psig (measured at the
surface). The annulus of existing wells shall also be
tested at a pressure of at least 300 psig for a minimum
of 45 minutes. The annulus should be filled with a
non-corrosive liquid. Pressure values should be
recorded at five-minute intervals or less; a well is
considered to pass the mechanical integrity test if the
pressure change (greater or less than the imposed
pressure) is less than ten (10) percent in forty-five
(45) minutes.
o Records of Monitoring Tubing/Casing Annulus Pressure;
Annulus monitoring may be performed only after
mechanical integrity is demonstrated by an acceptable
pressure test. The positive pressure must be
maintained on the annulus and pressure must be
monitored at least monthly and reported annually. The
annulus must be filled with a non-corrosive fluid.
o Monitoring records showing absence of significant
changes in the relationship between injection pressure
and either flow rate or volume (for certain enhanced
recovery wells only). Records must be available from
time of initial injection. This monitoring may be used
only for the following Class II enhanced recovery
wells:
(a)
Existing veils vithcut packer ar.d having completed
a previous pressure test;
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(b) Existing wells without long string casing, but
with surface casing terminating at the base of
fresh water. A monitoring program shall be
established for these wells by EPA Regional
Administrator which will verify absence of
significant fluid movement from the injection zone
into the USDW.
o Radioactive Tracer Survey/Drag Method; This test is
for use with wells in which the standard pressure test
is not practical. Specific procedures for running the
test should be submitted for review by the Regional
office in advance.
o Other Demonstrations; Subject to EPA approval and must
be fully documented with detailed description of tests
and/or monitoring records which confirms the absence of
endangerment to an USDW. The owner or operator must
apply methods and standards generally accepted in the
industry.
Demonstration of the Absence of Fluid Movement Into an USDW
Through Vertical Channels Adjacent to the Injection Well Bore*
Must be Made Using One of the Following Methods;
o Cementing Records; Acceptable for Class II wells only;
a review of cementing records will be accomplished by
reviewing available data or information submitted by
the operator. The cementing records must demonstrate
no flow into a USDW, if cementing records are to be
used for this part of the MIT demonstration. The
results of a valid cement bond log (which contains the
following information: i) an amplitude curve, 2) a
transit time curve, 3) a full wave display, and 4) a
collar locator curve) may be utilized as part of the
demonstration that cementing records are adequate.
o Radioactive Tracer Survey; Acceptable by itself for
Class I, II, and III wells where the confining zone
overlying the injection reservoir is immediately
adjacent to the lowermost underground source of
drinking water. It may, however, be utilized under all
geologic conditions if run in conjunction with a
temperature or noise log; it must be run at the
proposed injection pressure.
o Temperature Log; Acceptable for Class I, II, and III
wells where geologic and well construction do not
affect validity of results. Specific procedures must
be approved by the EPA prior to testing.
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o Noise Log: Acceptable for Class I, II, and III wells
where site conditions do not affect validity of
results. Specific procedures must be approved by the
EPA prior to testing.
o Other Demonstrations: Subject to EPA approval and must
be fully documented vith detailed description of tests
and/or monitoring records which confirms the absence of
endangerment to an USDW. The ovner or operator must
apply methods and standards generally accepted in the
industry.
Mechanical integrity demonstration and testing notification:
o Owner must demonstrate mechanical integrity at least
once every five (5) years during the life of the well.
EPA may require the owner to make a demonstration at
any time (40 CFR 146.8).
o Owner must notify EPA at least thirty (30) days prior
to his scheduled nechanical integrity test date. A
shorter notification time may be allowed, but only if
notification will allow EPA to witness the test
[40 CFR 144.28(g)].
o If EPA requests that a specific well be tested, the
owner or operator will be given a reasonable period of
time to schedule such test. In most cases, tests will
be required within a 90-day time period.
* Any noncompliance which may cause endangerment of an USDW
must be reported to EPA:
(a) Orally within twenty-four (24) hours; and
(b) In writing within five (5) days of owner
knowledge.
