U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION 6
DECISION DOCUMENT:
APPROVAL OF THE PUEBLO OF SAN FELIPE'S APPLICATION FOR
TREATMENT IN A SIMILAR MANNER AS A STATE FOR
CLEAN WATER ACT SECTIONS 303(c) WATER QUALITY STANDARDS
AND 401 WATER QUALITY CERTIFICATION PROGRAMS
April 2023
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Contents
I. INTRODUCTION AND INDEX TO DECISION 1
A. Introduction 1
B. Index to Decision 1
1) Application Materials 1
2) Comments Regarding Tribal Authority 2
3) Statutory and Regulatory Provisions 2
4) Policy Statements 3
II. REQUIREMENTS FOR APPROVAL 3
A. Federal Recognition 4
B. Sub stantial Governmental Duties and Powers 4
C. Jurisdiction over Waters within the Borders of the Pueblo of San Felipe 5
1) Map or Legal Description 6
2) Statement Describing the Basis for the Tribe's Authority 8
3) Identification of the Surface Waters for which the Tribe Proposes to Establish Water
Quality Standards 8
4) Comments on Pueblo of San Felipe's Assertion of Jurisdiction 8
5) Conclusion Regarding Jurisdiction 9
D. Capability 9
1) Description of the Pueblo of San Felipe's Prior Management Experience 9
2) List of Tribally Administered Environmental Programs 9
3) Description of Entities which Exercise Executive, Legislative, and Judicial
Functions 10
4) Description of the Agency of the Tribal Government which will Assume the Primary
Responsibility for Establishing, Reviewing, Implementing, and Revising Water Quality
Standards 10
5) Description of the Technical and Administrative Capabilities of the Staff to
Administer and Manage an Effective Water Quality Standards Program 10
III. THE EPA'S TAS DETERMINATION IS A SEPARATE PROCESS FROM AN EPA
DECISION ON A TRIBE'S SUBMITTAL OF WATER QUALITY STANDARDS 11
IV. CONCLUSION 11
APPENDIX A: SUPPORTING INFORMATION A-l
APPENDIX B: RESPONSE TO COMMENTS B-l
APPENDIX C: MAPS FROM APPLICATION TO ADMINISTER A WATER QUALITY
STANDARDS PROGRAM AND A WATER QUALITY CERTIFICATION PROGRAM...C-l
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I. Introduction and Index to Decision
A. Introduction
This Decision Document provides the basis and supporting information for the U.S. Environmental
Protection Agency's (the EPA or Agency) decision to approve the Pueblo of San Felipe's
application for treatment in a similar manner as a state (TAS) for Clean Water Act (CWA) section
303(c) water quality standards and section 401 water quality certification programs, pursuant to
section 518 of the CWA and part 131 in Title 40 of the Code of Federal Regulations (CFR).
Section 518 of the CWA authorizes the EPA to treat an Indian tribe as a state to manage and
protect water resources "within the borders of an Indian reservation," for purposes of certain CWA
programs, including the section 303(c) water quality standards and section 401 water quality
certification programs.
The EPA received the Pueblo of San Felipe's TAS application (referred to as "the application") on
March 8, 2022. The application includes six supporting exhibits identified as Exhibits A-F. The
federal regulation at 40 CFR part 131 establishes the process by which the Agency implements the
water quality standards program and its authority to determine whether to approve an Indian tribe's
TAS application for the purposes of administering programs under sections 303(c) and 401 of the
CWA. See 56 Fed. Reg. 64876 (December 12, 1991), as amended by 59 Fed. Reg. 64339
(December 14, 1994) and clarified by 81 Fed. Reg. 30183 (May 16, 2016).
The application seeks approval to administer the CWA water quality standards and certification
programs for all lands within the exterior boundaries of the Pueblo of San Felipe, as explained
herein. The Pueblo of San Felipe consists of a total of 59,485.78 acres (for purposes of this
application) and includes land grants (restricted fee lands), formal reservation lands, and trust
lands. These lands comprise the formal and informal reservation collectively referred to as a
"federal Indian reservation" under the CWA.
B. Index to Decision
The following documents constitute a portion of the full docket for this Agency decision, as
detailed in Appendix A. All relevant materials in the docket are located in the EPA's official files
and electronic storage systems.
1) Application Materials
The Pueblo of San Felipe's TAS application for the water quality standards and certification
programs under CWA sections 303(c) and 401, respectively, includes the following documents:
Pueblo of San Felipe Application for Clean Water Act Eligibility to Administer a Water
Quality Standards and a Water Quality Certification Program (including cover letter from
Governor Carl Valencia and Lt. Governor Joseph Trancosa, dated March 8, 2022)
Exhibit A: Bureau of Indian Affairs San Felipe Pueblo Land Status Report
Exhibit B: Letter of Certification, Bureau of Indian Affairs Southern Pueblos Agency
Realty Officer
Exhibit C: Warranty Deed for the Former Ball Ranch
Exhibit D: Maps 1 and 2
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Exhibit E: Statement of San Felipe Legal Counsel
Exhibit F: DNR [Department of Natural Resources] Organizational Chart
2) Comments Regarding Tribal Authority
As provided at 40 CFR 131.8(c)(2) and noted in Appendix A, the EPA provided appropriate
governmental entities1 notice and an opportunity to comment on the substance and basis of the
Pueblo of San Felipe's assertion of authority, by letters dated May 31, 2022. The complete
application and the EPA's 2010 approval of the Pueblo of San Felipe's 2009 TAS application for
purposes of CWA section 106 were posted on an EPA website on June 1, 2022, during the
comment period.
