[Federal Register Volume 81, Number 94 (Monday, May 16, 2016)]
[Rules and Regulations]
[Pages 30183-30198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11511]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 123, 131, 233 and 501

[EPA-HQ-OW-2014-0461; FRL-9946-33-OW]


Revised Interpretation of Clean Water Act Tribal Provision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interpretive rule.

-----------------------------------------------------------------------

SUMMARY: Section 518 of the Clean Water Act (CWA), enacted as part of 
the 1987 amendments to the statute, authorizes EPA to treat eligible 
Indian tribes with reservations in a manner similar to states (TAS) for 
a variety of purposes, including administering each of the principal 
CWA regulatory programs and receiving grants under several CWA 
authorities. Since 1991, EPA has followed a cautious interpretation 
that has required tribes, as a condition of receiving TAS regulatory 
authority under section 518, to demonstrate inherent authority to 
regulate waters and activities on their reservations under principles 
of federal Indian common law. The Agency has consistently stated, 
however, that its approach was subject to change in the event of 
further congressional or judicial guidance addressing tribal authority 
under CWA section 518. Based on such guidance, EPA in the interpretive 
rule we are finalizing today concludes definitively that section 518 
includes an express delegation of authority by Congress to Indian 
tribes to administer regulatory programs over their entire 
reservations, subject to the eligibility requirements in section 518. 
This reinterpretation streamlines the process for applying for TAS, 
eliminating the need for applicant tribes to demonstrate inherent 
authority to regulate under the Act and allowing eligible tribes to 
implement the congressional delegation of authority. The 
reinterpretation also brings EPA's treatment of tribes under the CWA 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 interpretive rule

[[Page 30184]]

does not revise any regulatory text. Regulatory provisions 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. This rule will reduce burdens on applicants associated 
with the existing TAS process and has no significant cost.

DATES: This final interpretive rule is effective on May 16, 2016.

ADDRESSES: EPA has established a docket for this rule under Docket ID 
No. EPA-HQ-OW-2014-0461. All documents in the docket are listed on the 
http://www.regulations.gov Web site.

FOR FURTHER INFORMATION CONTACT: Thomas Gardner, Standards and Health 
Protection Division, Office of Science and Technology (4305T), 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460; telephone number: (202) 566-0386; email address: 
TASreinterpretation@epa.gov.

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

I. General Information
    A. Does this interpretive rule apply to me?
    B. What interpretation is the Agency making?
    C. How was this rule developed?
    D. What is the Agency's authority for issuing this 
reinterpretation?
    E. What are the incremental costs and benefits of this 
interpretive rule?
    F. Judicial Review
II. Background
    A. Statutory History
    B. Regulatory History
III. How did EPA interpret the CWA TAS provision in 1991 when 
establishing TAS regulations for CWA regulatory programs?
IV. What developments support EPA's revised statutory 
interpretation?
    A. Relevant Congressional, Judicial and Administrative 
Developments
    B. EPA and Tribal Experience in Processing TAS Applications for 
CWA Regulatory Programs
V. EPA's Revised Statutory Interpretation
    A. What does today's reinterpretation provide and why?
    B. What other approaches did EPA consider?
    C. What is EPA's position on certain public comments and tribal 
and state stakeholder input?
    1. Geographic Scope of TAS for Regulatory Programs
    2. Treatment of Tribal Trust Lands
    3. Tribal Criminal Enforcement Authority
    4. Special Circumstances
    5. Tribal Inherent Regulatory Authority
    6. Existing Regulatory Requirements
    a. TAS Requirements
    b. Relationship to Program Approvals
    7. Effects on New Tribal TAS Applications
    8. Effects on EPA-Approved State Programs
VI. How does the rule affect existing EPA guidance to tribes seeking 
to administer CWA regulatory programs?
VII. Economic Analysis
VIII. 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
    K. Congressional Review Act (CRA)

I. General Information

A. Does this interpretive rule apply to me?

    This rule 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 rule or have an interest in it.

