« A v
¦P^r ui
Honouble Genrco Flfoit IS o". e i i
I'f >"in!cnc
P.outee Nufion m C Skhshom.;
r.o Bu\ -no
Pawii'.u*. OK 7-M>5S
Deal President I it two!!:
The Environmental Pn itection Agency (HPA s has completed its review nf the Pawnee Nation
ut Oklahoma's request for Clean Water Act (CAVAi 5 h>3(c) and §-01 pptgusni authorization and h
appiming thai nxjtkM > it pertains to the nujutl? ai tubal tru>i lamK. fhe request f»»r prosnmi
authorization v.:t> submitted lor EP \A approval K letters dated February IK, p)0S n jhr Program Anihoriztituw itiulrr §StK*fc> ,«?,/ <$4Ul of the *lvan UWcr -let. As part of
(he re\ iew. EPA svus icquired !o request comments fiom other go\ernmenlal entities located
contiguous to the Pawnee Nation on the Tribe'* authority to regulate water quality on tribal lands. A
response to comments i.s included in the docket for this decision.
In the preamble to the final amendments fu the Water Quality Standards Regulation dated
December 12. 1 1 t5o bed. Reg. 64876-64SMhi, FPA staled that the At'encj "'believes that it was the
intent of Congress to limit Tribes to obtaining treatment us a State status to lands within the
ienervation." 56 bed. Reg. ai (i4SSl. This position is based on the limitation in CAVA §518(e) to
waters "otherwise within the borders of an Indian reservation" and the definition of "Indian tribe"
contained in CWA §51 Sih}(2>. CWA §518ih,it2l defines ,m Indian Tribe as "any Indian tribe, bund,
group, or community icunini/ed by the Secretary of the Interior and etetcisiini itovcrninentul
authority over i.t Federal Indian reservation." The term "federal Indian reservation" is defined in
CWA §51S(htt 1! as:
[A] 11 land within the limits of any Indian reservation under the jurisdiction of the United State •
Government, notwithstanding the issuance of any patent, and including rights-of-way running
through the tescrvaiiuti.
This is the same definition u>ed to define the reservation component of "Indian country' in IS t'.S.C.
1151tai.
Based on the language and contents of the pr» ijrr.un authorization request, EPA assumes that
the Pawnee Nation's request for the OY \ ^3U3u't and ^-in 1 programs does not include an assertion of
a formal reservation. However, in the P>'1 preamble to the Water Qualiiy Standards Regulation, EPA
noted that the Agency consideis trust lands formally set apart for the use of Indians - snob as the tribal
trust lands over which the Pawnee Nation seeks program authorization - to be "within a reservation"
interne l Address (URL} * http:,7www.epa.gov
*PrinSaa wifr. Vegetable 03 Basse; t»i« or Ftoeleci Papar (Minimum 25'., pt,acjrnumcrj
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for purposes of $5l«S(c><2». even if they have not been formally designated as ations." 5b Fed.
Reg, at 64881 (citing Oklahoma l ax Commission v. Cili/en Band PoSaualomi Indian Tribe c*f
()klalioma, 111 S Cl. 905, V10 U''V1 i). EPA and the conns have treated tribal lilist lands outside the
boundaries of formal reservations as "reservations" muter EPA regulations and 1K I l.N.C. 1 15 ituM'the
reservation component of "Indian country"). See Arizona Pub. Service Co. v. I !.S, Environmental
Protection Agency, 21 1 l;3d 1280. 1294 (D.C. Cir. 2000), cert, denied 5^2 I I.S. l>70 (2001»: HRI.
Inc. v. EPA. 198 F.3d I 224, 1 24l» 54 (10'h Cir. 2!KK)), Theiefore, Tribes without formal reset valiorts
mu\ receive program authorisation under the CWA for trihal frost lands.
In addition to trihal truM lands, the application honi the Pawnee Nation seeks program
authorization for member allotments, EPA is no! appro\ ing the portion o! the application tor these
allotments because the Paw nee Nation ha*, not demonstrated as u legal matter thai these allotments fall
within the Stope of CWA §5!.Slei.
Furthermore, the Pawnee Nation seeks program authorization over certain land at Chilocco,
Oklahoma, known as (lie Chilocco Campus, The Pawnee Nation has an undivided interest in the
C 'hiloceo Campus, along with four other Tribes in the area. These Tribes all have the same rights and
no single Tribe has authority o\et the jointly held lands. Because the Pawnee Nation has not
demonstrated adequate authoritv lor CWA program authorization over that area, l.PA is not approving
treatment in the same manner as a State for the jointly held lands. The Pawnee Nation's tribal trust
lands south of the Chilocco Campus are included in I'PA A approval.
Therefore, based on our review, EPA approves the Pawnee Nation's program authorization
request under CWA §.MB(c> and §401 for tribal (i list hinds other than the jointly held Chilocco
Campus. The partial approval of the Pawnee Nation's original request does not preclude the Tribe's
regulation of water quality on allotments under its own laws,
EPA looks forward to working with the Pawnee Nation of Oklahoma in implementing its
water quality programs. We are prepared to help facilitate appropriate discussions with the Paw nee
Nation and the Slate of Oklahoma towards the establishment of tribal and state standards that arc
mutually compatible anil supportive wherever possible.
If you have any questions or concerns, please contact me at (214) Msi 2 KM) or the Region f»
Water Quality Protection Division at (214) b(>5-7101,
cc: Monty Matlock. Pawnee Nation of Oklahoma • Dept. of Environmental ( "onsen ation & Safe!)
Sincerelv vours.
Richatd E. Greene
Regional Administrator
Pnclosuie
2
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DECISION PC JCl'MFNT
PARTIAL APPROVAL OF PAWNEE NATION OF OKLAHOMA
APPLICATION FOR PROGRAM AUTHORIZATION
i > NOHR §3tOu-t AND $401 OF THE (1 LAN W ATFR ACT
U.S. LP A REGION C»
Octuher 2004
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Table of Contents
I, Introduction
A. Purpose
B. ApptuMiii in
C. Chronology of Events
II, RnjuircmenK tui Tribal Fnigram AuthoriMtion nnilei < 'Iran Wain Aei c) and MM
\ Federal Recognition
B. Substantial Governmental DnIieN and Poutin
C. Junsilictmn ovci "Waters within 1 he Bordm" of Reservation Lands
D. Capability
Hi, Response to Comments
IV. Conclusion
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I. Introduction
A, Purpose:
The purpose of the Decision Document is to provide the basis ami supporting
information for the Environmental Protection Agency's iKPA) partial approval of
the application from the Pawnee Nation of Oklahoma to administer §303(e)
(Watct Quality Standards program) of the Clean Water Act (CWA i. liPA's
regulation found at 40 CFR § 131.4(c) states:
Where EPA determines that a Tribe is eligible to (hi same extent r/v u
State for purposes of water quality standards, the Tribe likewise is eligible
to the same extent as a Stale for purposes of certified firms conducted
under Clean Water Act Section 401.
liPA's approval applies to the administration of the water quality standards and
§401 certification programs for waters that lie fully or partially within the exterior
borders of the Pawnee Nation's tribal trust lands. EPA is not approving the
portion of the application for member allotments because the Pawnee Nation has
nut demonstrated as a legal matter that these allotments fall within the scope of
CWA §51 Kle}.
Furthermore, the Pawnee Nation seeks program authorization over certain land at
Chilocco, Oklahoma known as the Chilocco Campus. The Pawnee Nation has an
undivided interest in the Chilocco Campus, along with four other Tribes in the
area. These Tribes all have the same rights and no single Tribe has authority over
1 he jointly held lands. Because the Pawnee Nation has not demonstrated adequate
authority for CWA program authorization over that area, EPA is not approving
treatment in the same manner as a state (TAS) for the jointly held lands. The
Pawnee Nation's tribal trust lands south of the Chilocco Campus are included in
EPA's approval.
In conclusion, the waters and associated tribal trust land parcels for which TAS is
being approved are as follows;
• 366.03 acres in the NE quarter tail pails), NW quarter (NE and SE parts),
SW quarter (NE and SE parts), and SE quarter {all parts) of Section 12.
Township 22 N. Range 5E Indian Meridian (Pawnee County) - Black Bear
Creek and unnamed tributary (sometimes called Possum Creek):
• 320 acres in the NW quarter (all parts) and SW quarter (all parts) of
Section 33, Township 22N, Range 5E Indian Meridian (Pawnee County) -
Stack Bear Creek and unnamed tributary:
1
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• in acres in the SW quarter (Mi part) of Section IC Township 19N. Range
M; Indian Meridian ! Pay ne County i - no knoun suit ace waters:
• 10 aeies in the SW quarter |S\V pail > o| Section IS, Township 2 IN. Ranee
511 Indian Meridian (Pawnee ("ounty} no known surface watery;
• !»i acres in the SW quaiter sSLI part> of Section 20. 'township 22N, Range
5H Indian Meridian < Pawnee County • no known surface watery
• 10 acres in l he NH quarter tSW pan I of .Section 3.:, Township 22N, Ranix
-II: Indian Meridian t Pawnee i %#unt> i no known surface waters:
• MO aeies located in the XL quartet (NT, and Si:, partsi and (lie SF quarter
(all paOst uf Section 22, Township 2 ON. knnjv 21\ Indian Meridian t Kay
(\>unty> - Chilocco Creek and three unnamed tnhutat ies to Chilocco
Creek;
• 180 aere.s located in the SW quaiter (all partsl SE quarter (SW parts i, and
NW quarter (SW part) uf See! inn 23, Township 2l»N, Range 2b Indian
Meridian (Kay County) - unnamed tributary to Chiloeeo Creek;
• -103.56 acres in the NF quarter (NW and SW part I. NW quarter (all parts),
SW quarter (all parish and SE quarter (NW ami SW partss of Section 2ft,
Township 2(>N, Ran ye 2Ii Indian Meridian l Kay County) - three unnamed
tributaries to Chiloeeo Creek.