By letters dated May 31, 2022, the EPA offered the Pueblo of Santo Domingo and the Pueblo of
Santa Ana the opportunity to consult and comment on the EPA's review of the application
submitted by the Pueblo of San Felipe. The Pueblo of Santo Domingo and the Pueblo of Santa Ana
both share a common border with the Pueblo of San Felipe and are thus also appropriate
governmental entities for purposes of 40 CFR131.8(c)(2).
The Pueblo of Santa Ana provided comments supporting approval of the Pueblo of San Felipe's
application to the EPA, as noted in Appendix B of this document. The EPA also received responses
from the New Mexico Environment Department and the U.S. Forest Service - Southwestern
Region that supported approval of the Pueblo of San Felipe's application. The EPA received no
adverse comments. A Response to Comments is found in Appendix B of this document.
Consistent with Agency practice, the EPA also provided local governments and the public an
opportunity to comment on the assertion of authority in the Pueblo of San Felipe's application. A
public notice was published in the Albuquerque Journal on Sunday, June 5, 2022. The notice
identified the EPA's website with the posted TAS application, and requested that comments be
submitted by Friday, July 8, 2022. The EPA did not receive any comments in response to the notice
published in the newspaper.
3) Statutory and Regulatory Provisions
The following statutory and regulatory provisions govern this eligibility decision:
Section 518 of the CWA, 33 U.S.C. section 1377, authorizes the EPA to treat an Indian
tribe in a similar manner as a state if it meets specified eligibility criteria; and
40 CFR 131.4(c) and 131.8 establish the regulatory requirements for a tribe to obtain
eligibility approval and the procedures for the EPA to process a tribe's eligibility
application. See Amendments to the Water Quality Standards Regulation That Pertain to
Standards on Indian Reservations, 56 Fed. Reg. 64876 (December 12, 1991); 59 Fed. Reg.
64339 (December 14, 1994); and 81 Fed. Reg. 30183 (May 16, 2016).
1 The EPA defines the term "appropriate governmental entities" as "States, Tribes, and other Federal entities located
contiguous to the reservation of the tribe which is applying for treatment as a State." 56 Fed. Reg. 64876, 64884
(December 12, 1991). Consistent with the EPA's regulations, the EPA provided notice to all appropriate governmental
entities in this case. The EPA also exercised its discretion to provide direct notice to certain additional entities identified in
Appendix A.
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4) Policy Statements
The following policy statements and guidance are also relevant to this eligibility decision:
The document titled EPA Policy for the Administration of Environmental Programs on
Indian Reservations (November 8, 1984)2
The EPA's memorandum titled EPA/State/Tribal Relations, by the EPA Administrator
William K. Reilly (July 10, 1991)3
The EPA's memorandum titled Adoption of the Recommendations from the EPA
Workgroup on Tribal Eligibility Determinations, by the EPA Assistant Administrator
Robert Perciasepe and General Counsel Jonathan Cannon (March 19, 1998)4
The EPA's memorandum titled Strategy for Reviewing Tribal Eligibility Applications to
Administer EPA Regulatory Programs, by the EPA Deputy Administrator Marcus Peacock
(January 23, 2008)5
II. Requirements for Approval
Under CWA section 518 and the implementing regulation at 40 CFR 131.8(a), four requirements
must be satisfied before the EPA can approve an Indian tribe's application for eligibility to
administer a water quality standards program under CWA section 303(c) and a water quality
certification program under CWA section 401. The requirements are:
1) The Indian tribe is recognized by the Secretary of the Interior and exercises authority over a
reservation;
2) The Indian tribe has a governing body carrying out substantial governmental duties and
powers;
3) The water quality standards program to be administered by the Indian tribe pertains to the
management and protection of water resources which are within the borders of the Indian
reservation and held by the Indian tribe, within the borders of the Indian reservation and
held by the United States in trust for Indians, within the borders of the Indian reservation
and held by a member of an Indian tribe if such property interest is subject to a trust
restriction on alienation, or otherwise within the borders of the Indian reservation; and
4) The Indian tribe is reasonably expected to be capable, in the EPA Regional Administrator's
judgment, of carrying out the functions of an effective water quality standards program in a
manner consistent with the terms and purposes of the CWA and applicable regulations.
The EPA's regulation at 40 CFR 131.8(b) identifies the information that must be included in an
application by an Indian tribe to administer a water quality standards program. Consistent with the
regulation at 40 CFR 131.8(b)(6), where an Indian tribe has previously qualified for TAS under a
different CWA or Safe Drinking Water Act program, the tribe need only provide the required
information which has not been submitted in a previous application. Where the EPA determines
that an Indian tribe is eligible to the same extent as a state for purposes of administering a water
quality standards program, the tribe likewise is eligible to the same extent as a state for purposes of
2 Available at https://www.epa.gov/sites/production/files/2015-04/documents/indian-policY-84.pdf
3 Available in pages 98-103 of Working Effectively with Tribal Governments
4 Available in the Supporting Information for this action
5 Available at https://www.epa.gov/sites/production/files/2015-10/documents/strategy-for-reviewing-applications-for-
tas O.pdf
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certifications conducted under CWA section 401. See 40 CFR 131.4(c). Indian tribes authorized to
administer the CWA water quality standards program are also "affected states" under CWA
sections 402(b)(3) and (5), and 40 CFR 122.4(d). As "affected states," they receive notice and an
opportunity to comment on certain permits such as those issued under the National Pollutant
Discharge Elimination System program.
