Revised Interpretation of Clean Water Act Tribal  Provision -
                      Proposed Rule (820-F-15-006)
                           Frequently Asked Questions
                                 August 7, 2015

1.  What are the environmental benefits of a tribe getting TAS?

   Obtaining treatment in a similar manner as a state (TAS) for Clean Water Act regulatory
   programs enables tribal governments to make decisions and carry out program
   responsibilities affecting their reservations, their environments, and the health and
   welfare of the reservation populace.

   Tribes with TAS for the water quality standards program can:
             Establish water quality goals to protect reservation water resources.
             Ensure that facilities within or upstream from the reservation protect the
             tribe's EPA-approved water quality standards applicable to tribal waters.
             Designate uses of water bodies that may include cultural or traditional

   Tribes with TAS for the section 402 or 404 programs can issue permits themselves, and
   no longer need to rely on the federal government to issue the permits.

   EPA and tribal partners have collaborated to develop materials describing how tribes
   can obtain TAS and operate successful water quality standards programs. See such
   topics as "Training," "Publications and Videos" and  "Case Studies" on our website about
   EPA's partnership with tribes at index.cfm.

2.  Once EPA approves a tribe as eligible to administer a regulatory program, what
   responsibilities does the tribe have?

   The tribe would generally assume the same responsibilities that a state assumes in
   administering the same program.

   For the water quality standards program, an authorized tribe must establish water
   quality standards for its waters. In administering the program, the tribe must comply
   with 40 CFR part  131, the same regulation that applies to state standards. For example,
   the regulation requires an authorized tribe to adopt its standards under tribal law after
   providing for  public participation and to submit the standards to EPA for review and
   approval or disapproval. Every three years thereafter, an authorized tribe must review
   its standards and revise them as necessary. To date, EPA has approved TAS for 50 tribes
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   for a water quality standards program; 40 of these have successfully adopted EPA-
   approved standards. A list of these tribes is available at

   Similarly, when a tribe receives TAS for a section 402 or 404 permit program, it must
   comply with EPA regulations in 40 CFR part 123 or 233 respectively. No tribes have yet
   been approved by EPA to administer either of these programs.

3.  Does EPA's approval of a tribe's TAS application concurrently approve the tribe's
   water quality standards?

   No.  EPA's approval of a tribe's TAS application is not an approval or disapproval of the
   tribe's water quality standards. EPA review and approval or disapproval of the tribe's
   water quality standards is a separate Agency action. A tribe's TAS application must be
   approved for the tribe to be eligible to administer water quality standards and water
   quality certification programs and for  EPA to act on any submitted tribal water quality
   standards.  Although tribes can submit a TAS application and their actual water quality
   standards simultaneously, EPA takes separate actions on the distinct submissions.

4.  How would this rule change a tribe's application for TAS for a Clean Water Act
   regulatory program?

   Much of the requirements would remain unchanged: demonstrating that the tribe is
   federally recognized and has a reservation; that the tribe has a governing body carrying
   out substantial governmental duties and powers; that the functions to be exercised by
   the tribe pertain to the management and protection of water resources within the
   borders of the reservation; and that the tribe be reasonably expected to be capable of
   carrying out the functions to be exercised in a manner consistent with the terms and
   purposes of the Act and applicable regulations.

   The effect of this proposal would be to relieve tribes of the need to demonstrate their
   inherent authority to administer Clean Water Act regulatory programs. In particular, this
   proposal would eliminate any need to demonstrate that the applicant tribe retains
   inherent authority to regulate the conduct of nonmembers of the tribe on nonmember
   fee lands under the "Montana test" established  by the Supreme Court in 1981. Instead,
   applicant tribes would be able to rely on the congressional delegation of authority in
   section 518 as the source of their authority to regulate their entire reservations under
   the Act, without distinguishing among various categories of on-reservation land.

5.  What is inherent regulatory authority? How does it differ from congressional
   delegation of authority?

   These terms describe two possible sources of tribes' regulatory authority, which for
   purposes of the rule refers to authority to administer Clean Water Act regulatory
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       programs pursuant to section 518. Although the source of authority is important in
       establishing a foundation for a tribe's actions under the Clean Water Act, the revised
       interpretation would not affect how the tribe would  ultimately implement that
       authority. Tribes implementing EPA-approved Clean Water Act regulatory programs
       would continue to be subject to the same basic programmatic requirements as states.

       Under EPA's 1991 cautious interpretation of section 518, the source of an otherwise
       eligible tribe's authority to regulate under the Clean Water Act derives from the tribe's
       retained inherent governmental authority, consistent with principles of federal Indian
       common law. Under such principles, tribes generally have the inherent authority to
       regulate activities of their own members and territories. To regulate activities of
       nonmembers on nonmember-owned fee lands within a reservation, under a 1981
       Supreme Court Indian law case, Montana v. United States1 and its progeny, a tribe
       would generally need to demonstrate that nonmember conduct threatens or has some
       direct effect on the political integrity, the economic security, or the health or welfare of
       the tribe. This is termed the "Montana test." Thus, under the 1991 interpretation EPA
       requires an applicant tribe to demonstrate its inherent authority, including showing how
       it meets the Montana test where necessary.