------------------------------------------------------------------------
                                     Examples of potentially affected or
             Category                        interested entities
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

    If you have questions regarding the effect of this interpretive 
rule on a particular entity, please consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

B. What interpretation is the Agency making?

    Today's interpretive rule streamlines how tribes apply for TAS 
under CWA section 518 for CWA regulatory programs including the water 
quality standards program. It eliminates the need for applicant tribes 
to demonstrate inherent authority to regulate under the Act, thus 
allowing tribes to implement a delegation of authority by Congress. 
Specifically, EPA revises its existing interpretation of CWA section 
518 to conclude definitively that this provision includes an express 
delegation of authority by Congress to Indian tribes to administer 
regulatory programs over their entire reservations, subject to the 
eligibility requirements in section 518.

C. How was this rule developed?

    EPA conducted consultation and coordination with tribes and states 
before proposing the reinterpretation in the Federal Register on August 
7, 2015. See 80 FR 47430 (August 7, 2015) (``proposed rule,'' ``EPA's 
proposal,'' ``proposed reinterpretation''), available in the docket for 
this rule. During the 60-day public comment period, EPA provided 
informational webinars for the public and conducted further 
consultation and coordination with tribes and states.
    EPA received a total of 44 comments from the public on the proposed 
interpretive rule. A majority (27) of the comments expressed support 
for the rule, including unanimous support from tribes and tribal 
organizations that responded. Sections IV and V address issues and 
questions about the proposal that commenters raised.
    Today's rule finalizes the proposal, reflecting EPA's consideration 
of the comments and other input received. The comments, EPA's responses 
to the comments, and meeting notes are available in the public docket 
at http://www.regulations.gov.

D. What is the Agency's authority for issuing this reinterpretation?

    The CWA, 33 U.S.C. 1251, et seq., including section 518 (33 U.S.C. 
1377).

[[Page 30185]]

E. What are the incremental costs and benefits of this interpretive 
rule?

    This rule entails no significant cost. Its only effect will be to 
reduce the administrative burden for a tribe applying in the future 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 sections VII and VIII.B.

F. Judicial Review

    This interpretive rule, which sets forth EPA's revised 
interpretation of CWA section 518, is not a final agency action subject 
to immediate judicial review. This interpretive rule is not 
determinative of any tribe's eligibility for TAS status. Rather, it 
notifies prospective applicant Indian tribes and others of EPA's 
revised interpretation. Today's interpretive rule would be subject to 
judicial review only in the context of a final action by EPA on a TAS 
application from an Indian tribe for the purpose of administering a CWA 
regulatory program based on the revised interpretation.

II. Background

A. Statutory History

    Congress added CWA section 518 as part of amendments made to the 
statute in 1987. Section 518(e) authorizes EPA to treat eligible Indian 
tribes in a similar manner as 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 
manner similar to 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 also 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.

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: \1\
---------------------------------------------------------------------------

    \1\ In early 2016 EPA proposed to add criteria and procedures 
for tribes to obtain TAS to administer the CWA Section 303(d) 
Impaired Water Listing and Total Maximum Daily Load (TMDL) Program. 
80 FR 2791, Jan. 19, 2016. The proposal has not yet been finalized 
and thus is not in effect at this time.
---------------------------------------------------------------------------

     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 123.31-123.34 for section 402 National Pollutant 
Discharge Elimination System (NPDES) permitting and other provisions, 
and 40 CFR 501.22-501.25 for the state section 405 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 233.60-233.62 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 sections 402, 404 and 
405 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).\2\ The TAS 
regulations for CWA regulatory programs have remained intact since 
promulgation of the Simplification Rule.
---------------------------------------------------------------------------

    \2\ 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.
---------------------------------------------------------------------------

    Today's interpretive rule does not address or affect the TAS 
requirements or review process for tribes to receive grants.\3\ 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.
---------------------------------------------------------------------------

    \3\ 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).
---------------------------------------------------------------------------