The Pueblo of San Felipe submitted an application in 2009 to administer the CWA section 106
program (referred to as "the 2009 TAS application"), which was approved by the EPA on
September 2, 2010 (referred to as "2010 CWA section 106 approval"). Relying on 40 CFR
131.8(b)(6), the Pueblo of San Felipe in its current application has cited to this application and
approval and provided new information as appropriate.
A. Federal Recognition
Under CWA section 518 and its implementing regulation, the EPA can approve an application
from an eligible "Indian tribe" that meets the definitions set forth in CWA section 518(h) and 40
CFR 131.3(k) and (1). See 40 CFR 131.8(a)(1). The term "Indian tribe" is defined as "any Indian
tribe, band, group, or community recognized by the Secretary of the Interior and exercising
governmental authority over a Federal Indian reservation." CWA section 518(h)(2), 40 CFR
131.3(1). The term "Federal Indian reservation" means "all land within the limits of any Indian
reservation under the jurisdiction of the United States Government, notwithstanding the issuance of
any patent, and including rights-of-way running through the reservation." CWA section 518(h)(1),
40 CFR 131.3 (k).
Consistent with 40 CFR 131.8(b)(6), the application references the EPA's approval of the Pueblo
of San Felipe's TAS application for the CWA section 106 program on September 2, 2010. The
Pueblo is included as the "Pueblo of San Felipe" in the U.S. Department of the Interior's current
list of federally recognized tribes. See 86 Fed. Reg. 2112, 2114 (January 12, 2023). Furthermore, as
discussed below, the Pueblo is exercising governmental authority over a reservation within the
meaning of the CWA. Thus, the EPA has determined that the Pueblo of San Felipe meets the
requirements of 40 CFR 131.8(a)(1) and (b)(1).
B. Substantial Governmental Duties and Powers
To demonstrate that it has a governing body currently carrying out substantial governmental duties
and powers over a defined area, 40 CFR 131.8(b)(2) requires that the tribe submit a descriptive
statement that should: (i) describe the form of the tribal government; (ii) describe the types of
governmental functions currently performed by the tribal governing body, such as, but not limited
to, the exercise of police powers affecting (or relating to) the health, safety, and welfare of the
affected population, taxation, and the exercise of eminent domain; and (iii) identify the source of
the tribal government's authority to carry out the governmental functions currently being
performed.
The Pueblo of San Felipe's application, relying on the information in the 2010 CWA section 106
approval, states that it retains its traditional form of government, based on its inherent sovereign
powers of self-governance. The Pueblo of San Felipe is governed by its Tribal Council, whose
members serve for life, and a six-member Tribal Administration, consisting of a Governor,
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Lt. Governor, War Chief, Lt. War Chief, Fiscale, and Lt. Fiscale, who serve in those capacities for
a term of one year and then become permanent members of the Tribal Council.
The United States, acting through the U.S Bureau of Indian Affairs (BIA), has expressly
acknowledged that the San Felipe Tribal Council possesses the inherent authority to enact tribal
ordinances and laws to regulate the activities of both tribal members and non-members within the
Pueblo's jurisdiction. See, e.g., 73 Fed. Reg. 47214, 47215 (approving the Pueblo of San Felipe
Liquor Control Ordinance).
In accordance with its traditional law, the Pueblo of San Felipe is charged with protecting the
health, security and general welfare of the San Felipe people and others who enter the Pueblo
boundaries and is empowered to enact ordinances to carry out this duty. The Pueblo of San Felipe
has enacted and is in the continual process of developing and implementing, tribal ordinances and
programs to protect the health, safety, morals, and welfare of all persons within the San Felipe
Pueblo boundaries. Some existing laws implemented by the Pueblo of San Felipe include, but are
not limited to, a comprehensive Housing Ordinance, the San Felipe Gaming Enterprise Charter, a
Gaming Ordinance, a Liquor Control Ordinance, and a Tax Ordinance. Since the Pueblo of San
Felipe's submittal of its 2009 TAS application, the Tribal Council has adopted a Judicial Code and
a Sex Offender Registration and Notification Act (SORNA) ordinance, and taken numerous other
actions to protect the health, security and general welfare of the San Felipe people and others who
enter the San Felipe Pueblo boundaries.
In 2000, the Pueblo of San Felipe established its Department of Natural Resources ("Department"
or "DNR") to develop the Pueblo's technical capacity and infrastructure to administer
environmental programs within the Pueblo boundaries. The Department works to ensure the
protection, conservation, sustainability, and management of the land, water, and air resources of the
Pueblo of San Felipe for enhancement and the beneficial purposes of present and future generations
in a manner that reflects the cultural and traditional beliefs of the Pueblo of San Felipe and its
Tribal Council. The Department is responsible for implementing the Pueblo of San Felipe's surface
water quality program
The above description of the bases of authority and of the functions carried by the Pueblo of San
Felipe to regulate the conduct of its members, and to protect and maintain tribal resources and
health, demonstrate that the Pueblo of San Felipe has met the requirements of 40 CFR 131.8(a)(2)
and (b)(2).