Failure to comply with UIC regulations may result in fines
of up to $10,000 per day and revocation of the operator's
authorization to inject. *
Who to Contact
Required information, request for information, or questions
are to be sent to:
Chief, UIC Implementation Section
Drinking Water Branch (BWM-DW)
999 18th Street, Suite 500
Denver, Colorado 80202-2405
Telephone: (303) 293-1413 . 2/6/89
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^ CDA fact sheet
underground injection control
WIND RIVER (WYOMING) AND UINTAH-OURAY (UTAH) INDIAN LANDS PROGRAMS
AUTHORIZATION BY PERMIT
General
Owners of existing Class I and III wells must submit permit
applications within one (1) year of the effective date of the
program (40 CFR 144.31), by November 25, 1989. Owners of
existing Class II salt water disposal wells must submit permit
applications as expeditious as practicable, but no later than
four (4) years of the effective date of the program (40 CFR
144.31), as scheduled by EPA. Existing Class II enhanced
recovery and hydrocarbon storage wells are authorized for
injection for the life of the well or project. (EPA well
classifications detailed in 40 CFR §144.6.)
All proposed injection well operators must submit UIC permit
applications and be permitted by EPA before drilling,
construction, conversion, or injection may begin after the
effective date of this program (November 25, 1988); this includes
conversion workovers, reperforations, or tubing installation.
The permitting procedure for Class II wells includes the
following steps:
Submission of the permit application;
Completeness and technical review;
Issuance of the EPA draft permit and public notice;
Preparation and issuance of the final permit and
response to comments, where applicable;
Operator demonstration of mechanical integrity and
compliance with final permit conditions, and
Preparation and issuance of the authorization to
inject.
The owner/operator must submit the original and one copy of the
permit application and attachments to the Region VIII EPA Office.
EPA will conduct an administrative completeness review of the
application, including financial assurance. EPA may supplement
incomplete application data with information from well records.
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After reviewing the application for completeness, a letter will
be sent to the applicant specifying that either (1) the
application is complete, or (2) it is incomplete, in which case
the information needed to complete the explication will be listed
and the operator will be advised of and requested to remedy the
application deficiencies. If the applicant fails to complete the
application within a reasonable period of time, the permit may be
denied.
The permit application is then reviewed for technical adequacy
and a draft permit is prepared. A notice is published informing
the public of the opportunity to comment on the draft permit
action and to request a public hearing. (Further information on
public participation activities is included in 40 CFR Part 124).
At the conclusion of the public comment period, the comments will
be evaluated and a decision whether or not to hold a hearing will
be made. The final permit decision will take into account all
comments received. EPA's final permit decision will be routed to
the BLM, BIA, appropriate Tribes, and anyone submitting comments.
If the permit is denied, notice of the denial shall be sent to
the applicant. Upon issuance of the final permit decision, a
responsiveness summary will be sent to all commenters, together
with a copy of the final permit or denial letter. A final permit
decision will become effective thirty (30) days after notice of a
decision unless: (1) a later date is specified in the permit
decision, (2) review of the permit is requested, or (3) no
comments requesting a change in the draft permit have been
received, in which case the permit will become effective
immediately upon issuance. Construction, operation, and
reporting requirements are included in the final permit. These
are referenced in 40 CFR Part 146.
Except for all new wells authorized by an area permit, a new
injection well may not commence injection until construction is
completed, the well has passed a mechanical integrity test, the
operator has completed all "prior to injection" requirements, the
permittee has submitted notice of completion of construction to
EPA, and EPA has inspected the well and found it to be in
compliance with the permit conditions. Inspection prior to
beginning injection may be waived if the permittee does not
receive notice from EPA of intent to inspect within thJ
days from the date the permittee's notice of completed
construction was received.
Permit Application
The permit application must be submitted using the approved
forms. It must include:
A description of the activities conducted by the
applicant which require a permit.
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Name, mailing address, and location of the facility.
Operator's name, address, telephone number, and
ownership status.
A list of each owner or tenant of the land within one
fourth (1/4) mile of the site.
A listing of all other State or EPA issued permits
pertaining to the subject facilities.
