[Federal Register Volume 80, Number 152 (Friday, August 7, 2015)]
[Proposed Rules]
[Pages 47430-47441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19351]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 123, 131, 233, 501
[EPA-HQ-OW-2014-0461; FRL-9930-57-OW]
Revised Interpretation of Clean Water Act Tribal Provision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interpretive rule; request for comments.
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SUMMARY: Waters on the majority of Indian reservations do not have
water quality standards under the Clean Water Act to protect human
health and the environment. Only 40 of over 300 federally recognized
tribes with
[[Page 47431]]
reservations have completed the process of obtaining EPA's approval to
be treated in a manner similar to a state (TAS), and adopting standards
for their waters that EPA has approved. EPA proposes to streamline how
tribes apply for TAS for the water quality standards program and other
Clean Water Act regulatory programs. The proposal would reduce the
burden on applicant tribes and advance cooperative federalism by
facilitating tribal involvement in the protection of reservation water
quality as intended by Congress. Since 1991, EPA has followed a
cautious approach that requires applicant tribes to demonstrate
inherent authority to regulate waters and activities on their
reservations under principles of federal Indian common law. The Agency
has consistently stated that its approach was subject to change in the
event of further congressional or judicial guidance addressing tribal
authority under section 518 of the Clean Water Act. Having received
such guidance, EPA proposes to conclude definitively that section 518
includes an express delegation of authority by Congress to eligible
Indian tribes to administer regulatory programs over their entire
reservations. This reinterpretation would eliminate the need for
applicant tribes to demonstrate inherent authority to regulate under
the Act, thus allowing tribes to implement the congressional delegation
of authority unhindered by requirements not specified in the statute.
The reinterpretation would also bring EPA's treatment of tribes under
the Clean Water Act in line with EPA's treatment of tribes under the
Clean Air Act, which has similar statutory language addressing tribal
regulation of Indian reservation areas. This action would not revise
any regulatory text. Regulatory provisions would remain in effect
requiring tribes to identify the boundaries of the reservation areas
over which they seek to exercise authority and allowing the adjacent
state(s) to comment to EPA on an applicant tribe's assertion of
authority. As a streamlining step, the proposed interpretive rule would
have no significant cost.
DATES: EPA must receive comments on this proposal on or before October
6, 2015. EPA will discuss this proposed rule and answer questions about
it in a webinar during the above comment period. If you are interested,
see EPA's Web site at http://water.epa.gov/scitech/swguidance/standards/wqslibrary/tribal.cfm for the date and time of the webinar
and instructions on how to register and participate. Additionally,
under the Paperwork Reduction Act, any comments on the information
collection provisions of this proposal are best assured of having full
effect if the Office of Management and Budget receives a copy of your
comments on or before September 8, 2015.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2014-0461, by one of the following methods:
http://www.regulations.gov: Follow the online instructions
for submitting comments.
Email: [email protected].
Fax: 202-566-0409
Mail: Water Docket, Environmental Protection Agency, Mail
Code 2822T, 1200 Pennsylvania Ave. NW., Washington, DC 20460.
Attention: Docket ID No. EPA-HQ-OW-2014-0461. In addition, please mail
a copy of your comments on the information collection provisions to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Attn: Desk Officer for EPA, 725 17th St. NW., Washington, DC
20503.
Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301
Constitution Ave. NW., Washington, DC 20004, Attention: Docket ID No.
EPA-HQ-OW-2014-0461. Such deliveries are only accepted during the
Docket's normal hours of operation. Please make special arrangements
for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2014-
0461. EPA's policy is to include all comments received in the public
docket without change and make them available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or
email. The http://www.regulations.gov Web site is an ``anonymous
access'' system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disc you submit.
If EPA cannot read your comment due to technical difficulties and
cannot contact you for clarification, EPA might not be able to consider
your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses. For additional information about EPA's public docket visit the
Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available (e.g., CBI or other information
whose disclosure is restricted by statute). Certain other material,
such as copyrighted material, will be publicly available only in hard
copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the
Office of Water Docket Center, EPA/DC, EPA West, Room 3334, 1301
Constitution Ave. NW., Washington, DC 20004. This Docket Facility is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744; the telephone number for the Office of Water Docket
Center is (202) 566-2426.
FOR FURTHER INFORMATION CONTACT: Fred Leutner, Standards and Health
Protection Division, Office of Science and Technology (4305T),
Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460; telephone number: (202) 566-0378; fax number:
(202) 566-0409; email address: [email protected].
SUPPLEMENTARY INFORMATION: This supplementary information section is
organized as follows:
I. General Information
A. Does this action apply to me?
B. What should I consider as I prepare my comments for EPA?
1. Resubmitting Relevant Comments From Consultations and
Listening Sessions
2. Submitting CBI
3. Tips for Preparing Your Comments
II. What is the statutory and regulatory history of the CWA TAS
provision?
A. Statutory History
B. Regulatory History
III. How did EPA interpret the CWA TAS provision when establishing
TAS regulations for CWA regulatory programs?
IV. What developments support EPA's proposed statutory
reinterpretation?
A. Relevant Congressional, Judicial and Administrative
Developments
B. EPA and Tribal Experience in Processing TAS Applications for
CWA Regulatory Programs
[[Page 47432]]
C. Request for Reinterpretation From Tribes
V. How does EPA propose to reinterpret the CWA TAS provision?
A. Statement of Proposal
B. Geographic Scope of TAS for Regulatory Programs
C. Treatment of Tribal Trust Lands
D. Tribal Criminal Enforcement Authority
E. Special Circumstances
F. Tribal Inherent Regulatory Authority
G. Existing Regulatory Requirements
VI. How would the proposed change in interpretation affect existing
EPA guidance to tribes seeking to administer CWA regulatory
programs?
VII. What are the anticipated effects of the proposed
reinterpretation?
A. Effects on Tribes That EPA Has Previously Found Eligible for
TAS
B. Effects on New Tribal Applications
C. Effects on EPA-Approved State Programs
VIII. Economic Analysis
IX. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. General Information
A. Does this action apply to me?
This action applies to tribal governments that seek eligibility to
administer regulatory programs under the Clean Water Act (CWA, or the
Act). The table below provides examples of entities that could be
affected by this action or have an interest in it.
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Examples of potentially affected or
Category interested entities
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Tribes............................ Federally recognized tribes with
reservations that could potentially
seek eligibility to administer CWA
regulatory programs, and other
interested tribes.
States............................ States adjacent to potential
applicant tribes.
Industry.......................... Industries discharging pollutants to
waters within or adjacent to
reservations of potential applicant
tribes.
Municipalities.................... Publicly owned treatment works or
other facilities discharging
pollutants to waters within or
adjacent to reservations of
potential applicant tribes.
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If you have questions regarding the effect of this proposed action
on a particular entity, please consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
B. What should I consider as I prepare my comments for EPA?
1. Resubmitting Relevant Comments from Consultations and Listening
Sessions. EPA held multiple consultations and listening sessions with
tribes and states concerning the issue addressed in this proposed
action, and considered views and comments received from these sessions
in developing this proposal. The proposed rule has evolved from the
materials EPA shared at the time. Therefore, if you submitted comments
based on these sessions and wish for EPA to consider them as part of
the public comment opportunity for this proposed action, you must
resubmit your comments to EPA in accordance with the instructions
outlined in this document.
2. Submitting CBI. Do not submit CBI information to EPA through
http://www.regulations.gov or email. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disc
that you mail to EPA, mark the outside of the disc as CBI and then
identify electronically within the disc the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. EPA will not disclose information so
marked except in accordance with procedures set forth in 40 Code of
Federal Regulations (CFR) part 2.
3. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the proposed action by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible.
Submit your comments by the date shown in the DATES
section of this notice.
II. What is the statutory and regulatory history of the CWA TAS
provision?
A. Statutory History
Congress added CWA section 518, 33 U.S.C. 1377, as part of
amendments made in 1987. Section 518(e) authorizes EPA to treat
eligible Indian tribes in the same manner as it treats states for a
variety of purposes, including administering each of the principal CWA
regulatory programs and receiving grants under several CWA funding
authorities. Section 518(e) is commonly known as the ``TAS'' provision,
for treatment in a similar manner as a state.
Section 518(e) establishes eligibility criteria for TAS, including
requirements that the tribe have a governing body carrying out
substantial governmental duties and powers; that the functions to be
exercised by the tribe pertain to the management and protection of
water resources within the borders of an Indian reservation; and that
the tribe be reasonably expected to be capable of carrying out the
functions to be exercised in a manner consistent with the terms and
purposes of the Act and applicable regulations. Section 518(e) also
requires EPA to promulgate regulations specifying the TAS process for
applicant tribes. See section II.B.
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 defines ``federal Indian reservation'' to mean all land
within the limits of any reservation under the jurisdiction of the
United States Government, notwithstanding the issuance of any patent,
and including rights-of-way running through the reservation.
[[Page 47433]]
B. Regulatory History
Pursuant to section 518(e), EPA promulgated several final
regulations establishing TAS criteria and procedures for Indian tribes
interested in administering programs under the Act. The relevant
regulations addressing TAS requirements for the principal CWA
regulatory programs are:
40 CFR 131.8 for section 303(c) water quality standards
(WQS). Final rule published December 12, 1991 (56 FR 64876); proposed
rule published September 22, 1989 (54 FR 39098). Referred to hereafter
as the ``1991 WQS TAS rule'' or ``1991 TAS rule'';
40 CFR 131.4(c) for section 401 water quality
certification, published in the 1991 WQS TAS rule;
40 CFR 123.31-34 for section 402 National Pollutant
Discharge Elimination System (NPDES) permitting and other provisions,
and 40 CFR 501.22-25 for the state sewage sludge management program.
Final rule published December 22, 1993 (58 FR 67966); proposed rule
published March 10, 1992 (57 FR 8522); and
40 CFR 233.60-62 for section 404 dredge or fill
permitting. Final rule published February 11, 1993 (58 FR 8172);
proposed rule published November 29, 1989 (54 FR 49180).
In 1994, EPA amended the above regulations to simplify the TAS
process and eliminate unnecessary and duplicative procedural
requirements. See 59 FR 64339 (December 14, 1994) (the ``Simplification
Rule''). For example, the Simplification Rule eliminated the need for a
tribe to prequalify for TAS before applying for section 402 and section
404 permitting programs. Instead, the rule provided that a tribe would
establish its TAS eligibility at the program approval stage, subject to
EPA's notice and comment procedures already established for state
program approvals in 40 CFR parts 123 and 233. The rule retained the
prequalification requirements (including local notice and comment
procedures) for section 303(c) WQS and section 401 water quality
certifications. Id.; see also, 40 CFR 131.8(c)(2), (3).\1\ The TAS
regulations for CWA regulatory programs have remained intact since
promulgation of the Simplification Rule.
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\1\ Under the CWA and EPA's regulations, tribes can apply for
TAS under CWA section 518 for the purpose of administering WQS and
simultaneously submit actual standards for EPA review under section
303(c). Although they can proceed together, a determination of TAS
eligibility and an approval of actual water quality standards are
two distinct actions.
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This proposed action would not address or affect the TAS
requirements or review process for tribes to receive grants.\2\ The
receipt of grant funding does not involve any exercise of regulatory
authority. Therefore, a determination of TAS eligibility solely for
funding purposes does not, under existing regulations, require an
analysis or determination regarding an applicant tribe's regulatory
authority.
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\2\ EPA has promulgated regulations governing the TAS
application and review requirements for CWA grant funding programs.
See, e.g., 40 CFR 35.580-588 (CWA section 106 water pollution
control funding); 40 CFR 35.600-615 (CWA section 104 water quality
cooperative agreements and wetlands development funding); 40 CFR
35.630-638 (CWA section 319 nonpoint source management grants).
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III. How did EPA interpret the CWA TAS provision when establishing TAS
regulations for CWA regulatory programs?
In the 1991 WQS TAS rule, which addressed TAS for the WQS and
certification programs, EPA explained that tribes must meet four
criteria to be approved for TAS eligibility. Specifically, an applicant
tribe must: (1) Be federally recognized, (2) carry out substantial
governmental duties and powers over a ``Federal Indian reservation'' as
defined in CWA section 518(h)(1), (3) have appropriate authority to
regulate the quality of reservation waters, and (4) be reasonably
expected to be capable of administering the CWA program. 54 FR at
39101.
The third of the criteria--regulatory authority--is the sole focus
of the proposed change in statutory interpretation. This proposal would
not affect the other TAS criteria or tribal application requirements
relating to those criteria.
With regard to regulatory authority,\3\ EPA carefully analyzed
section 518 and the then-current state of judicial precedent to assess
whether Congress had intended to delegate regulatory authority to
eligible Indian tribes to administer CWA regulatory programs throughout
their entire reservations, including over lands owned by nonmembers of
the tribe within a reservation. 56 FR at 64879-81. EPA noted
significant support in the CWA and its legislative history for the
conclusion that Congress had in fact delegated such authority. Id.
Section 518(e) requires only that the functions to be exercised by the
applicant Indian tribe pertain to the management and protection of
water resources that are ``within the borders of an Indian
reservation.'' Section 518(h)(1) expressly defines Indian reservations
as ``all land within the limits of any Indian reservation . . .
notwithstanding the issuance of any patent, and including rights-of-way
running through the reservation.''
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\3\ Tribal ``regulatory authority'' in this proposal refers to
civil regulatory authority. See section V.D. for a discussion of
tribal criminal enforcement authority.
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EPA specifically noted the import of language in Brendale v.
Confederated Tribes and Bands of the Yakima Nation, 492 U.S. 408, 428
(1989), where Justice White (with three additional Justices joining)
identified CWA sections 518(e) and (h)(1) as an express delegation of
authority to tribes, including authority over the activities of non-
tribal members on their lands within a reservation. 56 FR at 64879-80.
EPA agreed with commenters on the proposed rule that Justice White's
opinion indicated that at least four Supreme Court Justices would
interpret the plain language of section 518 as an express delegation of
regulatory authority. Id.
At the same time EPA recognized that Justice White's opinion was
not a majority opinion of the Supreme Court (the other five Justices
did not opine on the issue) and that the interpretation of CWA section
518 was not actually before the Court in Brendale. Id. EPA also noted
that while there were significant statements in the legislative history
of section 518 supporting congressional intent to delegate authority to
eligible tribes, the legislative history standing alone was
insufficiently clear to confirm definitively such intent. Id. at 64879-
81. EPA was also mindful that three members of Congress had submitted
comments in connection with the proposed TAS rule stating their
respective views that Congress did not intend to expand the scope of
tribal authority over non-Indians on the reservation by passage of
section 518. Id. Although EPA observed that subsequent statements by
members of Congress must be treated cautiously and do not supplement
the statute's legislative history, EPA carefully considered the
commenters' views in forming its initial approach to tribal regulatory
authority under the CWA.