I hi-. f AS appios'al eo\ers riparian wetlands associated with Blaek Bear Creek,
Chilocco Creek and the unnamed fitbulancs on any of she identified tribal frost
tanas.
Application:
The Pawnee Nation's application for program authorization under CWA §303 anil
$401 consists of two documents:
the Tribe's application to administer die CWA §3l)3fej and §40!
programs, letter from Marshall (Jovci, President, Pawnee Tribe of
< )kiaitonia. dated February 13, 1998, leeched by EPA on March 2. 19%.
supplemental information to the application, letter from Marshall Gover
President of the Pawnee Tribe of Oklahoma, dated March 30, 199?
(should be 1!W8), reeei\ed by I P \ on Apiil <>, 199X.
Chronology of K vents:
Pebruary 13, 1998 - Application for program authorization under CWA §§303 and
401,
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March 30, 1 W7|8J - Supplemental information tor request tor program
authorization under CWA J? $303 and 401
April 2lK 1 ()l)X - Letters So "appropriate srovcrnmenial entities," from William B
1 fafhuwuv, HP A Water Quality Protection Dhtsson Director },oilers and copies
of the two maps in the Pawnee Nation's application \s ere sent to the follow mi:
en lines.
Public notices were published in She Pawnee (ViiV/ on Apn! 21-'. i'WS. and in flic
ihiilx ()kluhimum ami the 7Ww Wnrlti on Mas 2, 1 , so thus local governments
and citizens eould comment. Consistent w ith the preamble to I: PA A water quaJiu
standards regulation (see 56 Fed. Reg. (V4N70 64S(>{>), the puhlie notices requested
that comments from local governments and citizens he submitted to the
appropriate slate agency. In this ease, the Oklahoma Water Resources Board was
the appropriate state agency to compile comments from local entities and the
public. EPA mailed an announcement, the public notice and two maps oi the
Pawnee Nation's trust lands to the following local offices and establishments, the
Payne County Seat, the Pawnee County Seat, the Mayor of Pawnee tattn: Public
Works Dept.I and the New Life Center (located on Chilocco campus!.
May tS, !l)9H - Indian Health Service icsponse from Randy E, GrinneJl, Acting
Area Director.
May K. PW8 - Natural Resources Conser\ at ion Serv ice response from Eddie 1
Kcphurt, Assistant State Conservationist.
May 14, }W8 - Oklahoma Corporation Commission response from lay Edwanis,
Creneral Administrator,
riicHtUx Naiinti ot Oklahoma
Kavv Naliuii
Mu\etiuc-Mi,sstiuria Tribe uf Oklahoma
I'oneu Tribe nf Indians of Oklahoma
Tunk.ma Tiihc ni Indians
Ktiteaii i d' Indian MTairs -Anadarko OHiee
Bureau ufIndian AI'tairi - Pawnee Aeent \
Indian Health Service
Federal Ifighw.n Administraiimi
Naltnai Restlurccs Conservation Sen tee
t J S, Pidi and Wildlife Sen tee
U S < ieuUniieul Suncy
Ollireu) the Secretary oi 0n\irnnmen;
i Skl-iliuma Walej Resources Guard
( }klaln>ina Depi i.f Agriculture
f >kl;tln>nu t >e|ir nl Sinviruiimental Qualm
< Oklahoma State Depi. ol Health
< Iklahniim I Sept. uf Mines
Oklahoma Depi, uf Ttanspuiuitinn
Oklahoma I >ept- uf Wildlife Conser\n(iun
i*klahi>iiia < 'onsenation Commission
OkLiiwma Corporation Commisiiuri
(tklatiuma Indian Affairs Commission
Oklahoma Ta\ Commission
Oklahoma (ieoloL'tcal Survey
Oifke nl tile Covernor "f Oklahoma
3
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May 21.1 WN - Bureau of Indian A Hans tHI A i - P;m nee Ayency response from
Julia M. l.angan. Superintendent. Map ol "Resttictcd Indian Land Pawnee
Re\er\ation" i October ]'-)41 > included With iespm Bruce Maymbbx.
C Tticf of This! Sen ices branch. Information Itom tfitrrmi >/v database also included i ! /1 pp. dated May 1 PMKi
May 24k llW8 • Oklahoma Consetv auon Commission response from Mike
Thralls. Director.
June 2, 1998 - U.S. Fish and Wildlife Service response from Jerry BrabamJer.
I nek! Supervisor.
June 10. llWS - Personal comtminicalion at Inier Tribal Ian ironmenlal Council
conference. Derek Smilhee. Oklahoma Water Resources Hoard tOWRB > io
Diane PAans. EPA. Discussion eon firmed thai l lie i )klahuma Water Resources
Board did not receive any comments in response io the public nonces published m
the ftiwm't' Chief, the Ddih (fkbihoman. and I he ]'h!m; UAnV
i Veemher 2. HW8 - Letter to Bruce May tubby. Chief BIA Anadarko Office
'Trust Services Branch, from Richard Hoppers, Chief - P. PA Region (> LYo-ase^His
Protection Branch. Copies sent to Julia Langdon, Superintendent - BIA Pav-nee
Agency; Marshall Gover. President - Pawnee Tribe of Oklahoma; and, Mont)'
Matlock, Director - Pawnee Tribe Dept. of Hn\ ironmentai Conservation and
Safety
March 2, 1LW - Letter from Debi KoehricL Manager - BIA - Anadarko Wa
Office Land Titles & Records to Richard (i. I [oppers, Chief EPA Region 6
1'.cosystems Protection Branch.
May 4, 2004 - Letter from William Honker, Acting Deputy Director, Region 6
Water Quality ttoteetion Division to Honorable George Elton Howell, President
of the Pawnee Nation of Oklahoma approving the Pawnee Nation's application
for 1 AS tor purposes of §303 and §401 of the CWA.
June 3. 2t>04 - Letter from Senator James Inhoie. ('hanman ol the Senate
Committee on Environment and Public Works to Richard (ireene. Regional
Administrator. Region h. I S. I,IVY Included June I. 2tl(M letter from Senitoi
Inhoie to David Walker. Comptroilci General ol the I'nited Stales
¦4
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June 3. 2004 - Letter from Miguel Mores, I )irector. Region 0 Water Quality
Protection Division to Honorable George Hum I fov*ell President of the Pawnee
Nation of Oklahoma rescinding the May 4, 2004. I *\approval letter.
iuh !(>. 2004-1 eUers to "appropriate governmental entities." from William
Honker. Acting I)eput\ Director, Region 6 \\ aler <,>ualil\ Protection i.)h ision,
I ellers and copies of the two maps in Ibc Pawnee Nation's application were sent
to the following entities;
Cherokee Nation of Oklahoma
Katt Nation
Miiseojjee (( Vcck I Nation
(Isuge 1 ribc of Indians
i Hoe-Missouria Tribe of Oklahoma
Pi men Tribe of Indians of Oklahoma
Tunkuwa tribe of Indians
Bureau of Indian Affairs -Asiadarko Office
Bureau of Indian Affairs - Pawnee Agency
Indian Health Service
Federal Highway Administration
Natural Resources Conservation Service
11 N. f ish and Wildlife Service
t I S, lieokigieal Survey
Bureau iil" Land Management
t ,S Arm) Corps of Engineers
t H'ftee nl'ihc Socieinr) of Em ironment
I tklahoma Water Resource.-- Board
i IkhilioJiut Dept. of Agriculture
t Ifdnhomu I )epi oi Pnvironrnental Otialifv
Oklahoma State Dept. of Health
( HJaltonia Dept. of Mines
(>klaitoma Dept. of Transportation
Oklahoma Dept. of Wildlife Conservation
< )klahoma Cunsei vation Commission
C >klahoma ( orporation Commission
Oklahoma IikIkiii Affairs Commission
Oklahoma !,i\ Commission
< iklahoma t ieologieal Snr\e\
< H'ftee of ihe Governor of Oklahoma
Public notices were published in the Daily (Ikluhmmm ami the Tulsa JI arid on
July 14. 2004 and the Pawnee Chhf mi July 21, 2004, so that local governments
and citizens could comment, As discussed above, the public notices instructed 1 hat
comments from local governments and citizens he submitted to OWRB. The
notice requested comments by August 16, 2004. HP A mailed an announcement,
the public notice and two maps of the Pawnee Nation's trust lands to the following
loeui offices and establishments: the Payne County Seat, the Pawnee Count)' Seal,
the Mayor of Pawnee (attn; Public Works Dept.) and (he New Life Center
t formerly located on Chilocco campus!.