C. Jurisdiction over Waters within the Borders of the Pueblo of San Felipe
Under 40 CFR 131.8(b)(3), a tribe is required to submit a statement of authority to regulate water
quality. The statement should include: (i) a map or legal description of the area over which the
Indian tribe asserts authority to regulate surface water quality; (ii) a statement by the tribe's legal
counsel (or equivalent official) that describes the basis for the tribe's assertion of authority and
which may include a copy of documents such as tribal constitutions, by-laws, charters, executive
orders, codes, ordinances, and/or resolutions which support the tribe's assertion of authority; and
(iii) an identification of the surface waters for which the tribe proposes to establish water quality
standards.
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1) Map or Legal Description
The Pueblo of San Felipe application includes maps and other documents described below that
show the location of land belonging to the Pueblo and for which they seek authority to administer
the water quality standards and water quality certification programs. The Pueblo of San Felipe
application covers all waters within the boundaries of the Pueblo as described in the application.
In support of its current application, the Pueblo of San Felipe provided a San Felipe Pueblo Land
Status report (Exhibit A), a map and certification letter from the BIA Realty Officer (Exhibit B),
the Warranty Deed for the former Ball Ranch (Exhibit C), and maps of the Pueblo's lands (Exhibit
D). Additional deeds and title documents for lands included within the Pueblo were provided in the
prior CWA section 106 TAS application.
The following list of parcels make up the Pueblo of San Felipe boundaries consisting of
59,485.78 acres over which the Pueblo asserts jurisdiction for purposes of administering programs
under CWA sections 303(c) and 401. Lands identified below are general descriptions of the tracts
and include only the acreages of the tracts that are currently held and/or used by the Pueblo of San
Felipe and included in this application.
Original Grant - Pueblo restricted fee lands acquired by Spanish land grant on 09/20/1689
(confirmed 12/22/1858, Patented 11/01/1864) totaling (currently) 28,197.93 acres.
Pueblo of San Felipe Reservation - Reservation lands acquired by Executive Order on
06/13/1902 totaling 11,972.90 acres.
Santa Rosa de Cubero Grant - Pueblo restricted fee lands acquired between 1934 and 1938
totaling (currently) 1,440.01 acres.
Portions of the Santo Domingo-San Felipe Joint Grant - Pueblo restricted fee lands
acquired by Spanish land grant in joint ownership with the Pueblo of Santo Domingo on
09/10/1770 (confirmed 12/08/1898, patented 05/05/1905). The area belonging to the Pueblo
of San Felipe within the Pueblo's original land grant totals 396.09 acres.
Rehabilitation Fund Purchases - Trust land (multiple parcels) acquired by deed on
03/28/1941 totaling 160.00 acres.
Trust Land Acquisition (exchange with Frank Bond & son) - Trust land acquired by deed
on 11/30/1956 totaling 640.00 acres.
Trust Land Acquisition - Trust land acquired by Public Law 87-231 on 09/14/1961 totaling
5,347.73 acres.
School Site Transfer - Trust lands acquired by transfer from the U.S. on 03/20/1985 as
described by Federal Register notice dated 08/30/1985 totaling 6.10 acres.
Ball Ranch - Trust land acquired on 12/01/2010 and conveyed into trust on 06/14/2011
totaling 11,325.02 acres.
Santo Domingo - San Felipe Grant
As depicted in the Pueblo of San Felipe's application, the Pueblo seeks coverage over a 396.09
acre area within a larger area known as the San Felipe and Santo Domingo Joint Use Area located
at the northern boundary of the Pueblo. See detailed map in Appendix C of this document (Exhibit
D, Map 2 of application). According to the 1770 Spanish Land Grant record, both Pueblos were
granted "the piece of lands they ask for equally to the one and to the other Pueblo, so that one
league being measured from the Pueblo of Santo Domingo to the South and another from the San
Felipe to the North in the center of the space of cultivable lands which may remain a permanent
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landmark shall be placed so that each Pueblo may recognize its appurtenance ... ." The Patent to
Santo Domingo-San Felipe Grant (May 5, 1905) indicates that the total area for the grant,
recognized by the United States and following any adjudicated private land claims, is
approximately 1,070.688 acres. According to the BIA San Felipe Land Status report, the area
apportioned to the Pueblo of San Felipe is 396.09 acres, which is the area that is included in this
application.
The EPA sought and received clarification from the Pueblo of San Felipe and the BIA, Southern
Pueblos Agency about the legal status of this grant. The EPA learned that both Pueblos have used
this area for generations and that each recognizes and uses only that portion that is within their own
original land grant boundaries. The areas are delineated by fencing along each of the Pueblos'
original land grant boundaries which separate the lands used by each. The portion located within
the Pueblo of San Felipe is the 396.09 acres indicated on the BIA Pueblo of San Felipe Land Status
Report. In support of the Pueblo of San Felipe's application to include the 396.09 acres, the EPA
received a letter from the BIA, Southern Pueblos Agency, Realty Officer James Ration certifying
that all the "lands shown on the San Felipe Pueblo Land Status document dated 10/03/2011 belong
to the Pueblo" and are not in conflict with lands belonging to the Pueblo of Santo Domingo,
including the remainder of the Joint Use Area that belongs to them.
Based on all information presented in support of this application, the EPA concludes that it is
appropriate to include the 396.09 acres of the Joint Use Area that are within the Pueblo of San
Felipe's original land grant as part of this approval. During the 30-day comment period for affected
governmental entities, the EPA notified the Pueblo of Santo Domingo about the Pueblo of San
Felipe's assertion of jurisdiction for the CWA section 303(c) and section 401 programs over the
396.09 acre portion of the Joint Use Area. The EPA received no written feedback or comments
from the Pueblo of Santo Domingo.