Ultimately, EPA took a cautious approach in the 1991 TAS rule and
stated it would await further congressional or judicial guidance on the
extent to which section 518 is properly interpreted as an express
congressional delegation of authority. Id. at 64877-81. EPA
specifically stated the Agency's interpretation that in section 518,
Congress had expressed a preference for tribal regulation of surface
water quality on reservations to ensure compliance with the goals of
the CWA. Id. at 64878-79. However, until such time as EPA revisited the
issue, the Agency determined it would require
[[Page 47434]]
applicant Indian tribes to demonstrate, on a case-by-case basis, their
inherent authority under existing principles of federal Indian law to
regulate activities under the CWA. Id. at 64880-81.
EPA's approach required an applicant tribe to demonstrate its
inherent tribal authority over the activities of non-tribal members on
lands they own in fee within a reservation (``nonmember fee lands'')
under the principles of Montana v. United States, 450 U.S. 544 (1981),
and its progeny. Montana held that absent a federal grant of authority,
tribes generally lack inherent jurisdiction over nonmember activities
on nonmember fee lands, but retain inherent civil jurisdiction over
nonmember activities within the reservation where (i) nonmembers enter
into ``consensual relationships with the tribe or its members, through
commercial dealing, contracts, leases, or other arrangements'' or (ii)
``. . . [nonmember] conduct threatens or has some direct effect on the
political integrity, the economic security, or the health or welfare of
the tribe.'' Id. at 565-566; the ``Montana test.''
EPA noted that in applying the second prong of the Montana test and
assessing the impacts of nonmember activities on a tribe, EPA will rely
upon an operating rule that evaluates whether the potential impacts of
regulated activities on the tribe are serious and substantial. 56 FR at
64878-79. EPA recognized that the analysis of whether the Montana test
is met in a particular situation depends on the specific circumstances
presented by the tribe's application. Id. at 64878. Thus, EPA's
approach to the second prong of the Montana test involves a fact-
specific inquiry to determine whether the tribe has shown that existing
and potential nonmember activities within the reservation affecting
water quality have or could have serious and substantial direct impacts
on the political integrity, economic security, or health or welfare of
the tribe.
EPA adopted an identical approach and reasoning regarding tribal
inherent regulatory authority in its subsequent TAS regulations (see
list of regulations in section II.B). In these rules, EPA restated that
the question of whether section 518 delegated authority to tribes to
administer CWA regulatory programs on their reservations was unresolved
and remained subject to additional consideration in light of subsequent
congressional or judicial guidance. See, e.g., 58 FR at 8173-76; 58 FR
at 67971, 67975-76.
IV. What developments support EPA's proposed statutory
reinterpretation?
A. Relevant Congressional, Judicial and Administrative Developments
EPA has taken final action approving TAS for CWA regulatory
programs for 50 tribes since the 1991 WQS TAS rule.\4\ Three of those
decisions were challenged in judicial actions. The last challenge
concluded in 2002. In each of the cases, the reviewing court upheld
EPA's determination with respect to the applicant tribe's inherent
authority to regulate under the CWA. Wisconsin v. EPA, 266 F.3d 741
(7th Cir. 2001), cert. denied, 535 U.S. 1121 (2002) (Sokaogon Chippewa
Community); Montana v. EPA, 137 F.3d 1135 (9th Cir.), cert. denied, 525
U.S. 921 (1998) (Confederated Salish and Kootenai Tribes of the
Flathead Reservation); Montana v. EPA, 141 F.Supp.2d 1259 (D. Mont.
1998) (Assiniboine and Sioux Tribes of the Fort Peck Reservation).\5\
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\4\ The site http://water.epa.gov/scitech/swguidance/standards/wqslibrary/approvtable.cfm provides a list of tribes approved for
section 303(c) water quality standards and section 401 water quality
certification. To date, EPA has not approved TAS for any tribe for
CWA section 402 or section 404 permitting.
\5\ EPA was also upheld in the only case challenging the
Agency's approval of actual tribal water quality standards under CWA
section 303(c) (which is a distinct action from EPA's approval of
tribal TAS eligibility under section 518). City of Albuquerque v.
Browner, 97 F.3d 415 (10th Cir. 1996), cert. denied, 522 U.S. 965
(1997) (water quality standards of Isleta Pueblo).
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As noted in section III's discussion of the 1991 TAS rule, EPA was
mindful of the statement in Brendale indicating that Justice White and
the three other Supreme Court Justices joining his plurality opinion
viewed CWA section 518 as an express congressional delegation of
authority to Indian tribes. 56 FR at 64889 (citing Brendale, 492 U.S.
at 428). EPA also recognized, however, that the statement regarding
section 518 was not necessary to the plurality's decision; nor was it
based on an analysis of the relevant CWA legislative history, which, as
EPA noted, was inconclusive on the issue. Id. EPA thus opted to proceed
with a cautious initial approach to tribal regulatory authority under
the CWA, and await further developments that could guide the proper
interpretation of section 518.
Since the 1991 TAS rule, there have been significant developments
supporting the interpretive change EPA proposes. Notably, the first
court to review a challenge to an EPA CWA TAS approval expressed the
view that the statutory language of section 518 indicated plainly that
Congress intended to delegate authority to Indian tribes to regulate
their entire reservations, including regulation of non-Indians on fee
lands within a reservation. Montana v. EPA, 941 F. Supp. 945, 951-52
(D. Mont. 1996), aff'd, 137 F.3d 1135 (9th Cir.), cert. denied, 525
U.S. 921 (1998). In that case, the applicant tribe, participating as
amicus, argued that the definition of ``federal Indian reservation'' in
CWA section 518(h)(1)--which expressly includes all land within the
limits of a reservation notwithstanding the issuance of any patent--
combined with the bare requirement of section 518(e) that the functions
to be exercised by the applicant tribe pertain to reservation water
resources, demonstrates that section 518 provides tribes with delegated
regulatory authority over their entire reservations, including over
non-Indian reservation lands. Id. Because EPA premised its approval of
the TAS application at issue upon a showing of inherent tribal
authority, it was unnecessary for the district court to reach the
delegation issue as part of its holding in the case. Nonetheless, the
court readily acknowledged that section 518 is properly interpreted as
an express congressional delegation of authority to Indian tribes over
their entire reservations. The court noted that the legislative history
might be ambiguous, although only tangentially so, since the bulk of
the legislative history relates to the entirely separate issue of
whether section 518(e) pertains to non-Indian water quantity rights,
which it does not. Id. The court observed the established principle
that Congress may delegate authority to Indian tribes--per United
States v. Mazurie, 419 U.S. 544 (1975)--and commented favorably on
Justice White's statement regarding section 518 in Brendale. Id. The
court also noted that a congressional delegation of authority to tribes
over their entire reservations ``comports with common sense'' to avoid
a result where an interspersed mixing of tribal and state WQS could
apply on a reservation depending on whether the waters traverse or
bound tribal or non-Indian reservation land. Id. Having thus analyzed
CWA section 518, the court concluded--albeit in dicta--that Congress
had intended to delegate such authority to Indian tribes over their
entire reservations.
The TAS provision of a separate statute--the Clean Air Act (CAA)--
provides additional relevant insight into congressional intent.
Congress added the CAA TAS provision--section 301(d)--to the statute in
1990, only three years after it enacted CWA section 518. Although CAA
section 301(d) pre-dates EPA's 1991 CWA TAS rule, it was
[[Page 47435]]
not until 1998 that EPA promulgated its regulations interpreting the
CAA TAS provision as an express congressional delegation of authority
to eligible Indian tribes. The U.S. Court of Appeals for the DC Circuit
upheld that interpretation two years later. Arizona Public Service Co.
v. EPA, 211 F.3d 1280 (D.C. Cir. 2000) (``APS''), cert. denied, 532
U.S. 970 (2001). Viewed in light of the court's careful review, the CAA
TAS provision provides useful guidance regarding Congress'
understanding of the importance of uniform tribal regulation of mobile
environmental pollutants within reservations. Further, that
understanding can fairly be traced back to the 1987 enactment of CWA
section 518. Each statute must, of course, be viewed in light of its
own language and history. Relevant aspects of EPA's interpretation of
the CAA TAS provision are described below.
