United States
Environmental Protection
Tribal  Primacy:
An Overview
         :or the Safe Drinking Water Act's
         Public Water System Supervision Program

Office of Water (4606M)
EPA 816-K-02-007
August 2002                                                   Printed on Recycled Paper

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

        administrative expertise
        Financial resources

What  is  Primary Enforcement
Authority,  or  "Primacy"?
Primacy: The process through which States and Tribes
implement and enforce federal environmental regulations.
    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-
 •   Reporting each regulated entity's compliance
    to EPA
 •   Adequate staffing to effectively run the
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
            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.

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
      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

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

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
   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

   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.

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
         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
 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-
A  The desire to strengthen Tribal
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
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
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.

 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
    Any additional documentation that EPA may
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.

How to  Attain  Primacy
       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.
Once Primacy is achieved, the ongoing responsibili-
ties associated with maintaining a Primacy program
are substantial. Primacy is not granted perma-
nently—it 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
                                           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

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
   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.
Funding for Tribes
Grant Funding

      GAP Grants
GAP Grants (40 CFR §35.540-547) are intended
to enhance Tribal capacity for developing and
administering core environmental protection
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

  EPA-PWSS  Regional  Contacts
  U.S. EPA Region I
  1 Congress Street, Suite 1100
  Boston, MA 02114-2023
  Phone: (617) 918-1590
  U.S. EPA Region II
  290 Broadway, 24th Floor
  New York, NY 10007-1866
  Phone: (212) 637-3564
U.S. EPA Region IV
61 Forsyth Street, SW
Atlanta, GA 30303
Phone: (404) 562-9438

U.S. EPA Region V
77 West Jackson Boulevard
Chicago, IL 60604
Phone: (312) 353-2087
U.S. EPA Region VI
1445 Ross Avenue
Dallas, TX 75202-2733
Phone: (214) 665-2297

U.S. EPA Region VII
901 North 5th Street
Kansas City, Kansas 66101
Phone: (913) 551-7410

U.S. EPA Region VIII
1595 Wynkoop Street
Denver, CO 80202-1129
Phone: (303) 312-6269

U.S. EPA Region IX
75 Hawthorne Street
San Francisco, CA 94105
Phone: (415) 947-8707

U.S. EPA Region X
1200 Sixth Avenue
Seattle, WA 98101
Phone: (206) 553-4350

Office of Water (4606M)
EPA 816-K-07-002
June 2007                                                               Printedon RecededEper