July 21, 2004 - Oklahoma Corporation Commission response from Ben Jackson,
General Counsel.
August 13.2004 - Indian Health Service (HIS) response from Dale Keel, Acting
Area director.
August 13,2004 - Oklahoma Office of the Secretory of Environment (OSB)
response from Miles Tolbert, Secretary of the Environment
5
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August 13, 21)0-4 - Oklahoma Water Resources Board response (transmitted b>
OSH Idler) from Duane A. Smith, Executive Director.
August I u. 2004 - Oklahoma Department of Environmental Qnalih {transmitted
h\ ()Si letter) from Sieven A, Thompson, Executive Director.
August I ?, 2004 - Oklahoma Department of Mines response from 1 ckleab Tsegirv.
Chief. Technical Services.
August 20, 2004 - Cherokee Nation response from Chndwick Smith. Principal
< liief.
August 20, 2004 - Muscogee (Creek) Nation response from A.I). Ellis. Principal
Chief.
August 20. 2004 - St. Regis Mohawk Tribe response from Chief Margaret
Terranee. Chief Barbara Lazore. and Chief James Ransom.
I Mated (received August 23, 2004} - Eastern Shawnee Tribe of Oklahoma
response from Charles Enyart, Chief
August 23, 2004 - Bureau of Indian Affairs response from Michael R. Smith,
Regional Direetor.
Undated (reeeived September t, 20041 - Seneca-Cayuga Tribe of Oklahoma
response from LcRoy Howard, Chief,
August 24, 2004 - Oklahoma Water Resources Board transmittal of public
comments from Derek Smilhee, including the following:
July 21. 2004 - Environmental Federation of Oklahoma, Inc. letter from
James R. Barnett, President and Genera! Counsel
August 5, 2004 - Oklahoma Municipal League, Inc. letter from Danny
George. Executive Director
August 10, 2004 - Oklahoma Independent Petroleum Association leites
from Angie Burekhalter. Direetor of Regulatory Affairs
August I ft, 2004 - Oklahoma Farm Bureau & Affiliated Companies letter
from Maria R. Peek, Direetor of Regulator}- Affairs
6
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II. Requirements for Tribal Program Authorization under Clean Water Act |3#3(c)
and §401
1 uuler CW A §5 i Kiel ami FiM's implementing regulation at 40 O R £131,8, four
requirements must be satisfied before FPA can approve a Tribe's application to
udrnmistci the watei quality standard^ and ?4U1 eeitiUcaUoii programs 11ie.se jiv « V
tin* Indian Tribe reayniTd in the Scereluiy ot the Inferior and meets die definitions m
§ I 3 1,3i k) and III®; (Bl l lie Indian Tribe has a governing bodv can ving out Mibstaniial
t'snenimenfa! duties and powers; iO she watei quality ^tandaids progmm to be
administered by llie Indian Tribe pertains to the management and protection of wates
resource^ which ase held hy the Indian i'ribe, lie id by f tie I anted Staler in trusc jot
Indians, held by a member oi the Indian Tribe if sue it property interest is sub|ect to a trust
restriction on alienation, or olhei wise within the borders of the Indian reservation; and.
(Hi !he Indian Tiibe is reasonably expected in be eapabie, in die Regional Administrator's
judgment, of currying out die functions of an effective water quality standards program in
a mannei consistent with the terms and purposes of die -\el and applicable legislations.
A, Federal Recognition:
The Pawnee Nation of Oklahoma is a federally-recognized Tribe l see 67 Fed,
Reg. 4b327-4M * T Julv 12, -002I, The Tribe is made up of a confederation of the
Cham. Kitkchahke. Petahauerate and Skeedee bands. The Pawnee Nation adopted
a Tribal Constitution under the Oklahoma Indian Welfare Aet (25 I1 S.C. 501 (-t
,vrf/.), w hich has been approved by the B1A.
In addition, to meet the definition of "Indian tribe." there must be the equivalent
of a reservation over which the Tribe has authority.* The Pawnee Nation's 1S57
reservation was sold in 1876 and the Tribe bought a little over 283JMX) acres in
north central Oklahoma. By 1K93, a portion of this land had been allotted in 160
acre tracts to 821 tribal members. The remaining (69,000 acres were opened for
1 40 CFR § I M MI i defines the term 'Indian Tribe" as "an}' Indian Tribe, band, group, or
community iccogmml by the Secretary of the Interior and exercising governmental authority
over a Federal Indian reservation." 40 < "PR ij 131,3tk) defines Federal Indian reservation as "all
land within the limits of any Indian resei vation under the jurisdiction of the United States
Oo\eminent, notwithstanding the issuance of any patent, and including rights-of-way running
through the reservation " In order to be eligible tor TAS, a Tithe must meet the definition of
Indian Tribe, which requires a "reservation." hPA interprets the terns "resei vation" to include
lands he hi in trust for a Tribe, even if such lands have not been formally designated as a
reservation. See 5b Fed. Reg, M876-896 (citing Oklahoma "Fax Commission > < iti/en Band
Potawatomi Indian Tribe of Oklahoma, 11 I S ( T 905 119l>! )>.
2 See 1518(e)(2) of the CW A. 1UJ.S.P. £1 <77iejt2).
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non Indian settlement. While the restrictions have lapsed on some of these tracts
many were placed in trust with the RIA for I he Tribe, Hit* lands which were
placed in trust for the benefit of the Tribe are considered reservations under EPA's
regulations arid existing cast* law.1 Therefore, the Pawnee Nation meets the
criteria of a federally-recognized Tiibe exercising authority over a reservation.
B. Substantia! (iovornnienlul Duties and Powers;
The Pawnee Nation has a governing body with substantial governmental duties
and powers. Article 11(d) of the Pawnee Constitution establishes the Pawnee
Business Council and delineates the jurisdiction and powers of she Council.
Article Ilc.il>(i) asserts tiibaS jurisdiction over all water and air within Indian
country "consistent with applicable federal law." Paragraph (ii) establishes a Law
and Order ami Judicial System ""to protect the peace, safety, health and welfare" of
the members of the Tribe.
Pursuant lo this authority, the Business Council has adopted its own
environmental laws. For example. Title VI, section 566 of the Pawnee Law and
Order Code makes it unlawful to pollute any water over which the Tribe has
authority. Article H(d)tiv) states thai the Constitution, bylaws and laws and
ordinances passed by the Pawnee Business Council are the supreme law of the
Pawnee Nation. The Pawnee Constitution also recognizes the Nasharo Council.
This Council, made up of two members from each of the four original bands, has
authority to review actions of the Business Council that relate to membership and
treaty rights, including treaty rights that pertain to water resources. The Pawnee
Nation has implemented a CWA grant since 1996. In addition to the development
of water quality standards, the Pawnee Nation is implementing a comprehensive
monitoring and assessment program for surface waters; has drafted a Monpoint
Source Assessment and Management Plan; has conducted an environmental
needs assessment; and, has created an environmental learning center foi the
community. Therefore, the Pawnee Nation has demonstrated that it has a
governing body with substantial governmental duties and powers.
C. Jurisdiction over "Waters within ihe Borders'* of Reservation Lands:
In the preamble to the Final Rule, "Amendments to the Water Quality Standards
Regulation that Pertain to Standards on Indian Reservations," dated
Dceemhu 12, 1MU1 (56 Fed. Reg. 64876-64896), EPA slated that the Agency
"believes that it was ihe intent of Congress to limit Tribes to obtaining tieatmem
as a State status to hinds within the reservation" (56 Fed. Reg. at 64881). This
position is based on the limitation in CWA §518(e) to waters "otherwise within
1 See footnote 1, supra.
8
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the border> of an Indian reservation" ami she deli tut ion of "Indian tribe" contained
in file r\VA $51 K( hit 2). CWA £5 lSth)(2 I defines an Indian tribe ax "any Indian
it six:, hand, group, or communst) recognized by the Secretary of the Interior and
exercising governmental authority over a Federal Indian icserv ation," The term
'Federal Indian reservation" is defined in TWA ^MKthi* 1 t as;
I Alt] land within the limib of any Indian re sen ation tinder the jurisdiction
oi' the I'tilted States Government, notwithstanding the issuance nf an\
patent, and including ryehts^of-wav ntnnmj' thronyh the reservation.
Tins is she same definiliott used to define the reserv alioti component of "indi.in
country" in IS I'.S.C. 115 Sta!.