EPA finalized its regulations implementing CAA section 301(d) in
1998. 40 CFR part 49; 63 FR 7254 (February 12, 1998) (the ``CAA Tribal
Authority Rule''). The CAA TAS provision, combined with the definition
of Indian tribe in CAA section 302(r), established the same basic TAS
eligibility criteria for CAA purposes that apply under the CWA: i.e.,
federal recognition, tribal government carrying out substantial duties
and powers, jurisdiction, and capability. With regard to jurisdiction,
EPA carefully analyzed the language and legislative history of the
relevant portion of the CAA TAS provision, CAA section 301(d)(2)(B),
and concluded that Congress had intended to delegate authority to
eligible Indian tribes to administer CAA regulatory programs over their
entire reservations irrespective of land ownership--e.g., including
over nonmember fee lands within the reservation. 63 FR at 7254-57. EPA
determined that the language of the provision distinguished between
reservation and non-reservation areas over which tribes could seek TAS
eligibility and plainly indicated Congress' intent that reservations
will be under tribal jurisdiction. Id. By contrast, for non-reservation
areas tribes would need to demonstrate their inherent authority to
regulate under principles of federal Indian law. Id.
EPA noted at that time important similarities between the CAA and
CWA TAS provisions. Most notably, the tribal provisions of both
statutes expressly provided eligibility for tribal programs that
pertain to the management and protection of environmental resources
(i.e., air and water, respectively) located on Indian reservations. Id.
at 7256. For instance, CAA section 301(d) provides for tribal
regulation of air resources ``within the exterior boundaries of the
reservation'' without any requirement for a demonstration by applicant
tribes of separate authority over such reservation areas. CAA section
301(d)(2)(B). Similarly, CWA section 518 provides eligibility for
tribal programs covering water resources ``within the borders of an
Indian reservation'' and expressly defines Indian reservations to
include all land within the reservation notwithstanding the issuance of
any patent and including rights-of-way. CWA sections 518(e)(2), (h)(1).
By their plain terms, both statutes thus treat reservation lands and
resources the same way and set such areas aside for tribal programs. At
the time EPA promulgated the CAA Tribal Authority Rule, however, EPA
viewed the CAA--which also contained other provisions addressing tribal
roles--and its legislative history as more conclusively demonstrating
congressional intent to delegate authority to eligible tribes over
their reservations. Id. EPA recognized that this resulted in different
approaches to two similar TAS provisions and reiterated that the
question remained as to whether the CWA provision is also an express
delegation of authority to eligible tribes. Id. EPA also cited to the
district court decision in Montana v. EPA, which, as noted above,
concluded that CWA section 518 plainly appears to delegate such
authority to Indian tribes. Id.
Several parties petitioned for judicial review of the CAA Tribal
Authority Rule and challenged whether CAA section 301(d) could be
properly interpreted as a delegation of authority by Congress to
eligible Indian tribes. APS, 211 F.3d at 1287-92. The D.C. Circuit
carefully analyzed CAA section 301(d), the relevant legislative
history, and the judicial precedent on delegations of authority to
Indian tribes and concluded that EPA's interpretation comported with
congressional intent. Id. The court acknowledged the similarities
between the CAA and CWA TAS provisions, as well as EPA's different
approach under the CWA. Id. at 1291-92. However, the court also noted
with significance that EPA's approach under the CWA had not been
subjected to judicial review and observed favorably the district
court's statements in Montana v. EPA that section 518 plainly indicates
congressional intent to delegate authority to Indian tribes. Id.
Ultimately, the D.C. Circuit recognized that EPA had taken a cautious
approach under the CWA but that there was no reason EPA must do so
again under the CAA. Id.
A dissenting judge in the APS case disagreed that CAA section
301(d)(2)(B) expressed congressional intent to delegate authority to
tribes over their reservations. Id. at 1301-05. Notably, the dissent's
view was predicated largely on the absence in section 301(d)(2)(B) of
language explicitly describing the reservation areas over which tribes
would exercise CAA jurisdiction as including all reservation lands
notwithstanding the issuance of any patent and including rights-of-way
running through the reservation (emphasis added). Id. The dissent
viewed this language as critical to an expression of congressional
intent that tribes are to exercise delegated authority over all
reservation lands, including lands owned by nonmembers of the tribes.
Id. And in the absence of such language--which the dissent referred to
as ``the gold standard for such delegations''--the dissent did not view
CAA section 301(d)(2)(B) as expressing Congress' intent to relieve
tribes of the need to demonstrate their inherent authority to regulate
under the CAA, including a demonstration of inherent authority over
nonmember activities on fee lands under the Supreme Court's Montana
test. Id. at 1303-04.\6\ Notably, the dissent observed that the key
``notwithstanding'' language is, in fact, included in the relevant
tribal provisions of the CWA--i.e., in the definition of ``federal
Indian reservation'' in CWA section 518(h)(1). Id. at 1302 (referencing
Brendale, 492 U.S. at 428). The dissent noted that in spite of the
statement in Brendale, EPA had determined not to treat CWA section 518
as a congressional delegation; however, the dissent also observed that
no court had yet resolved the issue. Id.
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\6\ The dissent in APS also concluded that a separate provision
of the CAA--section 110(o)--expressly delegates authority to
eligible Indian tribes over their entire reservations for the
specific CAA program established in that provision. Id. at 1301-02.
Section 110(o) includes the key language cited by the dissent as
indicative of express congressional delegations of authority to
tribes over their reservations. Id.
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As the D.C. Circuit stated in APS, no court has yet reviewed EPA's
interpretation of tribal regulation under the CWA on the question of
whether CWA section 518 constitutes an express delegation of authority
from Congress to eligible Indian tribes to regulate water resources
throughout their reservations. Importantly, members of the three courts
that have considered the issue have favorably viewed such an
interpretation: The U.S. Supreme Court
[[Page 47436]]
in Brendale, the federal district court in Montana v. EPA, and the D.C.
Circuit in APS.
In light of these developments, as well as EPA's experience
administratively interpreting and implementing the CAA TAS provision,
it is appropriate to revisit and revise EPA's approach to TAS under the
CWA. In the preambles to the CWA TAS regulations from the 1990s, EPA
discussed the possibility of reinterpreting CWA section 518 as an
express congressional delegation of authority to tribes based on
subsequent congressional or judicial guidance. The proposed action
would accomplish such a reinterpretation.
B. EPA and Tribal Experience in Processing TAS Applications for CWA
Regulatory Programs
Based on EPA's experience to date, the TAS application process has
become significantly more burdensome than EPA anticipated in 1991. Many
authorized tribes have informed EPA that the demonstration of inherent
tribal authority, including application of the Montana test,
constituted the single greatest administrative burden in their
application processes.
In the 1991 TAS rule, EPA expressed its expert view that given the
importance of surface water to tribes and their members, the serious
nature of water pollution impacts, and the mobility of pollutants in
water, applicant Indian tribes would generally be able to demonstrate
inherent regulatory authority to set WQS for reservation waters,
including as applied to nonmembers on fee lands under federal Indian
law principles. Id. at 64877-79. In light of the Agency's generalized
findings regarding the relationship of water quality to tribal health
and welfare, EPA noted that a tribe could likely meet the Montana test
by making a relatively simple factual showing that (1) there are waters
within the subject reservation used by the tribe or its members, (2)
the waters are subject to protection under the CWA, and (3) impairment
of the waters by nonmember activities on fee lands would have serious
and substantial effects on tribal health and welfare. Id. at 64879.
