United States
Environmental Protection
Agency
Tribal Primacy:
An Overview
:or the Safe Drinking Water Act's
Public Water System Supervision Program
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Office of Water (4606M)
EPA 816-K-02-007
www.epa.gov/safewater
August 2002 Printed on Recycled Paper
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ntroduction
In 1974, the United States Congress passed the Safe
Drinking Water Act (SDWA) to maintain and
improve the quality of the nation's drinking waters.
The Act included three major programs:
O Public Water System Supervision Program (PWSS)
Underground Injection Control Program (UIC)
Sole Source Aquifer Program
Congress understood that
authority alone cannot imple-
ment a program; enforcement
is a crucial aspect of any
regulatory program. Congress
also recognized that the most
effective way to administer the
PWSS regulatory Program was
to assign some of the regulation, implementation
and enforcement functions to other responsible
entities. Therefore, the Act included provisions for
States to gain primary enforcement authority, or
Primacy, over public water systems through the
PWSS Program. The Environmental Protection
Agency (EPA) continued to develop regulations,
but assigned enforcement authority to individual
States that qualified for this responsibility. EPA
then oversaw the enforcement programs run by the
States. The Primacy program has been very suc-
cessful for States implementing SDWA programs.
Because of their unique status as autonomous
domestic nations, Tribes were not included with
the same consideration as States when the SDWA
was initially passed. Tribal drinking water systems
were directly regulated by EPA. Tribes were not
eligible to assume the enforcement functions that
EPA assigned to States.
In the 1986 SDWA Amendments, Congress added
provisions that allowed each federally-recognized
Tribe to assume primary enforcement authority for
the public water supplies within its jurisdiction. To
date, one Tribe has applied for and obtained Pri-
macy status for the PWSS Program.
This pamphlet will enable Tribal representatives to
make informed decisions on whether or not to
apply for Primacy. Tribes seeking Primacy must be
prepared to develop and maintain the following
necessary components of a successful environmental
program:
Organizationalstructures
Technicaland
administrative expertise
Financial resources
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What is Primary Enforcement
Authority, or "Primacy"?
Primacy: The process through which States and Tribes
implement and enforce federal environmental regulations.
"Primacy"
Gives States and Tribes primary enforcement
responsibility for environmental programs
under SDWA
Allows a Tribe to more fully exercise its
sovereign powers by assuming the
responsibility for establishing and enforcing
environmental rules and regulations
Expands a Tribe's role in the environmental
regulation of its lands
For most Tribes, enforcement is currently the
responsibility of EPA's regional offices. Since the
development of the 1986 SDWA Amendments,
Tribes have had the option of attaining Primacy for
the PWSS Program.
Components of a Primacy program include:
6 Legal authority to enforce regulations, and
£ Staffing and financial resources to implement
the program.
Implementation Involves:
Identifying regulated entities
Informing each regulated entity of the
requirements of the rules
Tracking and verifying compliance
Taking enforcement action in response to non-
compliance
Reporting each regulated entity's compliance
to EPA
Adequate staffing to effectively run the
program
EPA maintains oversight responsibility over all
Primacy programs, and must ensure that each
Primacy Agency is meeting its enforcement
responsibilities on an ongoing basis.
Primacy is not:
A source of funds to construct, expand, or
repair a public water system
A program to subsidize water bills
Authority to regulate water systems outside of
tribal jurisdiction
Funding to purchase equipment
Authority to operate a program without EPA
oversight
In seeking Primacy, a Tribe must
review its environmental protection
strategy, evaluate its governmental
and administrative organization and
capabilities, and consider its
available resources. The formation
and administration of an independent Tribal agency
to enforce drinking water codes and regulations can
be very costly. EPA assistance is limited and is not
sufficient to cover all program costs.
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Important Considerations
Regarding Primacy
Before a Tribe considers pursuing Primacy
for the PWSSprogram, it should fully
explore the implications ofPrimacy. Key
points to consider include:
Sovereignty and Self-Determination
For Tribes, the greatest advantage of attaining
Primacy is the opportunity for expanded self-rule.
Like States, many Tribes would prefer to address
environmental issues at a local level rather than
have EPA administer these programs.
Tribes exercising Primacy will be able to make
decisions regarding resource development on
lands under their jurisdiction. Primacy brings
regulatory control closer to home.
The Tribe would have the authority to establish
drinking water rules and regulations, at least as
strict as EPA's, for Tribal lands.
Adopting and maintaining rules and regulations
at least as strict as EPA's can be difficult. These
rules are amended often, and Primacy Agencies
are required to maintain compliance with
amendments. Primacy Agencies must also revise
their programs each time a new rule is
promulgated.
A Tribal Primacy
program would be
responsible for regulating
and enforcing compliance
violations by water utilities
or water purveyors. If
violations occur,
enforcement action must be taken in order for
Tribes to maintain Primacy. If this does not
occur, EPA may rescind Primacy and conduct
enforcement actions.
