SEPA
United States
Environmental Protection
Agency
Office of Water
EPA820-F-15-007
August 2015
Fact Sheet: Proposed Reinterpretation
of Clean Water Act Tribal Provision
Summary
Waters on the majority of Indian reservations do not
have water quality standards under the Clean Water
Act to protect human health and the environment.
Only 40 of the more than 300 federally recognized
tribes with reservations have completed the process
of obtaining EPA's approval to be treated in a
manner similar to a state (TAS), and adopting
standards for their waters that EPA has approved.
EPA proposes to streamline how tribes apply for TAS
for the water quality standards program and other
Clean Water Act regulatory programs. The proposal
would reduce the burden on applicant tribes and
advance cooperative federalism by facilitating tribal
involvement in the protection of reservation water
quality as intended by Congress.
Background
Since 1991, EPA has followed a cautious approach
that requires applicant tribes to demonstrate
inherent authority to regulate waters and activities
on their reservations under principles of federal
Indian common law.
The agency has consistently stated that its approach
was subject to change in the event of further
congressional or judicial guidance addressing tribal
authority under section 518 of the Clean Water Act.
Having received such guidance, EPA proposes to
conclude definitively that section 518 includes an
express delegation of authority by Congress to
Indian tribes to administer regulatory programs over
their entire reservations, subject to the eligibility
requirements in section 518.
As a streamlining step, the proposal would have no
significant cost.
What would the reinterpretation do?
This reinterpretation would eliminate the need for
applicant tribes to demonstrate inherent authority
to regulate under the Clean Water Act, thus allowing
tribes to implement the congressional delegation of
authority unhindered by requirements not specified
in the statute.
The reinterpretation would also bring EPA's
treatment of tribes under the Clean Water Act in line
with EPA's treatment of tribes under the Clean Air
Act, which has similar statutory language addressing
tribal regulation of Indian reservation areas.
What would not change under the
proposal?
This proposal would not revise any regulatory text.
Regulatory provisions would remain in effect
requiring tribes to identify the boundaries of the
reservation areas over which they seek to exercise
authority, as would provisions allowing the adjacent
state(s) to comment to EPA on an applicant tribe's
assertion of authority.
Would the proposal affect the geographic
scope of TAS?
No. The proposal would neither expand nor contract
the geographic scope of potential tribal TAS
eligibility. Under the Clean Water Act, tribes can only
obtain TAS status over waters within the borders of
their reservations. (Tribal trust lands are reservation
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lands even if they are not within a formal
reservation.)
Would the proposal affect any existing
limitations on tribal criminal enforcement
authority?
No. The proposal relates solely to civil regulatory
authority.
What if my tribe or state has special
circumstances affecting CWA regulatory
authority?
There could be instances where special
circumstances limit or preclude a particular tribe's
ability to accept or effectuate the congressional
delegation of authority over its reservation. For
example, there could be a separate federal statute
establishing unique jurisdictional arrangements for a
specific state or reservation. EPA takes no position in
the proposal regarding whether any particular tribe
or Indian reservation is subject to any such
circumstances. Any such issue would be addressed
on a case-by-case basis and with the benefit of a full
record of relevant information that would be
developed during the processing of a particular
tribe's application for eligibility to regulate under the
Clean Water Act.
Who would be potentially affected by or
interested in the proposed reinterpretation?
Federally recognized Indian tribes with reservations
that could potentially seek eligibility to administer
CWA regulatory programs, and other interested
tribes.
States adjacent to potential applicant tribes.
Industries or municipalities discharging pollutants to
waters within or adjacent to reservations of
potential applicant tribes.
Would the proposal affect previous EPA
approvals of TAS for water quality
standards?
No. It would not affect the 50 previous EPA
approvals of tribal TAS for water quality standards.
Would the proposal affect the scope of
existing state regulatory programs approved
by EPA under the Clean Water Act?
No. The proposal does not affect the scope of
existing EPA-approved state regulatory programs
under the CWA.
Will EPA provide additional funding for
tribes with TAS for regulatory programs?
EPA will continue to consider tribal resource issues
in its budgeting and planning process. However, EPA
cannot assure tribes that additional funding will be
available for a tribe to develop or implement the
Clean Water Act regulatory program it seeks. A tribe
choosing to administer such programs will need to
carefully weigh its priorities and any available EPA
assistance.
To Provide Comments or Participate in
Consultation
Public comments on the proposal are being accepted
through October 6, 2015, at
http://www.regulations.gov using Docket ID No.
EPA-HQ-OW-2014-0461.
EPA will host a webinar to explain the proposal and
answer questions on September 10, 2015, at 2:00 -
3:00 p.m. EDT. See EPA's website at
http://water.epa.gov/scitech/swguidance/standards
/wqslibrary/tribal.cfm for instructions on how to
register and participate.
EPA will contact tribal governments, tribal
organizations, states, and state and
intergovernmental associations to provide
opportunities for consultation and coordination
before the rule is finalized.
Where can I find more information?
Contact Fred Leutner by email at
Leutner.Fred@epa.gov or by phone at (202) 566-
0378, or visit EPA's website at:
http://water.epa.gov/scitech/swguidance/standards
/wqslibrary/tribal.cfm
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