In Ilu- I'J'M preamble, FPA noted that the Agency considers trust lands formalh
sel apart foi the use of Indians to be "within a reservation" for purposes of
§5 1 Hte)(21. even if they have not been formally designated as "reservations." 56
Fed Reg at (VhSSl (citing Oklahoma l ax Commission v. Citizen Band
Potawatomi Indian Tribe of Oklahoma. ill N Ct 1M15. *>10 l I'WI n. EPA and the
courts have treated tribal trust lands outside tfie boundaries of formal reservations
as "reservations" tinder EPA regulations ami IS I'.S C ! 15 h a K t lie reservation
component of "Indian country"t. See An/y»mt I'uh. Service Co v. I'.S.
Fnvironmerstai Protection Agency. J 1 I F nl !2K0, 13**4 il)f" Cir. 2000 s, cert
kkyiftl 552 U.S. "HO f200h; ilKI. Inc. I-.PA. 11 >K F 3d 1224, 1249-54 fl0'h Cir,
2000I, Accordingly. Tribes without formal Reservations may receive program
authorization under the CWA fot tubal trust lands.
The request from the Pawnee Nation for the water quality standards program
discusses the Tribe's kind base in Section 1 of the Narrative Statement, The Tribe
does not discuss whether the 1876 reservation remains in existence, but docs
reference the 1X93 allotment. Based on the submittal, EPA assumes that the
Pawnee Nation's request for the CWA §3t>3te) and §401 programs does not
include an assertion of a forma) reservation. The application seeks program
authorization for certain tribal trust lands and member allotments.
B\ treaty with the United Stales, the Pawnee Nation hi Id a M/eahle reservation in
what is now Nebraska and Kansas. Under treaties of 1X33, 1X43. and 1857. the
Pawnee Nation ceded their land to the i hiited States except for a 30-mile by 10-
nutc reservation m Nebraska. That reseivatinn was sold in 1876 and the Tribe
bouphi a little over 283,0(10 acres in north centra! ()klahoma. By 18^3. a port ton
ot thin land had been allotted in 100 acre tracts to X21 tribal members. The
member allotments comprise a portion o| the atea for which the Pawnee Nation
seeks authorization for CWA $303(c» am! §4^F The remaining IW,000 acres
9
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were opened for non-Indian settlement, While the restrictions have lapsed on
M>iiie oi these tracts, many were placed in tsust with HI A lot the Tribe,
Tiic Pawnee Constitution allows ihe Bir-mess Council to exeicise authority to
pnitect the water resource--. over which ihe hi tlv has jurisdiction I'hc CWA
rcvinne4- the Tt ihe ui demonstrate I ha? ihe functions to he exercised pertain to ihe
management and protection nl water tesouiw^ held in ihe Tube, held by ihe
I "ruled Siuie8 in trust for Indians. held In a meinhei of a Tribe if there is a
icsiriciion on alienation, or otherwise within ihe borders oi an Indian rcsenation
i p IKfeit 2 i. n RS.C, 1377(cx 21 >. Hie submittal l'i»im 5he Pawnee Nation
includes a map of trust lands over which Ihe I sthe averts jiirisdiedon. The Ttihe
has submitted a copy oi' the Tribal Constitution and the Pawnee Tribe of
(Jklahoma Law and Order Code asserting civil juiisdiction over these area;.. Hie
Pawnee Nation's tribal trust lands which are included in the areas where the Tribe
lias .shown authority to recehe this proguim authorization under the CWA are
listed below:
• 36(i,03 acres in the NH quarter (ail pails). NW quarter (NH and SE parts;,
SW quarter (NR and SE parts), and SF, quaiter tali parts) of Section 32,
Township 22N. Range 5E Indian Meridian tPawnee County)
• i20 acres in the NW quarter jail parts! and S\V quarter sail parts* of
Section 33, Township 22N. Range >1:, Indian Meridian f Pawnee Couniy i
» iO acres in the SW quartet fSF: paiU ol" Section 1 (i. Township !9N. Ranizc
51: Indian Meridian tPayne County*
• If) acres in the SW quartet iSW parti of Section 18. Township 21N. Range
5H, Indian Meridian (Pawnee County I
• 10 acres in the SW'" quarter (SB part) ol",Section 20, Township 22N, Range
5E Indian Meridian tPawnee County)
• 10 acres in the NH quarter l.SW parti of Section 32, Township 22N. Range
4E .Indian Meridian (Pawnee County i
• 240 acres located in the NH quartei (Nil ami SH pails) and the SE quartet
tall parts> of Section 22, Township 2*>N. Range ,ih Indian Meridian (Kav
County}
• IM0 acres located in the SW quarter of See!ion Iti
Township 2liN, Range 2Pi Indian Meridian t Kas County i
ThereisMe, the Pawnee Nation has identified watci resources on tribal trust lands
I i.e.. "reservation" lands), and lias cited to die Tribal Constitution and Code
asserting jurisdiction over these lands. EPA funis (fiat under well-established
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principles of Federal Indian law. the Nation retains attributes of sovereignty ovei
both its meinhers and its territory and has authoiity to establish wale: quality
standards on these tribal itusl lands. See, e%u.. California \. Caba/on Burn! of
Mission Indians, 4^0 IAS. 2H2. 207 I NS7).
The submittal from the Pawner Nation also includes areas when1 the Tribe has not
demonstrated that it has met the requirements in CWA §3iH|ei ami CPA's
implementing regulations. Mist, the Pawnee Nation seeks its mvuv program
authe\cra!
comments received on the term "reservation' in CWA §5! 8;
Comments received suggested that HI'A sln>«ld alter its reading of this
provision to allow Tubes to qualify lor treatment as a State over all wafer
resources within its jutisdietion. These comments asserted that limiting
Tithes to water resources within the reservation would prevent a Tribe
from obtaining treatment as a State status over water resources outside the
reservation to which it has legitimate jurisdictional claim, [".samples cited
included traditional resource areas (known as "usual and accustomed"
areas! outside reservation border*-, and all lands held in irusi for Tribes
the r.S, Government or held by individual Indians that lie outside
reset vation borders, lands in "Indian Country" t.as tie fined in IS U.S.(A
1 151 i that lie outside reservation borders and, in general, all water
resources within the territorial jurisdiction of the Tribe that lie outside
ienervation borders.
5fs #: %
3o Fed. Reg, at b4KS)
l:PA jesponded'
t 'sides today's rule, Tribes ate limited to obtaining treatment as a Slate
status for only water resources within the borders of the icscrvation ovei
which they possess authority to regulate water quality. The meaning o| the
teim ''reservation" must, of course, be determined in light of statulon law
and -a sth se fere nee to relevant case law. IT'A consider* trust lands
tonnailv vel apait jor the use of Indians to be "within a reservation' for
purposes section 5bStelt2), even if they have not been loimuih designated
as "reservations." Oklahoma Tax Commission v. Citi/en Hand
I'otawatomi Indian Tribe of Oklahoma. IMS. O O0x l>f(l i ly'i]) "f his
means it is the status and use of the land that determines if it i> fo be
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considered "within a reservation" rather than the label attached to it. EPA
believes that il was the intent of Congress to limit Tribes to obtaining
treatment as a State status lo lands within the reservation. EPA bases this
conclusion, in part, on the definition of "Indian Tribe" found in CWA
section 5ISljui2).
Id.
EPA has consistently interpreted 1 he term "roeivaiiorf to include Iriba] trust
lands, even if they are no I part of a formal reservation, see o3 Fed Reg.7254,
7258 iFebrnaiy 12, !S^9H)(preamble to EPA's Clean Air Act Tribal Authorm
Rule) However, EPA has not treated allotments outside of formal reservations as
within the scope of CWA §518(e), see kl, and the Pawnee Nation has not
demonstrated as a legal matter that the allotments covered by its application fall
within the scope of thai section.
Second, there is an area over which the Pawnee Nation has not shown adequate
authority tor program authorization. That area is known as Chilocco campus.
The Pawnee Nation has an undivided interest in that land along with four other
Tribes. The five Tribes all have the same rights and no single Tribe has authority
over the jointly held lands. The Pawnee Nation has not demonstrated adequate
authority for EPA to approve the Tribe for CWA program authorization over that
area.
It should be noted that EPA is not today determining the scope of the Tribe's
regulatory authority for all purposes. EPA is today Finding that the Pawnee
Nation has sufficient authority lo establish water quality standards undei the CWA
for the lands held in trust by the United States for the Tribe anil to perform
certifications under CWA §401. EPA will continue lo be responsible for issuance
and enforcement of CWA National Pollutant Discharge Elimination System
permits for Indian country in Oklahoma, including the Pawnee Nation's tribal
trust lands and member allotments. Also, the I F.S. Army Corps of Engineers will
continue to issue and enforce permits under CWA §404 and the Rivers and
Harbors Act for Indian country in Oklahoma.
Capability:
The Pawnee Nation of Oklahoma has demonstrated that it is reasonably capable of
establishing and implementing a water quality .standards and §40! certification
program in a manner consistent with tiie terms and purposes of the CWA and
applicable regulations. In determining that the Pawnee Nation has the capabihtv
to establish and implement an adequate water quality standards and $401
certification program, EPA considered that the Tribe:
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1, Has developed ami stuffed a He pari men i of Fm itonmental Conservation
and Safety to catry out ihe mission of programs such u> wafer quulit)
standards.
