Letter from NTWC to EPA on Provisions of the Clean Water Act (CWA)

Mr. Leutner:

The National Tribal Water Council (NTWC) supports EPA’s effort to reinterpret provisions of the Clean Water Act (CWA) regarding treatment of tribes in a manner similar to a state (TAS) process. The NTWC encourages EPA to formally proceed in adopting the position that section 518 of the CWA is an expressed delegation by Congress for eligible tribes to administer CWA regulatory programs within their reservations irrespective of land ownership.

The NTWC believes EPA’s reinterpretation of theTAS provision will clarify and strengthen the regulatory authority of tribes to implement EPA statutes on reservation lands. The reinterpretation would eliminate the ongoing need for tribes to show inherent authority over non-member lands. The plain language of Section 518 would preempt the need to assess tribal TAS applications in light of the “Montana Exceptions,” which has added an average 2.3 years to a tribe’s application process for the WQS program.

The current regulatory requirement for tribes to demonstrate a showing of inherent authority runs contrary to established federal Indian law and has the potential to undermine future tribal efforts to assert full authority over reservation environments.

Through the congressional delegation approach, EPA has utilized a similar approach in upholding the use of Clean Air Act (CAA) TAS provisions as a delegation of authority to eligible tribes to allow them to manage air resources throughout their reservations regardless of land ownership. EPA is currently considering whether a similar interpretation is available under the comparable language of the CWA. Changes will be analyzed in light of the existing statutory language and in the context of EPA’s prior interpretations and programmatic needs.

The reinterpretation would validate the legal basis for tribal assertion of regulatory jurisdiction under the CWA, decrease the administrative burden of a case-by-case assessment of tribal authority, and avert the potential pitfalls of uncertain inherent authority analysis.

Eliminating this regulatory barrier could result in an increase in the number of tribes planning to pursue TAS, or actively engaged in TAS process, for regulatory programs under the CWA. Currently, only 48 of the 566 federally recognized tribes have successfully demonstrated their own inherent regulatory authority to EPA to implement CWA water quality standard programs. Increased tribal participation would benefit all tribes.

The NTWC strongly believes that tribal advancement in the area of environmental regulation is best accomplished by congressional authorization or delegation.

EPA has the opportunity to advance the assertion of tribal authority within tribal lands through the process of reinterpreting existing TAS provisions. This reinterpretation will allow tribes to take on the full mantle of regulatory authority within the boundaries of their tribal lands.

The assertion of tribal environmental regulatory authority has thus far succeeded only with the strong backing of EPA. Tribes look upon EPA as a valuable partner in the ongoing struggle for equal footing under environmental regulatory statutes. Reinterpretation of existing TAS provisions by EPA will surely assist tribes in their long struggle to secure full regulatory authority as sovereign nations over tribal water, air, and land resources.

The NTWC appreciates the opportunity to provide input and support to the reinterpretation of the CWA TAS provision. We look forward to collaborating with you and staff as the Agency considers issuing an interpretive rule.

Respectfully,

Ken Norton, Chairman, NTWC

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