San Felipe Grant/El Ranchito Grant (Pueblo of San Felipe and Pueblo of Santa Ana)
The Pueblo of San Felipe expressly excludes from this application a portion of the San Felipe
Grant near the southwest corner of the Pueblo identified on map 1 in Exhibit D as the San
Felipe/Santa Ana Overlap Area, which is further identified as "in conflict with" the Pueblo of Santa
Ana's El Ranchito Grant. During the comment period for affected governmental entities, the
Pueblo of Santa Ana stated they generally approve of the Pueblo of San Felipe's request for TAS;
however, they expressed concern about the characterization of the area as an "overlap" area and
stated that in their view, the Pueblo of San Felipe "no longer has any valid claim to the former
overlap area based on a decision by the U.S. Department of the Interior Board of Land Appeals."6
The Pueblo of San Felipe responded that while they disagree with statements made in the Pueblo of
Santa Ana comment letter, the Pueblo excluded the parcel of land from this application. The EPA
acknowledges that this parcel was excluded from the application, and therefore the EPA is not
taking any action or making any determination about the validity of claims asserted by either
Pueblo at this time.
The EPA concludes that the Pueblo of San Felipe has satisfied 40 CFR 131.8(b)(3)(i) by providing
maps and legal descriptions of the area over which the Pueblo asserts authority to regulate surface
water quality under the CWA.
6 Pueblo of San Felipe, 190 I.B.L.A. 17 (2017). Available at https://www.doi.gov/oha/organization/ibla/Finding-IBLA-
Decisions.
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2) Statement Describing the Basis for the Tribe's Authority
The Pueblo of San Felipe relies on both its inherent authority and the express congressional
delegation of civil authority that section 518 of the CWA provides as the basis for its authority to
administer the CWA section 303(c) and section 401 programs.
Section 518 includes an express congressional delegation of civil regulatory authority to eligible
tribes for purposes of administering CWA programs over their entire reservations.7 When
considering the congressional delegation of authority under the CWA, the main focus of the EPA's
determination of the extent of an applicant tribe's jurisdiction for CWA regulatory purposes is
identifying the geographic boundaries of the Indian reservation area over which the congressionally
delegated authority would apply. See 81 Fed. Reg. 30183, 30194 (May 16, 2016). As described in
the previous section, the boundaries of the San Felipe Pueblo have been properly identified. In
addition, the Pueblo of San Felipe asserts that there are no limitations or impediments to its ability
to accept and effectuate the congressional delegation of authority under the CWA over lands within
the Pueblo. Moreover, the EPA received no comments challenging this assertion of the Pueblo's
authority, and the EPA is not otherwise aware of any impediment limiting the Pueblo's ability to
effectuate the congressionally delegated authority. The EPA therefore concludes that the Pueblo of
San of Felipe can rely on the congressional delegation of authority to regulate surface water quality
over their formal and informal reservation lands, as described above, and that the Pueblo has
satisfied the application requirement at 40 CFR 131.8(b)(3)(ii).
3) Identification of the Surface Waters for which the Tribe Proposes to Establish Water
Quality Standards
The surface waters for which the Pueblo of San Felipe proposes to establish water quality standards
are the same waters covered by the 2009 TAS application and include the following waters and
their tributaries that occur within those areas: the Rio Grande River, Tonque Arroyo, Maria Chavez
Arroyo, Lamita Arroyo, Arroyo de la Vega de los Tanos (Elota Arroyo), Borrego Arroyo, San
Francisco Arroyo, the Indian and conservancy ditches, and all unnamed waters located within the
boundaries of the Pueblo. Exhibit D of the application includes maps identifying the location of
waterbodies within the boundaries of the Pueblo.
The EPA concludes that the property descriptions and maps the Pueblo of San Felipe submitted to
identify the location of surface waters for which the Pueblo proposes to establish water quality
standards satisfy 40 CFR 131.8(b)(3)(iii).
4) Comments on Pueblo of San Felipe's Assertion of Jurisdiction
As discussed above, the EPA provided the appropriate governmental entities and the public with
notice of the opportunity to comment on the substance and basis of the Pueblo of San Felipe's
assertion of authority and the scope of the lands sought to be covered by Pueblo of San Felipe's
program, as part of the review process for this application. The EPA received no competing or
conflicting jurisdictional claims regarding the identified lands included in the application.
7 See Revised Interpretation of Clean Water Act Tribal Provision, 81 Fed. Reg. 30183 (May 16, 2016) ("Interpretive
Rule").
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5) Conclusion Regarding Jurisdiction
Based on the above discussion, the EPA concludes that the Pueblo of San Felipe meets the
requirements in 40 CFR 131.8(a)(3) and (b)(3).
D. Capability
To demonstrate that an Indian tribe is reasonably expected to be capable of administering an
effective water quality standards program, 40 CFR 131.8(b)(4) requires that a tribe's application
include a narrative statement of the tribe's capability. The narrative statement should include: (i) a
description of the Indian tribe's previous management experience, which may include the
administration of programs and services authorized by the Indian Self-Determination and
Education Assistance Act, the Indian Mineral Development Act or the Indian Sanitation Facility
Construction Activity Act; (ii) a list of existing environmental and public health programs
administered by the tribal governing body and copies of related tribal laws, policies, and
regulations; (iii) a description of the entity (or entities) which exercise the executive, legislative,
and judicial functions of the tribal government; (iv) a description of the existing, or proposed,
agency of the Indian tribe which will assume primary responsibility for establishing, reviewing,
implementing and revising water quality standards; and, (v) a description of the technical and
administrative capabilities of the staff to administer and manage an effective water quality
standards program or a plan which proposes how the tribe will acquire additional administrative
and technical expertise.