2, Has i omlucted an enviionmental nerd*, assessnicns and enacted the
Pawnee tribal b'nvHonuu nlai RcjjiiKiion Act
3, I (as developed J rat l "witci quahtv standards u h;ch im I tide the CWA
tyqmtetncmo identity ni;..1 ; l<»t
the lands identified m Part 11 C. of this document. The Pawnee Nation has not provided
sufficient information to support approval ol TAS foi member allotments and certain jointly tield
lands referred to as the ("hilocco Campus. HPA stands ready to assist ihe Pawnee Nation m the
development of its WQS. 1:1'A is also piepared to help laeilitate appsopiiale discussions with tin.
Tribe and the State ol
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2®§4 Response to Comments on Pawnee Nation of Oklahoma's
Application for Program Authorization under Clean Water Act §§303(c) and 401
The Water Quality Standards Regulations in 40 ( Tl< §131,8 require KPA to notify "appropriate
governmental entities" in allow comment on the Tube's assertion of authoi ity to implement the
water t|ualiiy sUmlanls ami §4(11 certification programs 'Hie preamble to the jegul.jtion 15f» Fed
Reg dvswnlvs pnemmental entities a- "Stales, TribeN ami other Federal entities
located contiguous to the icwn,ation ot the 1'nhe which is applying for iteafmeni as a State"
i 1 Ah! EPA lequcsted comment^ from poesnmcsU enmies on the Pawnee Nation's assertion ol
authority to implement the uater quality standards and §40! certification programs within the
boundaries of the 11 die's trust hmd>.
The preamble to the Water Quality Standards Regulation (56 Fed, Reg, 64876-64896) also states
thai HPA will make an eflort to provide local novelnnients and otheis an oppoitunsE) to
comment, EPA placed public notices in the /'mr/n v Chief, the Daily n May 2. P>9X Hie following submitted comments in
response to this initial notice;
* Indian Health Service from Randy P. lit innelL Acting Area Director;
Natural Rcsinuees ("onsen ation Service front (:ddte I Kephast. Assistant Slate
Conservationist;
• Oklahoma Corporation Commission Response from lay Edwards, Cleneral Administrator;
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• BIA - Pawnee Agency from Julia M. Langan, Superintendent (map of "Restricted Indian
Land Pawnee Reservation" (October 1991) included):
• Kaw Nation from Wanda Stone, Chahperson; Walter 1. Hare, Jr. Administrative Services
Director and Timothy F, Kennedy;
• BIA -Anudarko Area Office response from Bruce Maytubby, Chief of Trust Services
Branch (Information from Bureau of Indian Affairs Land Index Report database al^o
included (171 pp., dated May 4, 1.998));
• Oklahoma Conservation Commis.sion from Mike Thralls, Director;
• U.S. Fish and Wildlife Service response from Jerry Brabander. Held Supervisor; and,
• Debi Koehrick, Manager - BIA - Anudarko Area Office Land Titles & Records.
A June 10, 19()8 discussion at Inter-Tribal Environmental Council conference between
Derek Smithec. Oklahoma Water Resources Board tOWRB) and Diane Evans, EPA confirmed
that the Oklahoma Water Resources Board did not receive any comments in response to the April
and May 1908 public notice* published in the Pawnee Chief., the Daily Okhifummn, and the
Ttdsa World.
A second public notice was published in the Daily Oklahoman, and the Ttdsa World on
July 14, 2004 and in the Pawnee Chief on July 21, 2004. On July 16, 2004, letters were sent to
appropriate governmental entities seeking input on the assertion of authority in the Pawnee
Nation's TAS application. Comments on this second notice were received from the following
• Oklahoma Corporation Commission from Ben Jackson, General Counsel;
• Indian Health Service from Dale Keel, Act in t? Area Director;
• Oklahoma Office of the Secretary of Environment < OSE) from Miles Tolherl. Secretary
of the Environment;
« OWRB (transmitted by OSE letter) from Duane A. Smith, Executive Director:
• Senator James Inhofe, including a letter from Senator Inhofe to David Walker.
Comptroller General of the United Stales;
• Oklahoma Department of Environmental Quality (transmitted by OSE letter) from
Steven A. Thompson, Executive Director;
« Oklahoma Department of Mines from Tekieah Tscgav. Chief, Technical Services;
• Cherokee Nation of Oklahoma from Chad wick Smith, Principal Chief;
• Muscogee t Creek) Nation from A.D. Ellis, Principal Chief:
• St. Regis Mohawk Tribe from Chief Margaret Terrunce, Chief Barbara La/ore. and
Chief James Ransom:
• Eastern Shawnee Tribe of Oklahoma from Charles En van. Chief;
• BIA response from Michael R. Smith, Regional Director;
• Seneca-Cayuga Tribe of Oklahoma from EeRoy Howard, Chief,
• National Tribal Environmental Council iNTECI Ironj David F. Conrad, Executive
Director:
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• OWKB transmittal of public comments from Derek Smithee, including:
- Environmental Federation of Oklahoma, Inc. from James R. Bamett, President
and General Counsel;
- Oklahoma Municipal League, Inc. from Danny Georsic. fixecuttve Director,
- Oklahoma independent Petroleum Association (OJPA) Iron! Aniiie Burckluiiter,
Director of Regulatory Afhiiis; am!
- Oklahoma {"-'arm Bureau Sz Alfihnkd Companies front Nhula R Peck. Ditveloi o!
Regulatory Affairs.
All comments were considered in making: a determination on the TAS application. Sigiiifica.nl
comments are discussed below.
( umnunts and Responses from 1998 Notice
('otiutsem 1A: The Indian Health Service and the Natural Resources Conservation Service e:ich
sent loiters in support ol l lie Pawnee Nation's water quality program. Both agencies de ferret I to
the Pawnee Nation ami (he BIA tor issues on him! status.
Response I A: PP \ appreciates the support of tin; Indian Health Service and the Natural
Resources Conservation Seivice on CWA programs.
( Omment 2/-1; The t >kkibonia Corporation Commission suggested that the Pawnee Nation refrain
lioin developing lis own water quality program due to complicated iiinsdiciional issues and
recommended that llie Fiihe work with the state agencies and other groups to address watei
quality issues. The Oklahoma Corporal ion Commission also noted that (lie state agencies
welcome input from tribal governments on programs such as water quality standards, monitoring,
and nonpoint source pollution.
Response 2,4: I PA appreciates the Oklahoma Corporation Commission's response. EPA
acknowledges that tribal )titisdictiona.1 issues in Oklahoma are complex and strongly supports
coopeiafion between neighboring jurisdictions. HPA's Indian Policy, established in 1984,
supports the development of tribal enviionmcntnl piograms. FPA also recognizes thai suite
agencies such as the Office of the Secretary o! LnvsionnienL the OWRB ami the Oklahoma
Coii^en atioii Commission solicit inptti frotn tribal governments on water quality programs i he
P>S4 policy also states that FPA encourages coopeiaiton among states Indian Tribes and local
t'overnments on enviion mental issues. We understand that the State and the Tnbe have engaged
in discussions rettarchtip a framework lo coordinate water quality standards
C \>rntilent 3A. The K;i\v Nation stated that it had no lands adjacent to those repieseiHed on the
color map labeled as "l:\hibit 4"" Stribal lands in Pawnee and Payne Counties! and therefore did
not dispute the Pawnee Nation's jurisdiction on ihese lands. The Kaw Nation agreed that five
Tribes - the Kaw Nation the otue-Msssouna Tnbe of Oklahoma, the Pawnee Nation, the Pone;s
f'nbe of Indians o| (Oklahoma and the Tonkim a I'nhe of Indians oi Oklahoma - each hold one
3
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fifth interest in the Chiloeco Campus as shown in "Attachment A" of the Tribe's application.
Lastly, the Kaw Nation did not challenge the general claim of the boundary between Raw and
Pawnee Nation lands at Chiloeco, but did not attest to the accuracy of the map labeled
Attachment A,
Response ,i4: HI 'A appreciates the Kaw Nation's response. UPA's approval of the Pawnee
Nation's request for program authorization for CWA ij 303(e) and §401 does not include the
Chiloeco Campus, This approval action does include the Pawnee Nation's tract of 823.56 acres
at Chiloeco, If a dispute on the boundary between the Kaw Nation's lands and the Pawnee
Nation's hinds at Chiloeco arises as a result of ;i water quality issue. EPA will solicit; further
advice from the HI A. The description in the Decision Document of the Pawnee Nation's lands at
Chiloeco was obtained from the RIA's Land Index Report
Comment 4 A: The Oklahoma Conservation Commission stated its support of the Pawnee
Nation's effoit to develop water quality standards. The Conservation Commission also noted
the growth of tribal environmental offices and complimented the Pawnee Nation on its programs.
Finally, the Conservation Commission indicated the benefits of state, tribal and federal
cooperation.
Response 4A: EPA appreciates the Oklahoma Conservation Commission's support of tribal
water quality programs and looks forward to continuing work with state and tribal agencies on
water quality programs.
