UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 14
Date Signed: January 8, 1979
MEMORANDUM
SUBJECT: Questions and Answers on Non-Indian Water Supply Situations
FROM: Alan Levin, Director (signed by Alan Levin)
State Programs Division, ODW (WH-550)
TO: Regional Water Supply Representatives, I-X
Region V and X have during FY 78 requested information on the legal status of public
water supply systems owned by Indian people but located on non-Indian land and non-Indian
systems located on Indian land. The same questions were asked in meetings with the Indian
Health Service.
The specific questions and answers follow:
1. First, what does the term, Indian land, mean?
Answer: The term "Indian land" is reservation land, land which is tribally owned,
or land which is owned by individual Indians and which has not been shown to be
under State jurisdiction by the attorney general to the satisfaction of the EPA
regional counsel.
In order to exercise jurisdiction over Indians under the Safe Drinking Water Act,
as amended, a State must clearly demonstrate that either a State enabling act, a
Federal statute other than P.L. 280 as amended, or an applicable treaty with an
affected Indian tribe grants the State sufficient civil and criminal jurisdiction to
enforce drinking water regulations against public water systems on Indian land.
As of the date of the signing of this Water Supply Guidance, there has been no
such demonstration by a State. Unless a State can provide a clear showing of its
jurisdiction, EPA will be required to assume primacy for the purposes of
implementing the Safe Drinking Water Act on Indian lands.
Thus, in 40 CFR § 142.3(b)(2) there is a statement that a State with primacy must
apply its regulations for the Safe Drinking Water Act to all public water systems
except for:
...public water systems on Indian lands with
respect to which the State does not have the
necessary jurisdiction or its jurisdiction is in
question....
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2. What deciding factors should be used to establish jurisdiction - physical location, land
ownership, or maintenance of the system?
Answer: The jurisdiction is based on criteria of the ownership and Federal trustee
status of the land on which the system is located.
For example, when a system is on Indian land which is in trustee relationship with
the Federal government, whether the system itself is owned or operated by a town,
municipality, the Bureau of Indian Affairs (BIA), or an Indian tribe, EPA has
jurisdiction and not the State.
3. Does an Indian owner/operator or a tribal owner/operator of a system located
wholly on non-Indian land deal with the State agency or EPA?
Answer: Any water supply system on non-Indian land will come under the
authority of the State or EPA, whichever has primacy over all other public water
systems. Where an Indian tribe or BIA is the owner or operator of such systems
they should deal with the agency which has primacy. The list of State agencies
which have primacy can be obtained from the Office of Drinking Water, EPA,
Washington, D.C. In a non-primacy State, the Public Water Supply Supervision
Program for Indian lands, as well as the other areas of the State, is implemented
by the EPA regional office.
4. Does a system located partially on non-Indian land and partly on Indian land come
under authority of a State agency with primacy or under EPA?
Answer: This determination should be made on a case-by-case basis after
discussion among the public water system, the State, the Indian people on whose
land the system is located and the appropriate EPA regional office.
There may be situations where determination of who has primacy are complicated
or where roles and responsibilities are vague. In general the sovereign status of the
Indian people should be given due recognition. Split jurisdiction and specific roles
for each agency may need to be worked out, and agree to. Historical precedent
may be a basis for determination. The critical issue is that there be an effective
public water supply supervision program and a specified agency to deal with the
total water system, or with specific service areas of the water system.
5. Should States be involved in implementing the drinking water program for public
water supply systems on Indian land?
Answer: Yes, however the degree of involvement of a State agency depends on
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the wishes of the affected Indian tribe and legal constraints of civil and criminal
jurisdiction.
As a practical matter States should be involved in implementing programs, such
as by conducting sanitary surveys and providing technical assistance, for water
systems on Indian land if the Indian people or tribe agree to this arrangement. A
formal written agreement, such as a Memorandum of Understanding, maybe
helpful in defining roles and responsibilities.
It is important for EPA regions to realize in working out such agreements that
from a legal standpoint even if a State does have primacy for public water systems
on non-Indian land and in addition is willing to carry out a program for systems
on Indian land, such systems are still under EPA regional primary enforcement
responsibility. Thus, unless the State has shown that by express intent of Congress
in an applicable treaty, a State enabling Act, or Federal statute other than P.L. 280,
as amended, the State has sufficient civil and criminal jurisdiction over non-Indian
public water criminal jurisdiction over non-Indian public water supplies on Indian
land, the EPA and not the State is responsible for taking enforcement action.
This Water Supply Guidance (WSG) supplements and does not supplant WSG-10 and
WSG-40 which establish criteria to judge whether a water system comes under primary
enforcement responsibility of EPA or of a State. It should be remembered that WSG-10 stated
that the determining factor was whether or not the land on which a public water supply system is
located on Indian land. Water Supply Guidance 40 clarified and limited WSG-10 in saying States
intending to extend primary enforcement responsibility to Indian water systems must demonstrate
sufficient civil and criminal jurisdiction to enforce its State drinking water regulations on Indian
lands.
NOTE: The 1986 Amendments allowed for granting of primacy for the PWSS Program to
Indian Tribes if they met the criteria specified in the Act. Guidance on this has been
issued separately.
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