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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