Comment 5.4: The U.S. Fish and Wildlife Service commented on the difficulty of implementing
water quality regulations on small portions of water bodies and noted that application of different
regulations may be confusing to the regulated community. The Service also commented that
EPA's approval of the Pawnee Nation's authority to issue §401 certification will have no adverse
effect on listed or proposed threatened or endangered species, but individual actions may require
consultation under §7 of the Endangered Species Act. The U.S. Fish and Wildlife Service
indicated that it would review water quality standards proposed by the Pawnee Nation.
Response 5A: EPA will continue to work with ail parties to implement water quality standards in
a consistent manner. EPA will consult with the Fish and Wildlife Service under the Endangered
Species Act (ESA) regarding approval of the Pawnee Nation's water quality standards to the
extent thai approval of those standards may affect listed, threatened or endangered species or
critical habitat, Issuance of §401 certification by the Pawnee Nation tor a state! is not subject to
consultation under the ESA; however, the federal agency issuing a permit which requires §41)1
certification {such as an NPDES permit or a §404 permit) ls responsible for fulfilling any
applicable requirements of the ESA.
EPA would like to make one clarification. The Service's letter stated "any water quality
standards proposed by the Pawnee Nation must be at least as protective as the state standaidsT
Stale and tribal standards must he as protective as the minimum requirements of the CWA and
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I he implementing regulations, State and tubal standards must also consider the downstream uses
of neighboring juiisdietions, but do nut haw to be identical isce 4(1 < "I R ^131 10(h)). Thus, if
the State of Oklahoma has adopted a water quality standard thai is more stringent ihan federal
retjuiicinents, the Pawnee Nation must take into consideration Oklahoma's standard and ensute
Usal the tribal standard provides for the attainment and maintenance of the standard applicable t«>
the »Ittwnslreain stale waters and otherwise meets the minimum fedeial sequuements
Comments and Responses from the 2004 Notice
< "I'titmvni IB; The Oklahoma Corporation <'omnussmn i "OCCO ""objects so the Pawnee
Nation's effort to use TAS under CWA as a means !o gain TAS urtdct NOW AC The OCC
explains in a footnote thai this comment is based on uncertainty over whether the Pawnee Nation
is asserting authority over the underground injection control tUIC) program of the Safe Drinking
Water Act tSDWAt, The fool note cites the Pawnee Nation Tribal Environmental Regulatory Ac!
of 1997, included in the submittal, as an assertion of authority over OIC activities.
Rt'spcfise IB: The application is limited to the authority of rhe Pawnee Nation to establish water
quality standards wider <^303 of the CWA ami lor certification authority under §40 J of the CWA
The transmittal letter (torn the Pawnee Nation President as well as the resolution from the
Pawnee Nation Business Council indicate that this application is limited to those specific CWA
programs. EPA is not approving TAS for the Pawnee Nation under any other statutes or for any
other provisions of the ("W A in Shis decision.1
('mmth'nt 2B: OCC. the Oklahoma Municipal ! ea^uc and ihe Environmental Federation ol
Oklahoma comment that it is unfeasible to allow separate tribal water quality standards in
Oklahoma due to the history of allotments and die lack of "reservations" in the State. Senutot
James inhofe also expressed concern about granting f AN in Oklahoma due to the absence of
formal reservations. ODliQ and OWRB commented that the ruling in Oklahoma Tax
Commission v. Ciit'/.en Hand Potawalomi Tribe of Oklahoma, 498 U.S. 505 i I'M]) is limited to
sovereign immunity as ielated to state taxes
Respon.se 2H: In a fund rule dated Deeembei 13, IM*»1 i56 Fed. Reg. h 64896). EPA stated
that "u is the status and use ot the land that deteimines if it is to be utiisideted "within a
icservation* rallies than the label attached to it." 5o 1 vd. Reg. at 64K8 1 As a result. Tribes
without formal reser\ ation areas may be treated a> Mates for land lie Id in tiust by the United
States for the 1 nbe. PPA's position is based on lumjrstamling Supreme I ami case law.
including Oklahoma Tax Commission v. Citi/en Hand Potawatomt Tribe of Oklahoma, 49K i I S
505 11991), and eases cited therein. Though the controversy in thai ease was centered around
applicability of state taxes in Indian country, the Court's finding t> not limited to taxation and is
consistent with general principals of federal Indian law.
'EPA has pre\ iunsly appto\ ed TAS for the Pawnee Nation lot purposes of funding
eligibility under slUoof the CWA
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Comment SB: 4 iCC, Oil'A. Senator Inhofe and the t >Mahoma farm Bureau each commented
thai HI'A should not appim c TAS fnr Tribes in Oklahoma because of the complexity in
determining which lauds are tribal trust lands and because Indian country In Oklahoma varies
over time. The Oklahoma Water Resources Board (OWRB) and the Oklahoma Department of
Environmental Quality (ODEQ) assert that the legal descriptions of four parcels are inadequate.
OWRB added that there appear to be inconsistencies between the map and the legal, descriptions
of three parcels.
litsp>>n.sv .W. Keu>uls nl" all luiui\ held in trust by tin- f ntlcd Si.iH". U*r ,1 specify Tribe arc
maintained by the B1A. In comments on ihe Pawnee N;i?ioi: applu auon. she Superintendent of
the B1 A's Pawnee Accney provided leg.d descriptions ot the lands held in nost for the Tube as
well as ,i list of lands that were no longer in trust. I'he (Itiel oi the Trust Services Branch also
provided a printout (if trust lands, though this contains both tribal trust lands and member
allotments. As to ttic mis! lands a! issue in this decision. III A commented that the legal
descuptions in the record aie correct. Quarter, section, township and range snake up an adequate
legal description Thai these descriptions are sufficient to deteimine location is evinced by
ODHQ's own comment that the four parcels over which they express concern are tribal
cemeteries Rnailv. where there is a conflict between maps provided by the Pawnee Nation and
the HI A lejia! descriptions, the PJ \ legal descriptions control undei 1 J5 Vs decision
Comment 4B: OI >I-Q asserts that four of ihe parcels Identified as tribal trust lands have no
waters that flow through or touch upon them.
AV.v/Hwi.vt' 4H. H'A agrees that there don't appear to lie any streams, lakes oi potential waters on
Ihe following tour areas oi tribal trust land. EPA notes that il iiteie are in lac! no existing or
potential sin lace waters on these lands. FPA. expects the Pawnee Nation WQS submission would
not include standards for these areas.
• Id acres in the SW quarter (SE part) of Section I h, Township I ON, Range 5E Indian
Meridian (.Payne County);
• 10 acres in the SW quarter (SW part} of Section IK, Township 2 IN. Range 5E Indian
Meridian (Pawnee County!;
• H) acres in the SW quarter (SE port) oi Seuton 2U Township 22K, Range 5E Indian
Meridian I Pawnee County K
• HI tcies in the Nl" quarter (SW pari i of Section e1. Tou nsinp 22N\ Range 411 Indian
Meridian iP.u\nee County),
(. mwwi.w 5/J t M <)V\ KB and the BIA c.k it commented on the lack o! qualn> of the maps
piMvided by P.tw nee Nation I he comment* are that the maps lack, sufficient duntv detail and
scale.
Rt'snonu- ;>/•» It ss some a, hat difficult to iJeniifx the \ anotts fnhal trust lands I torn the maps
Howewi. les-al tiesci tpiions for nine parcels of tribal trust Sand provided by BIA were i\ nibble
to the pubhc h>i the most recent public comment period, 1 he\c leeai descriptions are sufficient
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to determine the lands on which any EPA-approved Pawnee Nation water quality standards
would apply.
('initmciu 6fl; Ol )!•.(.) assents that surface waters for which the Pawnee Nation will be
establishing standards are nut identified.
tfespm.i? 6B: S«»u«e w.ium bodies are not ri.tuksl kvauw the} tie n«h.tvv n mal names The
known vva!er bodies and associated tr;wk Hear Creek and unnamed inhulary (sometime
called Possum. Creek):
320 acres in the NW quarter (all. parts) and SW quarter (all parts) of Section 33,
Township 22N, Range 5E Indian Meridian (Pawnee County)-
yimamed tributary:
240 acres located in the NT; quarter i NI; and Sii parts! and the SI; quarter jail partsi of
Seetinn 22, Township 29N, Range 2K Indian Meridian (Kay County 1 - Chiloeco Creek
and three unnamed trihutatries to Chilocc*> C 'reek;
ISO acres located iti Use SW quaiter tall paiKi. Sh quarter iSW part i, and NW quartet
i SW part) of Section 23. Township 2bN. Range 2E Indian Meridian s Kay County! -
unnamed tributary to Chiloeco Creek;
« 403,56 acres in the NE quarter (NW and SW parish NW quarter fall pans!, SW quartet
tall partsi, and SB quarter i NW and SW partsi m' Section 2fi. Township 29N, Range 2F.