EPA thus anticipated in the early 1990s that applicant tribes would
face a relatively simple initial burden of supplying basic facts to
demonstrate that they retain requisite inherent authority to regulate
under the CWA--including regulation of nonmember activities on fee
lands--under established federal Indian law principles. Id.
Unfortunately, EPA's expectations have not, as a general matter,
been realized. Although each TAS application has varied according to
the particular facts and circumstances of the applicant tribe and its
reservation, the general experience confirms that demonstrations of
inherent regulatory authority continue to impose unintended
administrative hurdles on applicant tribes and to require substantial
commitments of limited tribal and federal resources. In particular, the
demonstration of inherent authority over nonmember activities on the
reservation under the so-called Montana test has created the most
significant and widespread burden and at the same time provides no
information necessary for EPA's oversight of the regulatory program.
Tribes have repeatedly expressed their concern that the demonstration
of inherent authority on a case-by-case basis is challenging, time
consuming and costly. EPA's information on the 50 tribes that it has
found eligible to administer WQS and section 401 certifications
indicates that tribal applications for reservations with nonmember fee
lands, which require an analysis of tribal inherent authority under
Montana, took 1.6 years longer to be approved, on average, than
applications for reservations without such lands.
The elimination of such unintended administrative burdens does not,
in itself, provide a legal rationale to alter EPA's interpretation of
section 518. However, streamlining a TAS process that has become
unnecessarily restrictive and burdensome does offer a strong policy
basis for the Agency to take a careful second look at that provision
and to consider--as it contemplated as early as 1991--whether
intervening events have shed additional light on the appropriate
statutory interpretation. Eliminating such unnecessary burdens is
consistent with longstanding EPA and Executive policy to support tribal
self-determination and promote and streamline tribal involvement in
managing and regulating their lands and environments. See, e.g.,
Executive Order 13175 (65 FR 67249, November 9, 2000); Presidential
Memorandum: Government-to-Government Relations with Native American
Tribal Governments (59 FR 22951, April 29, 1994); EPA Policy for the
Administration of Environmental Programs on Indian Reservations
(November 8, 1984).
As explained in section III, EPA has long interpreted the CWA as
expressing Congress' preference for tribal regulation of reservation
surface water quality. See, e.g., 56 FR at 64878. As explained in
section IV, developments subsequent to the 1991 TAS rule definitively
confirm that section 518 includes an express delegation of authority by
Congress to eligible tribes to regulate water resources under the CWA
throughout their entire reservations.
C. Request for Reinterpretation from Tribes
In April 2013, the National Tribal Water Council \7\ expressed its
concern in a document submitted to EPA's Office of Water \8\ that
``[c]urrently, EPA does not treat tribes and states in the same manner
even though it has the authority to do so under section 518(e)(2) of
the CWA.'' The Council further stated that ``reliance on a
jurisdictional showing before granting tribal regulatory authority has
prevented many tribes from establishing federally approved WQS for the
waters of their reservations. This has left a significant portion of
Native American communities without the protection of the CWA to
safeguard their water resources.'' The Council encouraged EPA to
consider reinterpreting the CWA TAS provision as an express delegation
of congressional authority as it did with the similar provision of the
CAA and to remove the requirement for tribes to show their inherent
authority.\9\
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\7\ For more information on the National Tribal Water Council,
see http://nationaltribalwatercouncil.org/.
\8\ Equal Treatment for Tribes in Seeking Eligibility under EPA
Regulatory Programs, unsigned undated document, National Tribal
Water Council, provided to the Office of Water in April 2013.
Available at the above site.
\9\ In addition to demonstrating their inherent regulatory
authority, a number of tribes that have previously applied for TAS
to administer CWA regulatory programs have asserted in their
applications their view that CWA section 518 constitutes an express
delegation of authority from Congress. Although EPA has not
previously relied on that approach in its TAS decisions, it is
noteworthy that tribes have expressed this legal interpretation in
prior applications.
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V. How does EPA propose to reinterpret the CWA TAS provision?
A. Statement of Proposal
Based on the analysis in sections III and IV above, EPA proposes to
revise its interpretation of CWA section 518 and conclude definitively
that Congress expressly delegated authority to Indian tribes to
administer CWA regulatory programs over their entire reservations,
including over nonmember activities on fee lands within the reservation
of the applicant tribe, subject to the eligibility requirements in
section 518. In doing so, EPA thus proposes to exercise the
[[Page 47437]]
authority entrusted to it by Congress to implement the CWA TAS
provision.
EPA's revised interpretation is, most importantly, expressed in the
language of section 518. Section 518(e)(2) requires only that the
functions to be exercised by the applicant Indian tribe pertain to the
management and protection of water resources ``within the borders of an
Indian reservation.'' Section 518(h)(1) then defines the term ``federal
Indian reservation'' to include all lands within the limits of any
Indian reservation notwithstanding the issuance of any patent, and
including rights-of-way running through the reservation. That
definition is precisely the same language that the dissent in APS
stated is the ``gold standard'' for an express congressional delegation
of regulatory authority to tribes over their entire reservations. APS,
211 F3.d at 1302-03. It is also the language that the U.S. Supreme
Court reviewed in finding congressional delegations to tribes in other
contexts. United States v. Mazurie, 419 U.S. 544 (1975) (delegation of
authority to tribes regarding regulation of liquor); Rice v. Rehner,
463 U.S. 713 (1983) (same). Although the legislative history of section
518 has, of course, remained unaltered since 1987, the plain language
of the statute and the above-described developments provide ample
support for the revised interpretation.
The effect of this proposal would be to relieve tribes of the need
to demonstrate their inherent authority when they apply for TAS to
administer CWA regulatory programs. In particular, this proposal would
eliminate any need to demonstrate that the applicant tribe retains
inherent authority to regulate the conduct of nonmembers of the tribe
on fee lands under the test established by the Supreme Court in
Montana. Instead, applicant tribes would be able to rely on the
congressional delegation of authority in section 518 as the source of
their authority to regulate their entire reservations under the CWA,
without distinguishing among various categories of on-reservation land.
As EPA explained in connection with the CAA, such a territorial
approach that treats Indian reservations uniformly promotes rational,
sound management of environmental resources that might be subjected to
mobile pollutants that disperse over wide areas without regard to land
ownership. See 59 FR at 43959. As specifically recognized by the
district court in Montana v. EPA, the same holds true for regulation
under the CWA. Montana, 941 F. Supp. at 952.
B. Geographic Scope of TAS for Regulatory Programs
EPA's proposal would not affect--either by expanding or
contracting--the geographic scope of potential tribal TAS eligibility
under the CWA. Under section 518, tribes can only obtain TAS status
over waters within the borders of their reservations. See, e.g., 56 FR
at 64881-82. Thus, under any approach to tribal regulatory authority
under the CWA, tribal TAS eligibility under the CWA is limited to
Indian reservations. Tribes can seek TAS with respect to water
resources pertaining to any type of on-reservation land, including, for
example, reservation land held in trust by the United States for a
tribe, reservation land owned by or held in trust for a member of the
tribe, and reservation land owned by non-tribal members. Conversely,
tribes cannot obtain TAS under the CWA for water resources pertaining
to any non-reservation Indian country \10\ or any other type of non-
reservation land.\11\ The proposed change in interpretation would not
alter that basic limitation of TAS under the CWA.
