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Water: State, Tribal & Territorial Standards

Under Consideration: Potential Reinterpretation of a Clean Water Act Provision Regarding Tribal Eligibility to Administer Regulatory Programs

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EPA is considering reinterpreting Section 518 as a delegation by Congress of authority to eligible tribes to administer Clean Water Act regulatory programs over their entire reservations. This reinterpretation would replace EPA’s current interpretation that applicant tribes need to demonstrate their inherent regulatory authority. This potential action is consistent with legal and programmatic developments since EPA’s current interpretation was issued in 1991.

All other tribal eligibility requirements established in the Act and EPA’s regulations would remain in place. For example, a tribe would still need to identify the boundaries of the reservation areas for which it seeks authority, and adjacent states and other appropriate governmental entities would still have the opportunity to comment on the tribe’s application before EPA approves it. Further, EPA regulations require both authorized tribes and states to consider public comments before they act, such as adopting water quality standards for issuing discharge permits.

Any formal proposal will be published in the Federal Register with a 60-day opportunity for public comment. No final action will be taken without full consideration of public comments.

Please address any pre-proposal questions, views and comments to Fred Leutner at either:

  • Email address: TASreinterpretation@epa.gov
  • Mailing address: Fred Leutner, Office of Science and Technology (Mail Code 4305T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC 20460.

Tribal Consultation and Coordination

In EPA’s April 18, 2014 letter to tribal leaders, (PDF) (4 pp, 62K), EPA initiated consultation and coordination with federally-recognized Indian tribes concerning the potential reinterpretation of Clean Water Act provisions regarding treatment of tribes in a manner similar to a state (TAS). 

The tribal consultation and coordination process is being conducted in accordance with the EPA Policy on Consultation and Coordination with Indian Tribes. The current phase of this process will extend from April 18 through July 7, 2014. If EPA decides to proceed with the reinterpretation, we expect to offer a second phase after the reinterpretation is proposed in the Federal Register.

On May 22 and 28, 2014, EPA held two tribes-only consultation and coordination Webinars entitled: “Potential Reinterpretation of Clean Water Act TAS Provisions.”

EPA also extends an invitation for tribes to request formal government-to-government consultation during the consultation and coordination period. EPA is especially interested in the views and comments of the tribal leaders or their designees. If your tribe wishes to make special arrangements for such consultation on this matter, please contact Beth LeaMond at (202) 566-0444, or email Leamond.Beth@epa.gov.

Intergovernmental Consultation and Coordination

In EPA’s June 18, 2014, letter to Intergovernmental Associations (PDF) (5 pp, 1MB), inviting input from these organizations.

On July 8, 2014, EPA discussed a presentation titled “Potential Reinterpretation of a Clean Water Act Provision Regarding Tribal Eligibility to Administer Regulatory Programs” (PDF) (10 pp, 658K), with these organizations.

EPA’s “Plan EJ 2014-Legal Tools” (PDF) (120 pp, 1MB), provides further information on the background for this potential action. The specific section on treatment of tribes in a manner similar to a state (TAS) and Clean Water Act Programs is found on pages 79-80.

Other Interested Parties

EPA is willing to meet with any other groups interested in this action to obtain their input.

Reference Materials

Statutes

TAS Regulations

EPA Guidance

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