Indian Meridian (Ray County) - three unnamed tributaries to Chiloeco Creek
This TAS approval covers riparian wetlands associated with Black Bcai Creek. Chiioeco Civek
and the unnamed triinilai k-s on any of [he identified tribal trust lands. <\s discussed above undo
Response 4B, ihtie are fom areas of tnbai trust hauls included in this approval which do not ha\
known surface waters
( ow/mm 7B: Ohilj1 and OVvRB poin; out that the most recent public notice indicates thai
Pawnee Nation is no! seeking FAS over allotments, hut the TAS application does request
authority ovei ntembei allotments
is comment is correct. Thiou«;h clerical error, the most iccem public notice
was incorrect in stating thai Pawnee docs no! seek FAS over member allotments, Howevet foi
the reasons discussed in the Decision Document F.l'A is not approung the Pawnee Nation for
member allotments
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Comnwm Sii. i KA and OlPA commented that, in C )klaltuma. she itnst status of the land changes
father frequently as land is placed into trust os loses its sn>si stntus. l'his cieates a moving tin irct
in serins ol jurisdiction. The OCC comment also references the "complexity and scope of Indian
kind idcniiik ation am! location of any and ail lands thai may be aficcted b\ 1'AS status." OW RB
i ummented shut the Paw net Nation must prow slit.- hum -.tains t>< ali pai\ els for w hieh P.P i>.
graining 'FAS,
Rr-sfinttyc ,h- Ik*»|iu-hiK. hut 1*1' \ M 1 Supreme Court lest for civil authoi ity ovei non-member activities
within a reservation m Montana v. U.S.. 450 U.S. 544, indicates that, because the Pawnee Nation
does not have forma! reservation boundaries, they have no sovereign authority to protect tubal
mcmbeis on tribal trust lands, OCC also comments that the Pawnee Nation doe> not meet the
'-tatuioiy criteiia U>t TAS because establishment i »f watei quality standard^ is not necessary to
prevent a seiious and substantial effect on the health and welfare nf the 1 ribe. citing the faetuis
If om tile jV'liJIliilliil test and from CPA's regulations regard hut tribal jurisdiction over nonniember
activities within a reservation. They comment that the .standards ;,re not necessary because their
sampling of the waters which run through Pawnee Nation lands indicate they arc not impaired.
/tesfumsf W; As was stated in response 2B, in a final rule dated December 12, 1991 (56 Federal
Register f "bed. RejCj (>4S7fv6489b), LPA indicated thai (he iieopraphic scope of die tribal
eligibility ttisder the CAVA includes lands held in 11list for a Tiibe.
This comment confuses the Supreme Court test for civil authority over nonmembers v ilh the
statutory iet|tiiiesueius tor TAS. In order for a Tube to have ci\ il anthoisty ovet non-member
activities. the test m Montana must be met Hn\vc\er. the Pawnee Nation ts not seeking
lepulatory authority o\ei nun -members on fee lands, k-.nd we aic aware ol no non-nicmher
.ictivuics on ilie trust lands at issue in this decision that afreet waka quality, In addition LPA
and tan the Ftibi t- the permitting authority responsible ioi implementing a»\ approved Pawnee
Nation waiti quality standards.
Impairments to water quality. whether from od and _eas exploration and production ot otherwise,
are not a pieiequisite to establishment of water quality standards oi tins f \S decision- Section
SI Kiel and PPAA implementing regulations establish font enicun for I'AS birst. the applicant
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must he a fedcrally-reeogni/ed Tribe exercising governmental authority over an Indian
reservation Second. the Tribe must have a governing body currying out substantial
governmental duties ami powets. Third, the powers to he exercised muss (x-ttain to water
resources held h) a Tribe, b\ the United States in trust for Indians or held by an Indian subject in
a restrict son on alienation. ot otherwise within Use border*- of an Indian rewn at ion, and t wei
which the Tube ear, demons!rale authority J-ouiih, die Tribe mast he reasonabh expected to he
eapabte ol carrying out lite functions for winch FAS is sought.
CVwwcm iOK The Museosiee Creek NjIhui tonisnentcd that iiUr. iduai Indian allotments ire
excluded from nate rcgul;»l»»n citing CoivtUc C "uiil'edeiuled Fished Walton, <¦»*•? 2d 42
(M1" (J1!!, I >18 i i Ihe Muscogee ("reek Nation comments t ha! i,TA\ interpretation of ihe CWA
excludes 1 ribes from obtaining TAS for non-reservation Indian eountiy is contrary to the EL A
Indian Policy. This Tribe stales that such a position is eontiarv to federal Indian law principles,
arid that restricted and trust allotments are subject to tribal and federal control to the exclusion of
state regulation idling Indian Country U.S A. Inc. v State of Oklahoma. >S2U h_\i at>7, w7<>
i lit" eir I "S7).
Response I OH: As noted in the decision document, EPA has not treated allotments outside of
formal reservations as within the scope of CWA §5 18(e), and lite Pawnee Nut inn has not
demonstrated as a legal matter that the allotments covered by its application fall within the scope
of thai section, I he language sn $51S
t 1^78), Indian Country 1 l.S.A v State of Oklahoma, N2l> is 2d 'KO i Id"1 Cir, 1987) cert, denied
by Oklahoma 'Fas Coni'n v. Muscogee tCreek) Nation, 487 U.S 1218 11 t>SK>, Oklahoma Tax
Comiiussion v. Citizen Band i'ofawatotiti Tribe of Oklahoma. 4'>K U.S. 505 11c>91 s, OklahonKt
Tax Commission v. Sac and I-ox Nation. 508 1 '.S. 114, 123 < reh'g denied 509 U.S. l)33
i C>«» C
For comments 1 IB through 22B, it should be noted that 40 <'1 R ^ 131.8teitl) specifieaJly states
that'"(clonm tents shall he limited lo Uie 1'iibe's assertion ol authorityWc are lesponding even
though these comments do no! direct!) relate to the Pawnee Nation's assertion of authority
Cnmweni 1.
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Tribe in Oklahoma established separate or even contradictory standards, the result would
significantly burden the regulated community and restrict the Stale's economic growth. These
comrnenlers. citing Ciisr of Albuquerque v. Browner, 97 F.3d 415(10"' cir, 1996f ccrt denied 522
U.S. %5 l I'W). assert that there could be significant economic burdens resulting from a Tribe
setting standards significant'v more stringent than the state standards.
ResjWM I lli- The water quaiity standards currently being discussed by the Pawnee Nation are
very similar to the state standards, and thus the concern that the Pawnee Nation will adopt ve in-
different standards from the state standards .seems premature ur speculative; however, we
acknowledge that the Tribe might .some day decide lo change those standards, just as the Suite
might change lis existing standards. To date, the Pawnee Nation is the only Oklahoma Tribe to
have .submitted a TAS request for water quality standards.
It is important to note that today's action of approving TAS for the purpose of establishing water
quality standards does not constitute approval of any particular standards. EPA lias yet to act on
specific standards developed by the Pawnee Nation. Further, any new or future changes in state
or tribal water quality standards would have to come to EPA for approval before taking effect
under the CWA. Where the proposed change in water quality standards is consistent with the
other sovereign's standards, none of the implementation issues raised by commenters would
arise, and review is likely to be relatively simple and uncomplicated. In the event that the state or
a Tribe proposes changes in water quality standards that would result in inconsistencies with
adverse impacts like rtio.se of concern to the commenters, the Agency would, as it has done in
practice, take such inconsistencies into consideration.
I:PA is also preparetl to help facilitate appropriate discussions with the Pawnee Nation and the
State of Oklahoma towards the establishment of state and tribal standards that are mutually
compatible and supportive wherever possible. Further, where states and Tribes face difficulties
in resolving their differences regarding water quality standards for shared waters, pursuant to
CWA §5 J 8(e), F,PA has established a dispute resolution process that can be initiated by states or
Tribes where one government's water quality standards would lead lo unreasonable
consequences for the othei government. See 40 CI R §131.7.
Comment I2B: OCC commented that the Pawnee Nation lacks the funding to implement FAS
under the CWA, Senator Inltofe, referencing OCC comments, expressed this same concern.
ODEQ commented thai capability may have changed since the application was submitted and
should be updated.
Response J2B: Section II. I), of the Decision Document detads hl'AA determination regarding
capability of the Pawnee Nation to implement the water quality standards and 401 certification
programs. The Pawnee Nation is eligible for funding under a number of FPA grant programs,
including the CWA grant prog!am. This funding was adequate for the development of draft
water quality standards and FPA has no evidence to indicate insufficient hinds for any necessary
revisions. Nor does EPA have any indication that the Pawnee Nation has insufficient means for
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carrying out the certifications unikr §401 of the ( AVA. "Ihe authority ("or all othei CSV"A
implementation, such as issuance and en forcemeat of permits in Pawner Nation Indian country,
in hemp retained by lii'A. As ;i result, resources beyond what the Pawnee Nation has shown are
not necessary nt litis time. Should the Pawnee Nation seek, other regulators proprams, a ie\iew
ol neeessaiy resoutees is pan ol lite requisite capability demonstration. lis further suppoit of the
position !Ikii the Pawnee Nation lias the capability to implement the water quality standards
proeram. it >hould he noted lis,it the Pawnee Nat ion is implementing a wider quality tnusntoniii
projtan'! So! assessment of physical, chemical. and bioloiiu al parameters
i'mnnii-fi' I ->[t: Comments from the Oi >FQ, OWRP, OCC, (>IPA, the I 'arm Buie an, anu "J u
Environmental Federation ol (Jkluhonia all objected to a yiani "f TAS due to the ' chtckcrboasd"
imtute of Indian country in Oklahoma. They assert that approval of water quality standards fos
non-contiguous tracts results tit numerous, potentia!!v conflicting, permit requirements from a
vaneiy of eocernmental entities.