       EPA's proposed revised interpretation that the Clean Water Act includes an express
       congressional delegation of authority for tribes to administer regulatory programs under
       the Act means that the  otherwise eligible tribe can generally rely on the delegation as its
       source of authority.

   6.  How are reservation boundaries determined?

       A tribe applying for a Clean Water Act regulatory program must identify the  reservation
       area it seeks to regulate. To do so, the tribe would generally submit a map or legal
       description of the reservation as part of its TAS application.

       EPA would consider the tribe's submission in light of any information EPA may already
       have or may receive from a  state, another tribe or other potential commenters (as well
       as the applicant tribe's  responses to any such comments) concerning the reservation's
       boundaries. In reaching a decision on an applicant tribe's TAS eligibility, EPA would
       carefully consider any issues or conflicting claims concerning the geographic scope of
       the TAS application, and may coordinate with other federal agencies such as the
       Department of the Interior if appropriate.

       Commenters have, at times, raised such geographic issues in the context of previous
       TAS applications. EPA's proposal would not alter the opportunity for appropriate
       governmental entities and the public to  provide such comments on future applications,
       or increase any burden  attendant to preparing and submitting such comments.
1 Montana v. United States, 450 U.S. 544 (1981).

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7.  Would the rule save tribes money and staff time in preparing TAS applications for
   Clean Water Act programs?

   EPA estimates that the proposed rule would reduce the staff time for a typical applicant
   tribe by 27% and the overall costs (for salaries and contractor support) by 39%. These
   estimates are explained in the Information Collection Request in the docket for the
   proposed rule at Docket ID No. EPA-HQ-OW-2014-0461.

8.  Would the rule reduce the time it takes for a tribe to get TAS?

   The time to develop and process a TAS application for a Clean Water Act regulatory
   program would likely be reduced, especially for tribes with nonmember fee lands within
   the reservation. EPA's information on the 50 tribes that it has found eligible to
   administer water quality standards and section 401 water quality certifications indicates
   that tribal applications for reservations with nonmember fee lands, which require an
   analysis of tribal inherent authority under Montana, took 1.6 years longer to be
   developed and approved, on average, than  applications for reservations without such
   lands. See

9.  How would the rule affect any tribes that may be currently applying for TAS?

   EPA advises tribes that have already initiated TAS applications for CWA regulatory
   programs that the reinterpretation proposed  in this action  has not yet taken effect. The
   earliest it could take effect would be 30 days after EPA issues a final interpretive rule
   (which would occur after reviewing and considering all comments received during the
   public comment period on the proposal). All TAS applications will be processed under
   the existing statutory interpretation and the current regulations and guidance noted
   above, unless and until EPA issues a final interpretive rule. Such tribes can, at their
   option, ask EPA to suspend action on their current CWA applications for regulatory
   programs pending a potential final interpretive rule, but EPA cannot guarantee whether
   or when this proposal  will be finalized.

10. If a tribe receives TAS for one Clean Water Act regulatory program, is it automatically
   eligible to administer  other such programs?

   No. If EPA approves a tribe's TAS status for a particular program under the Act,  the tribe
   is generally eligible to  administer that program in a manner similar to a state. However,
   an EPA TAS approval is limited to the specific program(s) and lands covered  by that
   decision. Tribes must receive TAS approval for each regulatory program they wish to

   Nevertheless, to avoid duplicative TAS application requirements, EPA's existing
   regulations provide that if a tribe has previously qualified for eligibility to administer
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   another program, the tribe need only provide the required information that has not
   been submitted in a previous application. For example, if a tribe has previously
   demonstrated that it is federally recognized and has a government carrying out
   substantial duties and  powers (and if there is no change regarding those issues), then
   such information need not be resubmitted.  Generally speaking, certain issues, such as
   the demonstration of capability might be needed for each application because the
   program's requirements may differ from the previous program.

11. Did EPA consult with any parties outside the federal government in preparing this

   Yes. EPA consulted and coordinated with tribes, tribal organizations, states, and state
   associations before proposing the rule.

   Consistent with Executive Order 13175 (Consultation and Coordination with Indian
   Tribal Governments ), EPA initiated a tribal consultation and coordination process for
   this action by sending a "Notification of Consultation and Coordination" letter on
   April 18, 2014, to all 566 federally recognized tribes. EPA received input from tribes in
   two webinars and 23 comment letters.

   In the spirit of Executive Order 13132 (Federalism), EPA consulted with representatives
   of state governments.  EPA invited 10 national and regional state associations by letter
   to a July 8, 2014, informational meeting; participated in eight follow-up meetings with
   interested state associations and their members as well as certain individual states; and
   received written input from six states.

   EPA held additional informational meetings in May and June 2015 with state and tribal
   representatives, including members of the Western Governors' Association, the
   Environmental Council of the States, the National Tribal Water Council, and the National
   Tribal Operations  Committee.

   Records of these meetings and copies of written comments and questions submitted by
   states and tribes are included  in the docket for this rule.
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