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\10\ Indian country is defined at 18 U.S.C. 1151 as: (a) 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; (b) all dependent Indian communities within the
borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or
without the limits of a state; and (c) all Indian allotments, the
Indian titles to which have not been extinguished, including rights-
of-way running through the same. Indian reservations are thus a
subset of the broader geographic area that comprises Indian country
as a whole.
\11\ Many tribes have rights to hunt, fish, gather resources, or
perform other activities in areas outside of their reservations. To
the extent the lands on which these rights are exercised are not
Indian reservation lands as defined at 18 U.S.C. 1151(a), tribes
cannot obtain TAS under the CWA for water resources pertaining to
such lands.
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C. Treatment of Tribal Trust Lands
The proposed change in statutory interpretation would not alter the
current approach to tribal trust lands. Indian reservations include
trust lands validly set aside for Indian tribes even if such lands have
not formally been designated as an Indian reservation. Many named
Indian reservations were established through federal treaties with
tribes, federal statutes, or Executive Orders of the President. Such
reservations are often referred to as formal Indian reservations. Many
tribes have lands that the United States holds in trust for the tribes,
but that have not been formally designated as reservations. As EPA has
consistently stated, and consistent with relevant judicial precedent,
such tribal trust lands are informal reservations and thus have the
same status as formal reservations for purposes of the Agency's
programs. See, e.g., 56 FR at 64881; 63 FR at 7257-58; APS, 211 F.3d at
1292-94. For CWA purposes, tribes have thus always been able to seek
TAS over such trust lands, and would continue to be able to do so under
this proposal. Several tribes have done so previously.
D. Tribal Criminal Enforcement Authority
EPA's proposed change in statutory interpretation would not affect
any existing limitations on tribal criminal enforcement authority. This
proposal relates solely to applicant Indian tribes' civil regulatory
authority to administer CWA regulatory programs on their reservations;
it does not address or in any way alter the scope of tribal criminal
enforcement jurisdiction. EPA has previously established regulations
addressing implementation of criminal enforcement authority on Indian
reservations for those CWA programs that include potential exercises of
such authority. See, e.g., 40 CFR 123.34, 233.41(f). These regulations
provide that the federal government will retain primary criminal
enforcement responsibility in those situations where eligible tribes do
not assert or are precluded from exercising such authority.
E. Special Circumstances
There could be rare instances where special circumstances limit or
preclude a particular tribe's ability to accept or effectuate the
congressional delegation of authority over its reservation. For
example, there could be a separate federal statute establishing unique
jurisdictional arrangements for a specific state or a specific
reservation that could affect a tribe's ability to exercise authority
under the CWA. It is also possible that provisions in particular
treaties or tribal constitutions could limit a tribe's ability to
exercise relevant authority.\12\
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\12\ EPA takes no position in this proposal regarding whether
any particular tribe or Indian reservation is subject to any
potential impediment relating to the effectuation of the
congressional delegation of regulatory authority or how the CWA can
be interpreted vis-[agrave]-vis the alleged source of any such
impediment. Any such issue would need to be addressed on a case-by-
case basis and with the benefit of a full record of relevant
information that would be developed during the processing of a
particular TAS application. To the extent EPA is ever called upon to
make a decision regarding this type of issue, such a decision would
be rendered in the context of EPA's final action on a specific TAS
application, and any judicial review of that decision would occur in
that context.
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[[Page 47438]]
The application requirements of existing CWA TAS regulations
already require tribes to submit a statement of their legal counsel (or
equivalent official) describing the basis for their assertion of
authority. The statement can include copies of documents such as tribal
constitutions, by-laws, charters, executive orders, codes, ordinances,
resolutions, etc. See 40 CFR 131.8(b)(3)(ii); 123.32(c); 233.61(c)(2).
If EPA finalizes this proposed action, the requirement for a legal
counsel's statement would continue to apply and would ensure that
applicant tribes appropriately rely on the congressional delegation of
authority and provide any additional information that could be relevant
to their ability to accept or effectuate the delegated authority. As
described below in section V.G., existing CWA TAS and program
regulations will also continue to provide appropriate opportunities for
other potentially interested entities--such as states or other Indian
tribes adjacent to an applicant tribe--to comment on an applicant
tribe's assertion of authority and, among other things, inform EPA of
any special circumstances that they believe could affect a tribe's
ability to regulate under the CWA.
Section 10211(b) of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act of 2005 (``SAFETEA''), Public Law 109-59, 119
Stat. 1144 (August 10, 2005) established a unique TAS requirement with
respect to Indian tribes located in the State of Oklahoma. Under
section 10211(b) of SAFETEA, tribes in Oklahoma seeking TAS under a
statute administered by the EPA for the purpose of administering an
environmental regulatory program must, in addition to meeting
applicable TAS requirements under the EPA statute, enter into a
cooperative agreement with the state that is subject to EPA approval
and that provides for the tribe and state to jointly plan and
administer program requirements. This requirement of SAFETEA exists
apart from, and in addition to, existing TAS criteria, including the
TAS criteria set forth in section 518 of the CWA. EPA's proposal
relates solely to the interpretation of an existing CWA TAS
requirement; it would thus have no effect on the separate TAS
requirement of section 10211(b) of SAFETEA.
F. Tribal Inherent Regulatory Authority
EPA's proposed change in statutory interpretation is not intended
as any comment on the extent of tribal inherent regulatory authority.
As the Agency clearly articulated in the TAS rules identified in
section II.B, the importance of water resources to tribes, the serious
potential impacts of water pollution on tribes' uses of their waters,
and the mobility of pollutants in water all strongly support tribes'
ability to demonstrate their inherent authority to regulate surface
water quality on their reservations, including the authority to
regulate nonmember conduct on fee lands under the Supreme Court's test
established in Montana. Consistent with its 1991 interpretation of
section 518, EPA concluded that each of the 50 tribes it has approved
for TAS for CWA regulatory programs has demonstrated its inherent
regulatory authority and has demonstrated that the functions it sought
to exercise pertain to the management and protection of reservation
water resources. All Agency CWA TAS determinations challenged in court
have been upheld.
The proposed change in interpretation would not affect these prior
TAS approvals. The proposed change would, however, modify EPA's
approach going forward to be consistent with Congress' intent to
delegate authority to eligible tribes. It would relieve tribes of the
administrative burden associated with demonstrating their inherent
regulatory authority in the TAS application process. The change in
interpretation does not, however, alter EPA's prior views regarding the
extent of tribal inherent regulatory authority.\13\
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\13\ In promulgating the CAA Tribal Authority Rule, the EPA
similarly noted its expert view that even absent a direct delegation
of authority from Congress, tribes would very likely have inherent
authority over all activities within Indian reservation boundaries
that are subject to CAA regulation. 59 FR at 43958 n.5.
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G. Existing Regulatory Requirements
Because the proposed change in statutory interpretation is
consistent with existing CWA TAS regulatory text, EPA's proposal would
not revise any regulatory text in the Code of Federal Regulations.
If EPA finalizes its change in interpretation, tribes would be able
to rely on the congressional delegation of authority in section 518 as
the source of their authority to regulate water quality on their
reservations. Aside from any special circumstances (see section V.E.),
the main focus in determining the extent of an applicant tribe's
jurisdiction for CWA regulatory purposes would then be identifying the
geographic boundaries of the Indian reservation area (whether a formal
or informal reservation) over which the congressionally delegated
authority would apply. EPA's existing CWA TAS regulations already
provide for applicant tribes to submit a map or legal description of
the reservation area that is the subject of the TAS application. See 40
CFR 131.8(b)(3)(i); 123.32(c); 233.61(c)(1); 501.23(c). These
provisions would continue to apply and would ensure that each tribe
applying for a CWA regulatory program submits information adequate to
demonstrate the location and boundaries of the subject reservation.