A map extending two (2) miles beyond the property
boundary showing all injection wells, springs, surface
water bodies and drinking water wells listed in public
records or otherwise known to the applicant within one
half (1/2) mile of the property boundary.
A tabulation of construction data on all identified
wells penetrating the injection interval, including
hole size, casing details, top of cement, plugging
details, if applicable, etc.
For proposed new wells, plans for testing, drilling,
and construction.
For wells to be converted, copies of the daily drilling
and completion records, if available.
Plans for corrective action of improperly completed or
abandoned wells within the area of review, if
necessary.
Operating data (injection pressures and volumes).
Description of proposed monitoring equipment.
Geologic and hydrogeologic data on injection and
confining zones.
Identification of all USDWs (formation, depth, and
total dissolved solids (TDS) content of water in the
aquifer.
Injection zone water quality.
Injected fluid water quality.
Construction data (including a schematic of the well).
Proof of financial responsibility.
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Available logging and testing data for existing wells
(including results of mechanical integrity testing).
- Plugging and abandonment plan.
Area of Review
The area of review for Class II permits is defined by a fixed
radius around the well (of not less than one fourth [1/4] mile).
Area Permits
Area permits may be issued if the wells are described and
identified by location in the application; if the wells are in
the same well field, facility site, reservoir, project, or
similar unit in the same state; operated by a single owner or
operator and used to inject fluids other than hazardous wastes.
This Fact Sheet is intended to serve as an aid to owners and
operators; however, it does not substitute for the Safe Drinking
Hater Act or the regulations adopted pursuant to the statute.
Who to Contact
Required information, request for information, or questions
are to be sent to:
Chief, UIC Implementation Section
Drinking Water Branch (8WM-DW)
999 18th Street, Suite 500
Denver, Colorado 80202-2405
Telephone: (303) 293-1413
2/6/89
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EPA
fact sheet
underground injection control
WIND RIVER (WYOMING) AND UINTAH-OURAY (UTAH) INDIAN LANDS PROGRAMS
EXISTING ENHANCED RECOVERY AND HYDROCARBON STORAGE WELLS
General
For all EPA administered Underground Injection Control programs,
injection wells must be authorized to inject fluids for enhanced
oil and/or gas recovery or for hydrocarbon storage. Wells can be
authorized by rule or by an individual or area permit. Existing
enhanced recovery and hydrocarbon storage veils are authorized to
inject for the life of the well provided they meet the program
requirements described in 40 CFR §144.22. These wells must
comply with the operating, monitoring, and reporting requirements
found in 40 CFR Part §144.28. This fact sheet addresses
monitoring, reporting, and operating standards that owners or
operators of existing oil and gas enhanced recovery and
• hydrocarbon storage wells, authorized by rule, must comply with.
All new wells must be permitted by EPA prior to construction or
conversion. This Fact Sheet is intended to serve as an aid to
owners and operators; however, it does not substitute for the
Safe Drinking Water Act or the regulations adopted pursuant to
the statute.
Owners and operators should note that application for and receipt
of a UIC permit from EPA does not constitute approval for any
other State, Tribal, or Federal permit which may be required for
a facility or project.
For purposes of the UIC program, EPA has classified injection
wells into five classes. Class II includes enhanced recovery and
hydrocarbon storage wells.
Rules for Class II Enhanced Recovery and Hydrocarbon Storage
Wells
NOTICE PERIODS ARE EFFECTIVE UPON THE EFFECTIVE DATE OF THE
REGULATIONS (November 25, 1988)
o Owners or operators must notify EPA thirty (30) days
prior to the scheduled date for running a mechanical
integrity test.
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Operators must notify EPA by certified mail at least
forty-five (45) days prior to in: . iting plugging and
abandonment.
Owners or operators shall notify iPA vithin sixty (60)
days of the date injection has terminated. The veil
must be plugged vithin two year3 after termination of
injection. The Regional Administrator may extend the
time to plug in certain cases.
Owners must report change in ownership of a well within
thirty (30) days of transfer.