1) Description of the Pueblo of San Felipe's Prior Management Experience
The Pueblo of San Felipe has developed numerous administrative, agriculture, environmental,
natural resource, finance, public health, and social service programs, and through the Pueblo's
implementation of these programs, has demonstrated management experience. The Pueblo of San
Felipe's application includes an organization chart that identifies the Pueblo's governmental
structure. The organizational chart identifies positions within the DNR that implement a wide range
of programs. In addition, as discussed above in section II.B., the Pueblo of San Felipe's TAS
application for the CWA section 106 program identified existing laws and ordinances that illustrate
the breadth of the Pueblo's management experience.
2) List o f Triballv Administered Environmental Programs
The Pueblo of San Felipe's current application and the 2009 TAS application include a list of
departments that serve public health or environmental protection functions. For example, the
Pueblo of San Felipe's DNR provides services for agricultural programs, geographic information
system (GIS) support, land management, and water resources. Each of these programs provides
significant benefits to the Pueblo of San Felipe, and to surrounding communities. The Pueblo of
San Felipe has also demonstrated its ability to effectively track and manage funding programs. As
noted in the Pueblo of San Felipe's CWA section 106 TAS application, the Pueblo successfully
administers a variety of federal grants such as the General Assistance Program. Since 2011, the
Pueblo of San Felipe has successfully implemented cooperative agreements under CWA section
106.
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3) Description of Entities which Exercise Executive, Legislative, and Judicial Functions
As described in section B above, the Pueblo of San Felipe's government exercises executive,
legislative and judicial authority. These functions are exercised by the Tribal Council and the
Tribal Administration. The Tribal Council enacts tribal ordinances and laws to regulate the
activities of both tribal members and non-members within the Pueblo of San Felipe's jurisdiction.
The Tribal Administration includes a Governor, Lt. Governor, Fiscale and Lt. Fiscale. After
completing a one-year term in these positions, members are appointed to the Tribal Council and
serve for life.
4) Description of the Agency of the Tribal Government which will Assume the Primary
Responsibility for Establishing, Reviewing, Implementing, and Revising Water Quality
Standards
The Pueblo of San Felipe's DNR will be responsible for establishing, reviewing, implementing,
and revising water quality standards. The 2009 TAS application includes the following mission
statement for the Department: "protect, preserve, and enhance the land, water, air, wildlife, and
cultural resources of the Pueblo for the benefit of present and future generations."
As stated above, the EPA approved the Pueblo of San Felipe's TAS application for funding under
the CWA section 106 water pollution control program in 2010. The Pueblo of San Felipe has used
these funds to develop quality assurance project plans, conduct water quality monitoring, and
assess water quality data. Under the current monitoring program, the DNR staff conducts
monitoring of surface waters at 10 sites, on a monthly basis. Parameters include temperature,
specific conductance, dissolved oxygen, pH, turbidity, Escherichia coli, and stream velocity.
Selected sites are tested for total nitrogen, total phosphorous, dissolved metals, and radionuclides
on an annual (or more frequent) basis. Data are uploaded to the federal Water Quality Portal, which
is used by over 400 Indian tribes, states, and federal and local agencies. The DNR uses this data to
prepare an annual Tribal Assessment Report for the Tribal leadership and community. Finally, staff
in the DNR participate in training opportunities and continually seek opportunities to expand the
monitoring program to assess the functions and health of the Pueblo of San Felipe's water
resources.
5) Description of the Technical and Administrative Capabilities of the Staff to Administer and
Manage an Effective Water Quality Standards Program
The Pueblo of San Felipe's application identifies the DNR as the entity with primary responsibility
for administering the Pueblo's water quality standards and certification programs. The Governor
retains oversight of the Department's activities and will issue water quality certifications under
CWA section 401, based on review of information by staff. The Department's staff responsible for
carrying out the duties to establish, review, implement, and revise water quality standards include:
Director: The DNR's Director provides direction, oversight, and planning for effective
operation of programs. This position requires a bachelor's degree in a relevant field.
Environmental Specialist: The DNR's Environmental Specialist manages the CWA section
106 program which includes surface water sampling, data collection, management, analysis
and reporting, and additional duties. This position requires a bachelor's degree in
Environmental Science.
10
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Water Resource Specialist: The DNR's Water Resource Specialist is also responsible for
activities under the CWA section 106 program, as well as development of watershed plans,
implementation of restoration projects and monitoring of irrigation systems. This position
requires a bachelor's degree or four years of related work experience.
Based on the information provided by the Pueblo of San Felipe describing capability to administer
effective water quality standards and certification programs under the CWA, the work completed
under CWA section 106 funding, and the EPA's experience working with the DNR, the EPA
concludes that the Pueblo of San Felipe has met the requirements at 40 CFR 131.8(a)(4) and (b)(4).