The existing regulations provide appropriate opportunities for
potentially interested entities to provide input to EPA regarding any
jurisdictional issues associated with a tribe's TAS application. As
mentioned in section II.B. above, EPA's TAS regulations for the CWA
section 303(c) WQS program include a process for notice to appropriate
governmental entities--states, tribes and other federal entities
located contiguous to the reservation of the applicant tribe--and
provide an opportunity for such entities to provide comment on the
applicant tribe's assertion of authority. EPA makes such notice broad
enough that other potentially interested entities can participate in
the process. 56 FR at 64884. For example, EPA routinely publishes
notice of tribal TAS applications for the WQS program in relevant local
newspapers covering the area of the subject reservation and in
electronic media.
EPA's TAS regulations for the CWA section 402 and 404 permitting
programs require an analysis of regulatory authority as part of the
program approval process under 40 CFR parts 123 and 233 that are
described in section II.B. As described in the Simplification Rule, EPA
makes its decisions to approve or disapprove those programs as part of
a public notice and comment process conducted in the Federal Register.
59 FR at 64340.
Thus, the regulations would continue to afford appropriate
opportunities for interested parties to comment on tribal assertions of
authority for all CWA regulatory programs. Because the principal
jurisdictional issue under the proposed reinterpretation would be the
boundaries of the subject reservation, any comments on an applicant
tribe's assertion of authority would likely focus on the reservation
boundaries.\14\
[[Page 47439]]
However, to the extent a particular application presents a separate
jurisdictional issue, the notice-and-comment process that exists in
each CWA TAS regulation would also be available to raise such an issue
to EPA for due consideration.
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\14\ Focusing the jurisdictional inquiry on the geographic scope
of a tribe's TAS application--i.e., the boundary of the reservation
area that a tribe seeks to regulate--would impose no additional
burden on entities that wish to comment on an applicant tribe's
assertion of authority. Under any approach to tribal regulatory
authority, the geographic scope of the TAS application would be a
relevant jurisdictional consideration and thus an appropriate issue
for potential comment during the TAS process. Commenters have, at
times, raised such geographic issues in the context of previous TAS
applications; EPA's proposal would not alter the opportunity to do
so for future applications, or any burden attendant to preparing and
submitting such comments.
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Because this proposal merely explains EPA's revised interpretation
of existing statutory requirements established in the CWA tribal
provision--and does not propose any changes to the existing regulatory
language applicable to CWA TAS applications--an interpretive rule is
the appropriate vehicle to announce EPA's revised approach. This
interpretive rule is not subject to notice and comment requirements of
the Administrative Procedure Act. However, EPA decided to provide
notice and an opportunity for comment to increase transparency and to
allow interested parties to provide their views. EPA intends this
process to ensure that the Agency's decision making is well informed by
stakeholder views and invites comments on all aspects of this proposal
to reinterpret section 518 of the CWA as a congressional delegation of
authority to eligible tribes.
VI. How would the proposed change in interpretation affect existing EPA
guidance to tribes seeking to administer CWA regulatory programs?
As noted in section V.G., EPA's proposal would not revise any
regulatory text. However, if EPA finalizes the proposal, the Agency
would consider revising and updating some of its existing guidance to
tribes and EPA regional offices on implementing the regulations.
For example, a 1998 memorandum to EPA staff (the ``Cannon-
Perciasepe Memorandum'') \15\ provided guidance for EPA's reviews of
tribal assertions of inherent authority. The memorandum established a
case-by-case process for EPA to seek comments from appropriate
governmental entities and the public on EPA's proposed factual findings
relating to nonmember activities on fee lands. Cannon-Perciasepe
Memorandum, p. 6. The memorandum also provided detailed guidance for
implementing the Montana test. Cannon-Perciasepe Memorandum, Att.
C.\16\
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\15\ ``Adoption of the Recommendations from the EPA Workgroup on
Tribal Eligibility Determinations,'' memorandum from Assistant
Administrator for Water Robert Perciasepe and General Counsel
Jonathan Z. Cannon to EPA Assistant Administrators and Regional
Administrators, March 19, 1998.
\16\ The ``Cannon-Perciasepe'' approach and related guidance to
tribes are reflected in subsequent EPA materials, including portions
of the ``Strategy for Reviewing Tribal Eligibility Applications to
Administer EPA Regulatory Programs,'' memorandum from Deputy
Administrator Marcus Peacock, January 23, 2008.
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If EPA finalizes this proposal, the memorandum's Montana test
guidance would no longer be relevant for TAS applications for CWA
regulatory programs, and there would be no need for EPA to develop or
seek comment on factual findings relating to tribal inherent authority.
EPA would update its guidance to applicant tribes to reflect these
changes consistent with the express congressional delegation of
authority to eligible tribes.
VII. What are the anticipated effects of the proposed reinterpretation?
A. Effects on Tribes That EPA Has Previously Found Eligible for TAS
There would be no effect on tribes that EPA has previously found
eligible for TAS for the purpose of a CWA regulatory program.
B. Effects on New Tribal Applications
If EPA finalizes this proposed interpretive rule, then after the
effective date TAS applications for CWA regulatory programs would be
able to rely on the delegation from Congress as the relevant source of
authority supporting their eligibility. The reinterpretation should
thus streamline the TAS process for many tribes seeking eligibility to
administer CWA regulatory programs. EPA anticipates that this proposed
action, if finalized, could significantly reduce the time and effort
for tribes to develop their TAS applications, and could encourage more
tribes to apply for TAS for CWA regulatory programs.
EPA advises tribes that have already initiated TAS applications for
CWA regulatory programs that the reinterpretation proposed in this
action has not yet taken effect. The earliest it could take effect
would be 30 days after EPA issues a final interpretive rule after
reviewing and considering all comments received during the public
comment period (see DATES section at the beginning of this document).
All TAS applications will be processed under the existing statutory
interpretation and the current regulations and guidance noted above,
unless and until EPA issues a final interpretive rule. Such tribes can,
at their option, ask EPA to suspend action on their current CWA
applications for regulatory programs pending a potential final
interpretive rule, but EPA cannot guarantee whether or when this
proposal will be finalized.
C. Effects on EPA-Approved State Programs
EPA's proposal would have no effect on the scope of existing state
regulatory programs approved by EPA under the CWA. Generally speaking,
civil regulatory jurisdiction in Indian country lies with the federal
government and the relevant Indian tribe, not with the states. See,
e.g., Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520,
527 n.1 (1998). Therefore, in the absence of an express demonstration
of authority by a state for such areas, EPA has generally excluded
Indian country from its approvals of state regulatory programs under
the CWA.
The proposal relates solely to the exercise of jurisdiction by
Indian tribes on their reservations; it would have no effect on the
scope of existing CWA regulatory programs administered by states
outside of Indian country. It would neither diminish, nor enlarge, the
scope of such approved state programs.
There are uncommon situations where a federal statute other than
the CWA grants a state jurisdiction to regulate in areas of Indian
country. For example, in a few cases EPA has approved states to operate
CWA regulatory programs in areas of Indian country where the states
demonstrated jurisdiction based on such a separate federal statute.
This proposal is not intended to address or affect such jurisdiction
that other federal statutes provide to states.
Regulations already exist to address circumstances where a state or
tribe believes that unreasonable consequences could arise or have
arisen as a result of differing WQS set by states and eligible Indian
tribes on common bodies of water. Section 518(e) of the CWA required
EPA to provide a mechanism to address such situations. The Agency did
so at 40 CFR 131.7, which establishes a detailed dispute resolution
mechanism. This proposal does not affect that process; it would remain
available as needed to address potential state/tribal issues.
