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1 1 (October 18, 2016)

handle is hein.crs/govcevv0001 and id is 1 raw text is: FF. ' riE S-' $. h ,i , October 18, 2016 Recent EPA Actions to Protect Tribal Water Quality The U.S. Environmental Protection Agency (EPA) has recently taken several actions intended to strengthen water quality protection within Indian reservations. Three actions (1) issuance of an interpretive rule in May 2016, (2) promulgation of another rule in September, and (3) request for comment on another possible rule also in September are described by EPA as part of a broad effort to narrow gaps in water quality protection in Indian country. While these initiatives are widely supported by tribal interests, they raise concerns with some states, local governments, and industries. States have primary responsibility for protecting water quality within their borders except in Indian country where civil regulatory authority generally lies with the federal government and the relevant tribe, not with the states. Section 518(e) of the Clean Water Act (CWA) (33 U.S.C. 1377(e)) authorizes EPA to treat eligible federally recognized Indian tribes in a similar manner as a state (i.e., treatment as a state, or TAS) for the purposes of receiving grants under several funding authorities and administering certain regulatory programs of the act. Section 518(h) defines Indian tribe to mean any Indian tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a federal Indian reservation. It also defines federal Indian reservation to mean all land within the limits of any reservation under the jurisdiction of the U.S. government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation (33 U.S.C. 1377(h)). According to EPA, tribes can seek TAS with respect to water resources over all land within a reservation, including, for example, land held in trust by the United States for a tribe, land owned by or held in trust for a member of the tribe, and land owned by non-tribal members. The federal government has recognized 567 tribes. Over 300 of these tribes have reservation lands such as formal reservations, Pueblos, and informal reservations (i.e., lands held in trust by the United States for tribal governments that are not designated as formal reservations), but less than 25% have sought TAS status. CWA Section 518(e) establishes eligibility criteria for TAS, including that the tribe has a governing body carrying out substantial governmental duties and powers and that it has jurisdiction over the media or objects sought to be regulated. EPA promulgated several rules establishing TAS criteria and procedures for Indian tribes interested in administering CWA programs, beginning in 1991. According to EPA, since that time, it has taken what it characterizes as a cautious approach to approving TAS applications by requiring tribes to demonstrate on a case- by-case basis their inherent authority under principles of Indian law that the tribe has jurisdiction to regulate under the CWA, especially inherent tribal authority over non- member activities within a reservation. Inherent authority, or sovereignty, refers to the principle that powers lawfully vested in tribes, such as self-government, are not in general delegated powers granted by express acts of Congress. In May 2016 EPA issued an interpretive rule that revised its long-standing interpretation requiring TAS applicants to demonstrate their inherent authority to regulate under the CWA (see U.S. Environmental Protection Agency, Revised Interpretation of Clean Water Act Tribal Provision, 81 Federal Register 30183-30198, May 16, 2016). Under its reinterpretation, EPA concluded that CWA Section 518 includes an express delegation of authority by Congress to Indian tribes to administer CWA regulatory programs over their entire reservations, subject to the eligibility requirements in Section 518, and that a demonstration of inherent authority is not required. EPA had concluded that demonstrating inherent authority over non-member activities on a reservation creates an unintended administrative burden on applicant tribes and requires substantial commitments of tribal and federal resources. The agency has long viewed Section 518(e) as expressing Congress's preference for tribal regulation of reservation waters. EPA believes that the May 2016 interpretive rule will streamline the process of applying for TAS status, and it estimates that 12 tribes per year would apply under the rule. The rule was based in part on the agency's interpretation of similar Clean Air Act provisions (42 U.S.C. 4201(d)) that, according to EPA, federal courts have held provide an express congressional delegation of authority to eligible tribes to protect environmental resources (see 81 Federal Register 30186-30187). As described previously, EPA has issued rules establishing a process for federally recognized tribes that have TAS status to then obtain TAS for regulatory provisions of the CWA, such as developing water quality standards (40 C.F.R. 131.8), issuing water quality certification (40 C.F.R. 131.4(c)), and issuing discharge permits (40 C.F.R. 123.31- 34). In September 2016, EPA finalized a companion to these procedural rules with a regulation enabling eligible tribes to obtain authority to identify impaired waters on their reservations and to establish total maximum daily loads (TMDLs), as states routinely do for non-Indian land waters (See U.S. Environmental Protection Agency, Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act, 81 Federal Register 65901-65917, September 26, 2016.) gognpo goo g , q 'S a X 11LULANJILiN,

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