Water: State, Tribal & Territorial Standards
Authorization for Tribes to Administer Water Quality Standards Program
We recommend that when a Tribe is considering administering the program it should first contact the appropriate regional office. This will help a tribe produce the correct documentation for approval to administer the program. It will also assure that a tribe fully understands what responsibility it will actually incur when it assumes the program.
To qualify to administer the standards program, a Tribe needs to develop and submit an application to the appropriate regional office. There is no pre-set form for the application; however, there are specific qualifications that the Tribe must demonstrate. The region reviews the application, provides an opportunity for others to comment, and independently determines whether the Tribe meets the four basic requirements.
We encourage and support Tribal efforts to administer their own environmental programs. Other governmental entities may comment only on the Tribe's assertion over waters of the reservation. For this reason, we may not immediately approve a Tribe's application to administer the standards program. The Agency must work with the Tribe to resolve any issues over authorization.
The basic requirements for applying to administer the water quality standards program are described in in 40 CFR 131.8 of the water quality standards regulation. Briefly these requirements are that the Tribe must:
- be Federally recognized,
- have a governing body carrying out substantial governmental duties and powers over a Federal Indian reservation,
- have appropriate authority to regulate the quality of reservation waters and
- be capable of carrying out the functions of an effective water quality standards program.
For this last item, a Tribe must have either the technical capability for administering the program or provide a plan showing how it will get such capability.
If a Tribe has submitted information to apply for authorization to administer other Clean Water Act programs, it need only supply additional materials relevant to the water quality standards program which were not previously submitted. The documentation needed to support the application is described in detail in 40 CFR 131.8.
The regional office reviews the Tribal application and decides whether to grant program authorization to the Tribe. The procedures which the Regional Administrator (RA) must follow are described in 40 CFR 131.8(c). The RA must promptly notify the Tribe that the application has been received. This includes notifying within thirty days, the appropriate governmental entities (e.g. States and other governmental entities located next to the reservation, of the application and the basis of the Tribe's assertion of authority over reservation waters. allowing thirty (30) days for review of the Tribe's assertion of authority.
To simplify the application process for Tribes, we promulgated Federal regulations at 40 CFR 131.4(c) (59 FR 64344) affecting the application process for all environmental programs under the Clean Water Act, the Safe Drinking Water Act, and the Clean Air Act. The differences in the program approval process for water quality standards were:
- The phrase "treatment as a State" found in the Clean Water Act, the water quality standards regulation, and all the accompanying guidance documents issued before December 1994 was deleted. It is now simply referred to as the program approval process or treatment in the same manner as a state.
- Several items previously required in the application are now only recommended. The net effect is to give the Tribes and the Region more flexibility in determining what the tribe should include in it's application.
- If we have determined that the Tribe meets the requirements for Federal recognition under the Clean Water Act, Safe Drinking Water Act, or Clean Air Act, these issues do not need to be revisited for any other program.
- Tribes no longer need to apply for program authorization before developing water quality standards but may submit both at the same time. However, we may only approve a tribe's WQS after it has been approved for program authorization.
- We no longer have to consult with the Department of the Interior where Tribal assertion of authority is subject to a competing or conflicting claim.
A Tribe can also either initially apply for authority to administer the program and then develop standards, or submit both the application and the standards for our review at the same time. In cases where a Tribe's jurisdictional showing is complicated, it may be advantageous to the Tribe to develop its WQS while we review its program application. That way, we can begin our review of the Tribe's standards earlier. After receiving approval to administer the program, a Tribe has three years to submit its initial water quality standards to us for review.
Strategy for Reviewing Tribal Eligibility Applications to Administer EPA Regulatory Programs (PDF) (38 pp, 223K, About PDF)—This draft document, when finalized, will establish EPA's strategy for improving the review of tribal applications for treatment in the same manner as a state (TAS) to administer EPA regulatory programs, including water quality standards. It is in the form of a memorandum from EPA Headquarters to the EPA regions that includes several attachments related to programs under the Clean Air Act, the Clean Water Act and the Safe Drinking Water Act. Attachments A through E apply to the water quality standards program.
What is a "Reservation?"
We believe that the term "reservation" in Clean Water Act section 518 should be interpreted in light of Supreme Court case law, including Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 111 S.Ct. 905, 910 (1991). The Supreme Court held that a "reservation," in addition to the common understanding of the term, also includes trust lands that have been validly set apart for a tribes's use even though the land has not been formally designated as a reservation (59 FR at 43960; 56 FR at 64881). In applying this precedent to the term "reservation," the Agency recognizes two categories of lands: Pueblos and tribal trust lands. We will consider on a case-by-case basis whether other types of lands may be considered "reservations" under federal Indian law even though they may not be formally designated as such.
You can find more information at the American Indian Environmental page.