Owners and/or operators must prepare and submit a
plugging and abandonment plan no later than one year
after the effective date of the program. The plan must
include type and number of plugs to be set; manner in
which plugs will be set; location of plugs; estimated
cost of plugging; and type, grade, and quantity of
cement to be used.
Operators must report any noncompliance orally within
24 hours of detection and in writing within five (5)
days.
Well casing and cementing must meet applicable state
requirements that were in effect at the time of
construction (completion). All corrections must be
completed within one year of owner/operator
notification.
Owners must establish financial responsibility to
close, plug and abandon the injection well and submit
evidence to EPA of such responsibility no later than
November 25, 1989.
Operators shall determine the nature (Specific
Conductance, TDS, etc.) of injected fluids initially,
when the nature of injected fluids is changed, or when
new constituents are added.
»
•
Operators must monitor the injection pressure,
cumulative volume and flow rate at least weekly with
results recorded at least monthly and reported
annually. Annual reports must be submitted to EPA by
January 15 of the following year.
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Operators must submit an annual report including
monthly monitoring figures for injection pressure
(psig) and rate (bbl/day). Annual reports must be
submitted to EPA by January 15 of the following year.
The owner or operator must demonstrate mechanical
integrity at least once every five (5) years during the
life of the well. EPA may require the owner or
operator to make the demonstration at any time. Wells
where packer has been unseated will be scheduled for a
repeat mechanical integrity test (MIT).
Shut-in and temporarily abandoned wells are subject to
the mechanical integrity requirements.
Owners or operators must submit well inventory
information on each well within one year of program
implementation.
Owner/operator shall retain all monitoring records for
three (3) years, unless enforcement action is pending,
and then until three (3) years after the enforcement
action has been resolved.
NOTE: Failure to meet any of the above listed requirements may
be grounds for enforcement action including penalties.
Major Modifications to Existing Wells
Operators of existing wells must obtain a UIC permit from EPA
prior to making major modifications. Major modifications
include:
Any change in the currently authorized injection zone
(i.e. perforating the well casing or taking other
action to allow injection into a formation other than
the current injection zone).
Any other changes except minor modifications.
Operators are required to notify EPA prior to making minor
modifications. The Regional Administrator may require the
operator to obtain a permit for such modification in certain
cases. EPA will notify operators of changes in the regulatory
requirements and more frequent monitoring, testing, and reporting
requirements. Minor modifications include:
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Changing the injected fluid to some fluid other than
those identified on the operator's injection veil
inventory verification form (e.g. changing the injected
fluid from salt water to steam, CC>2 or a polymer). Any
change in fluid, however, must be within the definition
of a Class II injection well (40 CFR §144.3).
More frequent monitoring, testing, or reporting
prescribed by EPA to assure that the injection activity
will not allow movement of fluid into a USDW (40 CFR
§144.12) [action initiated by EPA].
Amendment of a plugging and abandonment plan.
Transfer of ownership.
Who to Contact
Required information, request for information, or questions
are to be sent to:
Chief, UIC Implementation Section
Drinking Water Branch (8WM-DW)
999 18th Street, Suite 500
Denver, Colorado 80202-2405
Telephone: (303) 293-1413
2/6/89
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fact sheet
underground injection control
WIND RIVER (WYOMING) AND UINTAH-OURAY (UTAH) INDIAN LANDS PROGRAMS
[40 CFR 147 Subparts TT and ZZj
INVENTORY REQUIREMENTS FOR RULE-AUTHORIZED WELLS
General
As specified in 40 CFR Part 144.26, owners or operators of all
injection wells authorized by rule shall submit inventory
information to the Regional Administrator of the U.S.
Environmental Protection Agency (USEPA). This fact sheet
addresses the requirements for inventory information that must be
submitted by owners or operators of rule-authorized injection
wells. This Fact Sheet is intended to serve as an aid to owners
and operators; however, it does not substitute for the Safe
Drinking Hater Act or the regulations adopted pursuant to the
statute.
Coverage & Submittal Deadline .