Rvspdfi.sr (JH: lil'A is prepared lo help laeililate appropriate discussions with the Pawnee
Nation and the State of Oklahoma towards the establishment of tribal and state standards that are
mutually compatible and supportive wheiv\er possible.
Comment 14B: OCX", OIPA. the Farm Bureau, and the Environmental Federation of Oklahoma
each expressed the concern that tribal standards in this urea would be duplicative !n the woid> of
the (JO "lit Oklahoma, the general public health, safety and welfare of individual Anient an
Indian property owners and tribal trust lands are piotected by the existing state based water
quality standards," ()DEQ provided similar comments.
Response 14B; Because EPA has not approved Oklahoma's water quality standards for Indian
country in Oklahoma, under the CWA the state water quality standards are not applicable on
tribal trust lands such as are the subject of Shis action.
Comment I>H. OCC. OfPA, the Farm Bmeau, and the Environmental Federation ol Oklahoma
assert thai Pawnee Nation's application b>t TAS lot the purposes of establishing water quality
standards "represents an unnecessary attempt to duplicate existing en\ in omental programs and
an unnecessary buteaiieralic layer." ODFQ commented similar!) that approval oi 'IAS enables
the development of potentially inconsistent, overlapping and redundant standards and programs
Response 15H: A"- stated m the previous iesponsc, me Oklahoma water quality standards do not
apply hi tribal trust lands undei She CWA. Watei quaiity standards adopted by the Pawnee
Nation and approved hv EPA would not tluplieate anv CWA programs that cnncntk exist to;
these waiets. \s noted abo\e, petmit writers must make sine thai permits contain any hunts
neeessaiy to ensure consistency with downstream .standards. Further, (tie authority to establish
water quality standards "is in accord with powers inherent in Indian tribal sovereignty,' Cliyj.il
Albuuueicitie v. Brownet. vn I .\1 4!5. ~I_"M I (Oils Cir, 149f->i(eeiL denied 522 U.S 1}(j5 i PJlC t
As noted above, EPA is prepated to Sic I p facilitate appropriate discussions with (lie Pawnee
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Nation and the State nf Oklahoma towards the establishment of tribal and slate standards that: are
muiualiv compatible and supportive wiienncr possible
('immtot! l&B' Approval ofTAS under the < "WA makes it easier U» oblam Safe Drinking Watei
Acl prugiants, leadine tu an adverse inipae! on mi ;;rui pas producer* and the U(T\
It'tB: I nuler KP Vs "siinplifteatnin mie." v1 'x\l, Reg. h I ^ t() ! I Veen'A : ! I, tMM t
iheiv is a reduced huidaf on lubes in ohlntniue T AS tl the Tnbc has I" \s under anofher Aaiuie
"i program, h>r exainpie, i fnhe wait 1 i, s tin,: pe i,:s .an would ti>«; need ti • p:v. ;de iinsites
iribnnwtion in a sub.NcvjmT.t 1 AS application in ilem.m.sinite lhar it o a icdcinfh-teC'ijrnizvni
Tube wsth a governing body sanymg out ,substantial duiies and po\\ci-,. Hmwc.ck Tribes ruusl
show authority to implement each program, jui istfiction over the areas allowed bv each stymie
(assuming s regnhttoiy program is what is beinp sought) and eapability io implement that
program, Approval o! I AS fur one pngrails is by no means an automatic approval for a differed!
ptoerain. Beeau.se the ttndciground injection control pun-jam ol the SI >\\ A is no; at issue hi fiio
aetion ami the Pawner Nation has made no indication of an intent to seek FAS tor M.)\YA
programs, it is premature to address the Tribe s ;ihilii\ to obtain TAS for those programs.
Comment 17ft: OlPA, the Knvuonmemal Fedciation of Oklahoma and I lie barm Bureau each
stale thul approval of the Pawnee Nation's 1 AS application should he delayed until completion
of she report by the (ieneral Accounting Office (C >At >i requested by Senator James Inhofe in a
letter to the Coniptrollei General of the I Inited Slates dated June 1. 2004. in a letter to Regional
Administrator Richard Greene dated June 3. 2tMM. Scnatot fnhofe also requested HP A postpone
program authorizations until tins report can he issued
RcsfionM- 17B: The Pawnee Nation's application fut T \S to develop water quality standards
was submitted in Pi'18, HPA is aware of Senator inhofe's request to GAO However, EPA
believes it has an obligation to issue a decision on this TAS application,
C \nmneni J SB: Ol )iiO comments that the Pawnee Nation did not support certain assertions
made regarding watei quality in the Arkansas River and Black Bear C 'reek
}\c,\pi»tiM- 1SB: These as.seitions by the Pawnee Nation arc not uece-san io I V-W e"\aluaiion ,»?
the Tribe's TAS upplh atson. As stated in a pte\ ions response, the CSV A doe4 noi require a
demonstration of w atei quubi) impairment lot the Paw nee Nation io receiu FAS, Therefore, no
such documental ion is necessary.
< 'onnncn! l^B: Ol )HJ commented thai the Pawnee Nation has requested I AS |o! $401
eei tificution authority, vet does not have approsed water quality standards in place. The
comment asks what standards the Pawnee Nation uonld use for ecitificalton.
Response J9B: EPA is granting the request for the Pawnee Nation to be treated in a maimer
similar to a stale with regard to fWA §t40I certification authority. Ultimately, tin- Pawnee
12
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Nation will certify to Tribal water quality Mandaids when they arc adopted by (he Tribe, and
appnn id bv hi'
Cimuncii! 2 Oil: ODPQ commented at length about F.PAT eap.ibdtiv to mipk men! envmtntnei.iai
programs on metnbcrdseSd allotments throughout< JkUUu>rna .aid attached .iddtliotul mate: inK
regard in|' she Staled opinion ol authority over a!lounei»l,s imdef I he CWA The Chesokee Nation
and die Museogee Creek Nalion also commented regarding PP.Vs luek of scsoniees
Ri-sih'itH .?!'/»' These comment- die uiitsnk I he --cope ofijeo fAS deetsMns PPA i-> granting
T-\S to lite Pawnee Nation lot mbal trust lands »mh FP \ t .nuiunit> »<\ci .iflounutts t* n>>t at
issue here Regmrdiess, bPA wil! eontume lo make e^crs cfTm to fulfill om icsponsihiiilies lo
implement environmental laws,
Comniaii 2 if" The i 'hemkee Nation, the Muscogee Creek Nation the Pastern Shaw nee Tribe
of Oklahoma. I he Sencv .1 (':i\ nga 1 nbe ol < HJaboma, NTH' and the Saint Mohawk I uiv
Lonimenlcii in .stippoi? id appsoval of die Pawnee Nation TAN The Saint Regtr. Mohawk Tribe
asserts thai die Pawnee Nation suhmitted an application that meets all C A\ \ iu|iiiremcnis and
that "there is no legal reason io further delay approval" of* the application. 'The Tribal
coimnentcts assert that Tubes haw inherent authority a.s sovereign governments and TAS
authorization is a means of exercising thai authority.
Resjh>n\( 2 /R We agree dial PPA should ponced with a de> immp legafihng !he Pawnee Nation
TAS application.
Comment 21B: The P,astern Shawnee Tnhe of < )k!uhoma, I tie Sencca-Cavuga Tribe of
Okiahoma. NTEC and die Samt Regis Mohawk Tribe p-unt out that, in the eonie\t of
implementation of the CWA, "states have otten established differing siandatds. usually without
unreasonable consequences/' These commented acknowledged that in the tow instanees where
there is a conflict, federal courts decide fhe issues, citing to the case of Arkansas \, Oklahoma,
503 U.S. l'l t PW2), They further commented that Congress affirmed the "fundamental right ot
both tribal and stale soveieigns to set stamiauis to proieet dieu eiti/ens" and that it is appropriate
for EPA to have a ennfikt resolution mechanism i<« "rc.suhe seiiou.s differences if and when the\
might anseT Se\ eral Fsibes point end that thi- nice s n t ha-, not been needed beeause tvibai
standards are usually consistent with state standards.
Response J2B: The dispute icsolulion mechanism mentioned tn these comments has a statu! 01 \
basis in of Hie C\\'»\ PPA !ia> poHmilgaied regulation^ v.onccrnmi! tht" process at 40
OR ^ u 1 /
13
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PREPARED BY: GOSE AND ASSOCIATES — STILLWATER, OKLAHOMA
OCT. 14, 1987
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