VIII. Economic Analysis
This rule would entail no significant cost. Its only direct effect
would be to reduce the administrative burden for a tribe applying to
administer a CWA regulatory program, and to potentially increase the
pace at which tribes seek such programs. See the discussion of
administrative burden and cost in section IX.B. (Paperwork Reduction
Act).
[[Page 47440]]
IX. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
EPA has submitted the information collection activities in this
proposed interpretive rule to OMB for approval under the PRA. The
Information Collection Request (ICR) document that EPA prepared has
been assigned EPA ICR number 2515.01. You can find a copy of the ICR in
the docket for this rule, and it is briefly summarized here.
As discussed in section II.B., EPA's regulations require that a
tribe seeking to administer a CWA regulatory program must submit
information to EPA demonstrating that the tribe meets the statutory
criteria described in section II.A. EPA requires this information in
order to determine that the tribe is eligible to administer the
program.
This proposed interpretive rule would streamline the application by
removing the current requirement for an applicant tribe to demonstrate
its inherent regulatory authority, including demonstrating that it
meets the Montana test where relevant. As described in the ICR, this
proposed rule would reduce the burden by an estimated 583 staff hours
for a typical tribe, or 27 percent, and reduce the cost of an
application to a typical tribe for salaries and contractor support by
an estimated $70,554 per tribe, or 39 percent.
Respondents/affected entities: Any federally recognized tribe with
a reservation can potentially apply to administer a regulatory program
under the CWA.
Respondent's obligation to respond: The information discussed in
this rule is required from a tribe only if the tribe seeks to
administer a CWA regulatory program. See EPA's regulations cited in
section II.B of this notice.
Estimated number of respondents: The total potential pool of
respondents is over 300 tribes with reservations. Although there are
566 federally recognized Indian tribes in the United States, the CWA
allows only those tribes with reservations to apply for authority to
administer programs. EPA estimates that about six tribes per year would
apply for a regulatory program under this proposed rule, an increase
from the current rate of four tribes per year. The pace of applications
could increase after the first few years as tribes become more familiar
with the post-rule process.
Frequency of response: Application by a tribe to be eligible to
administer a CWA regulatory program is a one-time collection of
information.
Total estimated burden: 9,642 tribal staff hours per year. Burden
is defined at 5 CFR 1320.3(b). EPA's ICR analysis included all
administrative costs associated with TAS applications even if some of
the costs are not strictly information collection costs. EPA was unable
to differentiate the information collection costs consistently and
reliably from other administrative costs such as program development
costs.
This estimate could overstate actual burden because (a) EPA assumed
that all applications are first-time applications for CWA regulatory
programs, and thus the tribes submitting them would be unable to rely
on materials from previous applications for different regulatory
programs; (b) EPA used a liberal estimate of the annual rate of tribal
applications to ensure that the ICR does not underestimate tribal
burden; and (c) EPA used a simplifying steady-state assumption in
estimating annualized costs.
Total estimated cost: $668,292, including staff salaries and the
cost of contractors supporting tribal applicants. This action does not
entail capital or operation and maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to EPA using the docket identified in the
ADDRESSES section at the beginning of this rule. You can also send your
ICR-related comments to OMB's Office of Information and Regulatory
Affairs via email to [email protected], Attention: Desk
Officer for EPA. Since OMB is required to make a decision concerning
the ICR between 30 and 60 days after receipt, OMB must receive comments
no later than September 8, 2015. EPA will respond to any ICR-related
comments in the final rule.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This action
affects only Indian tribes that seek to administer CWA regulatory
programs.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action would not have federalism implications. It would not
have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
This proposed action would apply only to tribal governments that
seek eligibility to administer CWA regulatory programs. Although it
could be of interest to some state governments, it would not apply
directly to any state government or to any other entity. As discussed
in section VII.C., the action would have no effect on the scope of
existing state regulatory programs approved by EPA under the CWA.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and state and local
governments, EPA consulted with representatives of state governments to
obtain meaningful and timely input for consideration in this proposal.
On June 18, 2014, EPA invited ten national and regional state
associations \17\ by letter to a July 8, 2014, informational meeting at
EPA in Washington, DC. As a result of this meeting and other outreach,
EPA participated in several follow-up meetings with interested
associations
[[Page 47441]]
and their members as well as certain individual states during the
months of June-September, 2014. Records of these meetings and copies of
written comments and questions submitted by states and state
associations are included in the docket for this rule.
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\17\ The National Governors Association, the National Conference
of State Legislatures, the Council of State Governments, the Western
Governors Association, the Southern Governors Association, the
Midwestern Governors Association, the Coalition of Northeastern
Governors, the Environmental Council of the States, the Association
of Clean Water Administrators, and the Western States Water Council.
In May and June 2015, EPA held additional informational meetings
with the state environmental chiefs of the National Association of
Attorneys General, members of the legal network of the Environmental
Council of the States, and member states of the Western Governors'
Association.
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Some participants expressed concerns, which included: Whether the
proposal would affect the geographic scope of TAS under the CWA;
whether there is adequate evidence of congressional intent; how the
proposal would affect a state's ability to dispute a TAS application;
and how the proposal would affect the status of existing TAS
applications. Some states also had questions about issues unique to
their situations. EPA considered this input in developing the proposed
rule, particularly in developing sections IV. and V.
EPA specifically solicits additional comment on this proposed
action from state officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has tribal implications because it would directly
affect tribes seeking to administer CWA regulatory programs. However,
it would neither impose substantial direct compliance costs on
federally recognized tribal governments, nor preempt tribal law. EPA
consulted and coordinated with tribal officials under the EPA Policy on
Consultation and Coordination with Indian Tribes early in the process
of developing this regulation to permit them to have meaningful and
timely input into its development. A summary of that consultation and
coordination follows.
EPA initiated a tribal consultation and coordination process for
this action by sending a ``Notification of Consultation and
Coordination'' letter on April 18, 2014, to all 566 federally
recognized tribes. EPA contacted all federally recognized tribes, even
though only tribes with reservations can apply for TAS under the CWA,
because it is possible that additional tribes could acquire reservation
lands in the future. The letter invited tribal leaders and designated
consultation representatives to participate in the tribal consultation
and coordination process. EPA held two identical webinars concerning
this matter for tribal representatives on May 22 and May 28, 2014. A
total of 70 tribal representatives participated in the two webinars,
and tribes and tribal organizations sent 23 comment letters to EPA.
All tribal comments generally supported EPA's potential
reinterpretation of section 518. Some comments expressed concerns about
whether there would be adequate funding to help tribes administer CWA
regulatory programs after they have TAS. EPA considered the tribal
comments in developing this proposal, and will continue to consider
tribal resource issues in its budgeting and planning process. However,
EPA cannot assure tribes that additional funding will be available for
a tribe to develop or implement the CWA regulatory program it seeks. A
tribe choosing to administer such programs will need to carefully weigh
its priorities and any available EPA assistance.
EPA specifically solicits additional comment on this proposed
action from tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe could disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health or safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
This proposed interpretive rule would not have potential
disproportionately high and adverse human health or environmental
effects on minority, low-income, or indigenous populations. This action
would affect the procedures tribes must follow in order to seek TAS for
CWA regulatory purposes and would not directly affect the level of
environmental protection.
Dated: July 31, 2015.
Gina McCarthy,
Administrator.
[FR Doc. 2015-19351 Filed 8-6-15; 8:45 am]
BILLING CODE 6560-50-P