Rule-authorized wells are those injection wells which were in
operation prior to November 25, 1988. Inventory requirements
apply to all types of Class II injection wells. AUTHORIZATION OF
UNDERGROUND INJECTION BY RULE (Subpart C) AUTOMATICALLY
TERMINATES FOR ANY OWNER OR OPERATOR WHO FAILS TO COMPLY WITH
SECTION 144.26 BY NOVEMBER 25, 1989. Inventory information need
not be submitted if a complete permit application is submitted NO
LATER THAN NOVEMBER 25, 1989.
Contents
Owners/operators of all types of Class II injection wells are
required to provide at least the following inventory information:
1 ) Facility name and location; (Facility is defined as an
individual well, OR a group of wells with
substantially the same characteristics - i.e., all
enhanced recovery wells in a single unit.)
2) Name and address of legal contact;
3) Ownership of facility;
4) Nature and type of injection wells; and
5) Operating status of injection wells.
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This information should be submitted on the attached EPA Form
7500-48 M-79), Section IV, V, and VI.
In add on, for all Class II enhanced recovery veils and certain
Class \ rfells (sand or other backfill wells; radioactive waste
disposal wells; geothermal energy recovery wells; brine
return flow wells; automotive service disposal wells or
pits; wells used in experimental technologies; municipal and
industrial disposal wells other than Class I; and any other
Class V wells at the discretion of the Regional
Administrator),
the owner/operator shall provide a listing of all wells setting
forth the following additional information for each well; (a
single description of wells at a single facility with
substantially the same characteristics is acceptable):
For Class II enhanced recovery wells only,
6) The field name(s);
7) Location of each well or project given by Township,
Range, Section and Quarter-Section, or by latitude and
longitude, according to the conventional practice in
Utah/.Wyoming;
8) Date of original completion of each well;
9) Identification and depth of the formation(s) into which
each well is injecting;
10) Total depth of each well;
11) Casing and cementing record, tubing size, and depth of
packer;
12) Nature of the injected fluids (source);
13) Average and maximum injection pressure at the wellhead;
14) Average and maximum injection rate; and
15) Date of the last mechanical integrity test, if any.
For all Class I, II and III wells authorized by rule, certain
additional requirements are included in CFR 40 144.28, such as
Twenty-four hour reporting, Plugging and abandonment plans,
Financial responsibility. Casing and cementing, Operating
requirements, Monitoring requirements, Reporting requirements,
Notice of abandonment, and Change of ownership.
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Who to Contact
Required information, request for information, or questions
are to be sent to:
Chief, UIC Implementation Section
Drinking Water Branch (8WM-DW)
999 18th Street, Suite 500
Denver, Colorado 80202-2405
Telephone: (303) 293-1413
2/6/89
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EPA
,__. _____ fact sheet
\XI__rilP\ underground injection control
WIND RIVER (WYOMING) AND UINTAH-OURAY (UTAH) INDIAN LANDS PROGRAMS
EXISTING SALT WALTER DISPOSAL WELLS
General
For all EPA administered Underground Injection Control programs,
injection veils must be authorized to inject salt water. Wells can
be authorized by rule or by an individual or area permit. Existing
salt water disposal wells are authorized to inject for five (5)
years after approval or promulgation of the UIC program unless a
complete permit application is pending provided they meet the
program requirements described in 40 CFR, Part §144.21. These
wells must comply with the operating, monitoring, and reporting
requirements found in 40 CFR Part §144.28. This fact sheet
addresses monitoring, reporting, and operating standards that
owners or operators of existing oil and gas salt water disposal
wells must comply with until the permit is issued. All new wells
must be permitted by EPA prior to construction or conversion. This
Fact Sheet Is intended to serve as an aid to owners and operators;
however, it does not substitute for the .Safe Drinking Hater Act or
the regulations adopted pursuant to the statute.
Owners and operators should note that application for and receipt
of a UIC permit from EPA does not constitute approval for any other
State, Tribal, or Federal permit which may be required for a
facility or project.
For the purposes of the UIC program, EPA has classified injection
wells into five (5) classes. Class II includes salt water disposal
wells.