III. The EPA's TAS Determination is a Separate Process from an EPA Decision on a Tribe's
Submittal of Water Quality Standards
This TAS decision does not constitute an approval of any water quality standards. The EPA's review
and approval (or disapproval) of new or revised water quality standards is a separate action under
the CWA, distinct from the EPA's decision on the Pueblo of San Felipe's application for eligibility
to administer the CWA section 303(c) and section 401 programs. Under the CWA, an Indian tribe
must first be approved for TAS before EPA can approve or disapprove water quality standards
submitted by the tribe under CWA section 303(c). Development of such standards would remain
subject to all requirements of the EPA's regulations, including requirements for notice and comment.
Such standards would still need to be submitted to the EPA for review under section 303(c) to ensure
they meet applicable CWA and regulatory requirements. If the EPA approves an Indian tribe's water
quality standards, those standards then become federally applicable water quality standards for CWA
purposes over those waters of the United States that are within the scope of the TAS approval.
IV. Conclusion
The EPA has reviewed the Pueblo of San Felipe's application for TAS for CWA sections 303(c)
and 401. The EPA has assessed whether the application meets the eligibility criteria established by
CWA section 518 and the applicable regulation. Based upon this review, the EPA concludes that
the Pueblo of San Felipe has made the required demonstration to meet the eligibility and
application requirements at 40 CFR 131.8(a)(l)-(4) and (b)(l)-(6) to administer the water quality
standards program for surface waters of the Pueblo as described in this decision. Pursuant to 40
CFR 131.4(c), the Pueblo of San Felipe is also eligible to the same extent as a state for purposes of
the water quality certification program under CWA section 401. Additionally, by virtue of this
decision, the Pueblo of San Felipe will be an "affected state" within the meaning of CWA section
402(b)(3) and (5) and its implementing regulation at 40 CFR 122.4(d).
c.._>
April 18. 2023
Charles W. Maguire
Director
Water Division
EPA Region 6
Date
11
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Appendix A: Supporting Information
The following documents constitute a portion of the full docket for this Agency decision. All relevant
materials in the docket are located in the EPA's official file and in electronic systems.
Description (signature, addressee, subject)
Dale
I. Application and supporting materials
Letter from Carl Valencia, Governor, and Joseph Trancosa, Lt. Governor,
Pueblo of San Felipe, to Charles Maguire, Director, U.S. Environmental
Protection Agency - Water Division
Pueblo of San Felipe Application for Clean Water Act Eligibility to
Administer a Water Quality Standards Program and a Water Quality
Certification Program
o Attachment 1: Bureau of Indian Affairs San Felipe Pueblo Land
Status Report
o Attachment 2: Letter of Certification, BIA Southern Pueblos
Agency Realty Officer
o Attachment 3: Warranty Deed for the Former Ball Ranch
o Attachment 4: Maps 1 and 2
o Attachment 5: Statement of San Felipe Legal Counsel
o Attachment 6: DNR Organizational Chart
March 8, 2022
II. Letters and related documents from the EPA
Letter from Charles W. Maguire, Director, EPA Region 6 - Water Division, to
Governor Carl Valencia, Pueblo of San Felipe, acknowledging receipt of the
TAS application
March 10, 2022
Letter from Charles W. Maguire, Director, EPA Region 6 - Water Division, to
Honorable Joseph Sanchez, Governor, Pueblo of Santa Ana, Re: Notification
of consultation and coordination on the Pueblo of San Felipe's request for
approval for eligibility under CWA section 518(e)
May 31, 2022
Letter from Charles W. Maguire, Director, EPA Region 6 - Water Division to
Honorable Sidelio Tenorio, Sr, Governor, Pueblo of Santa Domingo,
Re: Notification of consultation and coordination on the Pueblo of San
Felipe's request for approval for eligibility under CWA section 518(e)
May 31, 2022
A-l
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Description (si«n;ilurc\ ntltlrossoo. subject)
Dsile
Letters from Charles W. Maguire, Director, EPA Region 6 - Water Division, to
appropriate governmental entities providing notice of and an opportunity to
comment on the substance and basis of the Pueblo of San Felipe's assertion of
authority:
Pueblo of Cochiti
Pueblo of Sandia
New Mexico Environment Department
New Mexico Indian Affairs Department
New Mexico Energy, Minerals, and Natural Resources Department
New Mexico Office of the State Engineer
New Mexico Office of the Attorney General
New Mexico State Land Office
New Mexico Department of Transportation
Bureau of Indian Affairs - Southwest Region
Bureau of Indian Affairs - Southern Pueblos Agency
Bureau of Land Management
Bureau of Reclamation
Los Alamos National Laboratory
Federal Highway Administration - New Mexico Division
Indian Health Service - Albuquerque Area
Natural Resources Conservation Service
U.S. Army Corps of Engineers
U.S. Fish and Wildlife Service - Southwest Region
U.S. Fish and Wildlife Service - NM Ecological Services
U.S. Forest Service - Region 3
U.S. Forest Service - Sandia District
U.S. Geological Survey - New Mexico Water Science Center
May 31, 2022
Screen capture documenting materials posted for public comment period
June 1, 2022
Public notice providing an opportunity to comment on the substance and basis
of the Pueblo of San Felipe's assertion of authority, published in the
Albuquerque Journal. Copies of notice mailed to:
Middle Rio Grande Conservancy District
Santa Fe County Manager and Clerk
Sandoval County Manager and Clerk
June 1, 2022
Letter from Charles W. Maguire, Director, EPA Region 6 - Water Division, to
Carl Valencia, Governor, Pueblo of San Felipe, transmitting comments
received during the comment process.