Tribes would regulate civil jurisdiction
over the actions of both Tribal and non-Tribal
members. This would include establishing
administrative procedures for civil enforcement.
Enforcement against non-Tribal members can
pose problems and may require Federal
assistance.
Tribal governments would be able to provide
direct services to owners/operators of public
water systems. Regulation at a local level allows
for more responsive enforcement.
This responsibility requires that the Tribe
maintain a staff with adequate technical
expertise.
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Important Considerations
Regarding Primacy (continued)
Tribal Administration and Organization
Indian Country Environmental Resources
Primacy over the PWSS Program could help to
strengthen Tribal governments.
A Tribe that has Primacy will have to
establish an independent Tribal regulatory
organization consisting of a professional staff
that will enforce drinking water rules and
regulations.
A major concern for Tribes considering
Primacy is the potential conflict of interest that
could develop if the Tribe owns and operates
public water systems. A situation in which the
Tribe directly regulates itself would be
undesirable. Tribes would have to establish a
separation between their water utility group and
their enforcement group, to ensure there is no
conflict of interest.
Primacy would give Tribes an opportunity to
play a more prominent role in the protection of
public health and the environment on Tribal
lands. This could enhance a Tribe's role in
regional environmental management decisions.
Primacy can aid Tribes in asserting
jurisdictional authority over their land and
water.
Tribal codes could be enhanced through the
development of Tribal environmental laws
specifically designed to meet reservation needs.
Tribal regulatory enforcers would be in a
position to identify environmental problems
specific to their land and to seek solutions to
these problems.
Primacy can provide an opportunity to develop
data useful to long-term natural resource
management decision-making.
Data acquisition, data management, and
reporting are costly and may be beyond the level
of EPA grant assistance available. Monitoring
and environmental
protection requires
obtaining and
retaining technical
expertise, which
would be beneficial
yet costly.
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Important Considerations
Regarding Primacy (continued)
Costof Establishingand Maintaining Program Choosing WhethertoSeekPrimacy
The most substantial obstacle to obtaining and
maintaining Primacy over the PWSS Program is
cost.
Primacy for the
PWSS Program will
require the Tribe to
develop technical
expertise and maintain
staff and funding neces-
sary to properly adminis-
ter the Program.
Although grant funding is available for
administration of this Program, it is not
adequate to meet the total costs. Grants require
matching funds from the Tribe. Because of
limited grant funds, the Tribe may need to
provide funding beyond the match requirement.
Development of additional administrative
structures and programs may pose both
organizational and financial problems, especially
for small Tribes.
The legal costs of developing a program and
enforcing regulations, as well as resolving
potential issues with affected non-Tribal
landowners and other affected parties, can be
substantial.
A thorough weighing of costs and benefits must
be part of the decision-making process when
considering Primacy.
A Tribe may consider seeking
Primacy if they have:
A The desire, commitment, and ability to
enhance Tribal autonomy and self-
determination
A The desire to strengthen Tribal
government
A The desire to play a stronger role in the
protection of the public health on Tribal lands
A Carefully considered all the advantages and
disadvantages of Primacy discussed in this
pamphlet.
A Tribe may decide
against Primacy if:
The level of public health and
environmental protection currently
provided by existing agencies is
deemed adequate to protect the
drinking water delivered to Tribal
consumers and to ensure an
acceptable quality of source water.
A The availability of financial resources, technical
expertise, and the Tribe's ability to develop and
maintain a regulatory and enforcement program
are insufficient.
A It could adversely impact Tribal budgets, possibly
diverting funds from other essential Tribal
programs.
A The costs of operating a Primacy program, which
are greater than the grant funds available from the
federal government, are more than the Tribe can
afford to maintain.
A, The potential for political or legal conflict over
jurisdictional issues exists.
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How to Attain Primacy
Three steps toward achieving Primacy:
Step 1: Eligibility
Step2: Program Development
The first step toward
Primacy for the PWSS
Program is for a Tribe to
be approved as "eligible"
by EPA. Eligibility
indicates that the federal
government agrees that
the Tribe has the same right as any State to apply
for enforcement authority.
An application for eligibility
must contain:
A statement that the Tribe is recognized by
the Secretary of the Interior
A narrative statement demonstrating that the
Tribe has a governing body carrying out
governmental duties and powers over a
defined area
Identification of a legal jurisdiction
Documentation illustrating that the Tribe is
capable of administering an effective PWSS
Program
Any additional documentation that EPA may
request
Once the Tribe has received eligibility status, its
next step is to develop a Primacy program for the
PWSS Program. Program development is a costly,
time-intensive endeavor. At the beginning of this
process, the Tribe should consider seeking grant
funding to help with the cost of developing the
Program. The Tribe
should also study and
evaluate the different
Primacy requirements
for the PWSS Program
(keeping in mind the
Tribe's current
capabilities), and
develop an appropriate
timeline for meeting these requirements. Tribes
should refer to the regulations and contact their
regional EPA representative to obtain program-
specific information.