Rules for Class II Salt Water Disposal Wells
NOTICE PERIODS ARE EFFECTIVE UPON THE EFFECTIVE DATE OF THE
REGULATIONS (November 25, 1988)
o Owners or operators must notify EPA thirty (30) days
prior to the scheduled date for running a mechanical
integrity test.
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o Operators must notify EPA by certified mail at least
forty-five (45) days prior to initiating plugging and
abandonment.
o Ovners or operators shall notify the EPA within sixty
(60) days of the date injection has terminated. The well
must be plugged within two years after termination of
injection. The Regional Administrator may extend the
time to plug in certain cases.
o Owners must report change in ownership of a well within
thirty (30) days of transfer.
o Owners and/or operators must prepare and submit a
plugging and abandonment plan no later than one year
after the effective date of the program. The plan must
include nature, quantity and materials to be used; manner
in which plugs will be set; location and extent of plugs;
and estimated cost of plugging.
o Operators must report any noncompliance orally within 24
hours of detection and in writing within five (5) days.
o Well casing and cementing must meet applicable State
and/or Bureau of Land Management requirements that were
in effect at the time of construction/completion. All
corrections must be completed within one year of
owner/operator notification.
o Owners must establish financial responsibility to close,
plug and abandon the injection well and submit evidence
to EPA of such responsibility no later than November 25,
1989.
o Wells may not inject at a pressure greater than that
pressure calculated so as to assure that the pressure
during injection does not initiate new fractures or
propagate existing fractures in the injection zone.
o Operators shall determine the nature (major ions, total
dissolved solids [TDS], Specific Conductance, Specific
Gravity, etc.) of injected fluids initially, when the
nature of injected fluids is changed, or when new
constituents are added.
o Operators must monitor for the injection pressure,
cumulative volume, and flow rate at least weekly with
results recorded monthly and reported annually. The
annual report must be submitted by January 15 of the
following year.
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o Operators must submit an annual report including monthly
monitoring figures for injection pressure (psig) and
injection rate (bbl/day). The annual report must be
submitted by January 15 of the following year.
o The owner or operator must demonstrate mechanical
integrity at least once every five (5) years during the
life of the well [l44.28(g)(2)(iv)(A)]. EPA may require
the owner or operator to make the demonstration at any
time. Wells where the packer has been unseated will be
scheduled for a repeat mechanical integrity test (MIT).
o Shut-in or temporarily abandoned wells are subject to
mechanical integrity requirements.
o Owners or operators must submit well inventory
information on each well within one year of program
implementation (by November 25, 1989).
o Owner/operator shall retain all monitoring records for
three (3) years, unless enforcement action is pending,
and then until three (3) years after the enforcement
.action has been resolved.
NOTE: Failure to meet any of the above listed requirements may
be grounds for enforcement action including penalties.
Major Modifications to Existing Wells
Operators of existing wells must obtain a UIC permit from EPA prior
to making major modifications. Major modifications include:
Any change in the currently authorized injection zone
(i.e. perforating the well casing or taking other action
to allow injection into a formation other than the
current authorized injection zone).
Any other changes except minor modifications.
Operators are required to notify EPA prior to making minor
modifications. The Regional Administrator may require the operator
to obtain a permit for such modification in certain cases. EPA
will notify operators of changes in the regulatory requirements and
more frequent monitoring, testing and reporting requirements.
Minor modifications include:
Changing the injected fluid to some fluid other than
those identified on the operator's injection well
inventory verification form (e.g. changing the injected
fluid from salt water to steam, C02 or a polymer). Any
change in fluid, however, must be within the definition
of a Class II injection well (40 CFR §144.3).
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*
More frequent monitoring, testing or reporting prescribed
by EPA to assure that the injection activity will not
allow movement of fluid into a USDW (40 CFR Si44.12)
[action initiated by EPA].
Amendment of a plugging and abandonment plan.
Transfer of well ownership.
Who to Contact
Required information, request for information, or questions
are to be sent to:
Chief, UIC Implementation Section
Drinking Water Branch (8WM-DW)
999 18th Street, Suite 500
Denver, Colorado 80202-2405
Telephone: (303) 293-1413
2/6/89
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