August 23, 2022
A-2
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III. Comments received by the EPA
Letter from Sherri Schwenke, Regional Forester, U.S. Department of
Agriculture (USDA), Forest Service - Southwestern Region, to Charles W.
Maguire, Director, EPA Region 6 - Water Division
June 21, 2022
Letter from John Rhoderick, Acting Director, Water Protection Division, New
Mexico Environment Department, to Diane Evans, EPA Region 6 - Water
Division
June 30, 2022
Letter from Joseph Sanchez, Governor, Pueblo of Santa Ana to Charles W.
Maguire, Director, EPA Region 6 - Water Division
August 12, 2022
Email from Pinu'u Stout, Director, Pueblo of San Felipe Department of
Natural Resources, to Diane Evans, Environmental Scientist, EPA Region 6 -
Water Division
September 23,
2022
A-3
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Appendix B: Response to Comments
The Pueblo of San Felipe submitted an application for treatment in a similar manner as a state for
purposes of administering the water quality standards and water quality certification programs under
CWA sections 303(c) and 401.
In accordance with the EPA's practice and pursuant to 40 CFR 131.8(c), the Agency notified
appropriate governmental entities and the general public of, and provided an opportunity to comment on,
"the substance and basis of the Pueblo's assertion of authority to regulate the quality of reservation
waters." In addition, the EPA offered the Pueblo of Santa Ana and the Pueblo of Santa Domingo the
opportunity to consult and provide their views on the EPA's review of the application submitted by the
Pueblo of San Felipe. Consistent with the Agency's policy and practice, the EPA provided the Pueblo of
San Felipe an opportunity to respond to all comments received.
The EPA received the following comments:
Letter dated June 21, 2022, from Sherri Schwenke, Regional Forester, USD A Forest Service -
Southwestern Region
Letter dated June 30, 2022, from John Rhoderick, Acting Director, Water Protection Division,
New Mexico Environment Department
Letter dated August 12, 2022, from Joseph Sanchez, Governor, Pueblo of Santa Ana8
Summary of Comments and the EPA's Responses
Comment: The New Mexico Environment Department expressed support for approval of the Pueblo of
San Felipe's application. The New Mexico Environment Department also concurred with the Pueblo's
assertion of authority to regulate the quality of waters within the lands identified in the application.
Response: The EPA appreciates the support of the New Mexico Environment Department. The EPA
recognizes the New Mexico Environment Department's cooperative efforts with the Pueblo of San
Felipe and the surface water quality programs of other Indian tribes. The EPA supports continued
cooperative efforts between the State and the Pueblo of San Felipe.
Comment: The Pueblo of Santa Ana submitted a letter of support of the Pueblo of San Felipe's
application. The labeling of the area identified as the "San Felipe/Santa Ana Overlap Area" was also
commented on by the Pueblo of Santa Ana.
Response: The EPA appreciates the support of the Pueblo of Santa Ana. We acknowledge the concerns
expressed by the Pueblo regarding the labeling of the "Overlap Area" and the decisions from the U.S.
Department of the Interior related to this area. The EPA notes that the Pueblo of San Felipe excluded
this area from the application and, therefore, the EPA is taking no action which will affect this area.
8 Although this letter was submitted after the comment period closed, the EPA has exercised its discretion to include and
consider the letter as part of our decision-making.
B-l
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Comment: The USD A Forest Service - Southwestern Region expressed support for approval of the
Pueblo of San Felipe's application. The USDA Forest Service's Water Resource staff on the Cibola
National Forest, south of the Pueblo of San Felipe, also noted there are several small intermittent and
ephemeral drainages that flow North from Forest, across private lands and onto the Pueblo. As
responsible stewards of these precious water resources and as good neighbors, they will continue to do
what they can to protect this resource.
Response: The EPA appreciates the support of the USDA Forest Service - Southwestern Region. The
EPA acknowledges the USDA Forest Service's cooperative efforts with the Pueblo of San Felipe and
the surface water quality programs of other Pueblos and Indian Tribes. The EPA supports continued
collaborative efforts between the agency and the Pueblo of San Felipe.
B-2
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Appendix C: Maps from Application to Administer a Water Quality Standards Program and a
Water Quality Certification Program
C-l
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Legend Fee Lands
^ San Felipe/Santa Ana Overlap Area Eld ridge
|__J San Felipe/Santo Domingo Joint Use Area IH Santlllanas
Q San Felipe Pueblo Moore Ranch
B Jose Sena Abetia AJIoimsni H Wesssly & MelicK
Exhibit D, Map 1
Sari Felipe Lands for
U.S.EPA CWA TAS
7,000 14.000
42,000
|B**'
IVpkrtiwtii 'iF N'liiiril itnuinn
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Water Quality
Monitor Site #1
at Rio Grande
Y//sWater Quality//
V^fMonitor Site #3/^
V^al Co'chiti East Side
Santo Domingo
Pueblo
Water Quality
Monitor Site #2
at Sili Main
SF/SD Joint Use Area
Total Area Used
By San Felipe Pueblo
Is 396.09 Acres
San Felipe
Pueblo
;D
Source: Esri, Maxar, GeoEye, Earthstar Geographies, CNES/Ai d
IGN. and the GIS User Community
,!~:
-MRGCD
^¦Rio Grande
^aSan Felipe/Santo Domingo Joint Use Area
Santo Domingo Pueblo
BSan Felipe Pueblo
a 1,300 2,600 5,200
Exhibit D, Map 2
San Felipe & Santo Domingo
Joint Use Area
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