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How to Attain Primacy
(continued)
Step3: Application Submission
NextStep: Retaining Primacy
Once a PWSS Program is
developed, an eligible Tribe
can submit an application for
Primacy to EPA. If the
application meets all the
regulatory criteria,
demonstrating that the Tribe
has the ability to adequately
protect the public health by
regulating public water
systems, Primacy may be delegated.
Application
Once Primacy is achieved, the ongoing responsibili-
ties associated with maintaining a Primacy program
are substantial. Primacy is not granted perma-
nentlyit is a status that must be maintained. EPA
conducts annual Primacy Agency program reviews to
assess the success and adequacy of each program.
Under these reviews, the Tribe's regulatory actions
will be closely examined.
Continuation of Primacy is
dependent on:
Maintaining an adequate program that
complies with existing as well as new and
revised EPA rules
System oversight
Supervision and enforcement of violations of
regulations
SDWA regulations are becoming more
comprehensive; it will require a great effort on the
part of the Tribe to develop and maintain
regulations at least as stringent as EPA's. If a Tribe
is not able to fulfill its Primacy obligations, EPA
may revoke the Tribe's Primacy status and take over
the program's supervision and enforcement
responsibilities. A high standard of performance is
placed on Tribes and States that are granted
Primacy.
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How Can EPA Help?
Technical Assistance
EPA provides technical assistance
to States and Tribes by:
developing programs
conducting surveys
developing regulations
organizing data-collecting, data-storage, data
retrieval and reporting procedures
providing on-going training seminars
United States
Environmental Protection
Agency
publication of technical guidance documents
publication of implementation guidance
documents for regulations.
Grant Funding
EPA provides financial assistance to Tribes through:
1. SDWA grants
2. General Assistance Program (GAP) grants
3. Performance Partnership Grants (PPG)
Q SDWA Grants
Through the SDWA (Section 1443), Congress
appropriates funding for the PWSS Program.
These funds are awarded to States and Tribes to
carry out PWSS Programs. The PWSS funds are
provided to each State and Indian Tribe based on
population, area, number of public systems, and
need. The grants provide funding for:
Primacy program/These are annual grants to
States and Tribes that have Primacy for the
purpose of maintaining their Primacy program.
Primacy development: These grants are for
States or Tribes that are in the process of
developing programs for a Primacy application.
Direct implementation: These funds are
provided to EPA Regions for direct implemen-
tation of the PWSS Program for States and
Tribes that do not have Primacy.
SDWA
Funding for Tribes
PWSS
Grant Funding
FY2006
$6,325,400
FY2007
$6,325,500
GAP Grants
GAP Grants (40 CFR §35.540-547) are intended
to enhance Tribal capacity for developing and
administering core environmental protection
programs.
PPGs
PPGs (40 CFR §35.530-538) can be used for EPA-
delegated, authorized, or approved activities, such
as primary enforcement, and for any environmental
project permitted under 40 CFR §35.501.
For more information on GAP Grants and PPGs, see EPA's American Indian
Environmental'Office'swebsite at:http://www.epa.gov/indian/laws3.htm
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EPA-PWSS Regional Contacts
REGION!
U.S. EPA Region I
1 Congress Street, Suite 1100
Boston, MA 02114-2023
Phone: (617) 918-1590
REGION II
U.S. EPA Region II
290 Broadway, 24th Floor
New York, NY 10007-1866
Phone: (212) 637-3564
REGION IV
U.S. EPA Region IV
61 Forsyth Street, SW
Atlanta, GA 30303
Phone: (404) 562-9438
REGION V
U.S. EPA Region V
77 West Jackson Boulevard
Chicago, IL 60604
Phone: (312) 353-2087
REGION VI
U.S. EPA Region VI
1445 Ross Avenue
Dallas, TX 75202-2733
Phone: (214) 665-2297
REGIONVH
U.S. EPA Region VII
901 North 5th Street
Kansas City, Kansas 66101
Phone: (913) 551-7410
REGIONVIH
U.S. EPA Region VIII
1595 Wynkoop Street
Denver, CO 80202-1129
Phone: (303) 312-6269
REGION IX
U.S. EPA Region IX
75 Hawthorne Street
San Francisco, CA 94105
Phone: (415) 947-8707
REGION X
U.S. EPA Region X
1200 Sixth Avenue
Seattle, WA 98101
Phone: (206) 553-4350
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Office of Water (4606M)
EPA 816-K-07-002
www.epa.gov/safewater
June 2007 Printedon RecededEper
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