III. How did EPA interpret the CWA TAS provision in 1991 when 
establishing TAS regulations for CWA regulatory programs?

    The TAS eligibility criteria in section 518(e) make no reference to 
any demonstration of an applicant tribe's regulatory authority to 
obtain TAS. Rather, the relevant part of section 518(e)--which is 
section 518(e)(2)--requires only that the functions to be exercised by 
the tribe pertain to the management and protection of reservation water 
resources. As noted above, section 518(h)(1) also defines Indian 
reservations to include all reservation land irrespective of who owns 
the land. EPA nonetheless took a cautious approach when it issued the 
1991 WQS TAS rule and subsequent regulations described in section II.B 
above. The 1991 approach required each tribe seeking TAS for the 
purpose of administering a CWA regulatory program to demonstrate its 
inherent authority under principles of federal Indian law, including 
gathering and analyzing factual information to demonstrate the tribe's 
inherent authority over the activities of nonmembers of the tribe on 
nonmember-owned fee lands within a reservation.\4\
---------------------------------------------------------------------------

    \4\ Under principles of federal Indian law, demonstrations of 
inherent tribal authority over such non-member activities are guided 
by the principles expressed in Montana v. United States, 450 U.S. 
544 (1981), and its progeny.

---------------------------------------------------------------------------

[[Page 30186]]

    EPA recognized at the time that there was significant support for 
the proposition that Congress had intended to delegate authority to 
otherwise eligible tribes to regulate their entire reservations under 
the Act. Notably, in a plurality opinion in Brendale v. Confederated 
Tribes and Bands of the Yakima Nation, 492 U.S. 408 (1989), Justice 
White had even cited section 518 as an example of a congressional 
delegation of authority to Indian tribes.\5\ EPA also stated the 
Agency's interpretation that in section 518, Congress had expressed a 
preference for tribal regulation of surface water quality on 
reservations to assure compliance with the goals of the CWA. 56 FR at 
64878-79. Nonetheless, in an abundance of caution, EPA opted at the 
time to require tribes to demonstrate, on a case-by-case basis, their 
inherent jurisdiction to regulate under the CWA. EPA was clear, 
however, that this approach was subject to change in light of further 
judicial or congressional guidance. Id.
---------------------------------------------------------------------------

    \5\ Brendale v. Confederated Tribes and Bands of the Yakima 
Nation, 492 U.S. 408, 428 (1989). Although highly instructive, EPA 
recognized that the statement regarding section 518 was not 
necessary to the plurality's decision. See 56 FR at 64880. The five 
Justices not joining Justice White's opinion did not discuss the CWA 
provision.
---------------------------------------------------------------------------

    For further details about EPA's 1991 interpretation of the CWA TAS 
provision, see section III of EPA's proposal. 80 FR at 47433-34.

IV. What developments support EPA's revised statutory interpretation?

A. Relevant Congressional, Judicial and Administrative Developments

    Since 1991, EPA has taken final action approving TAS for CWA 
regulatory programs for 53 tribes.\6\ 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, Case No. 96-C-90 (E.D. Wis. 1999), 
aff'd, 266 F.3d 741 (7th Cir. 2001), cert. denied, 535 U.S. 1121 (2002) 
(Sokaogon Chippewa Community); Montana v. EPA, 941 F. Supp. 945 (D. 
Mont. 1996), aff'd, 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).\7\
---------------------------------------------------------------------------

    \6\ The site http://www.epa.gov/wqs-tech/epa-approvals-tribal-water-quality-standards provides a list of tribes with TAS 
eligibility for the section 303(c) water quality standards and 
section 401 water quality certification programs. To date, EPA has 
not approved TAS for any tribe for CWA section 402 or section 404 
permitting.
    \7\ 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).
---------------------------------------------------------------------------

    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 water resources on their entire reservations, 
including regulation of non-Indians on fee lands within a reservation. 
Montana v. EPA, 941 F. Supp. at 951-52. 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 had premised its approval of the TAS application at issue upon a 
showing of tribal inherent 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)--
and the review of that provision in court provide additional relevant 
guidance (both congressional and judicial) regarding legislative intent 
to treat Indian reservations holistically for purposes of environmental 
regulation by delegating authority over such areas to eligible Indian 
tribes. 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 
not until 1998 that EPA promulgated its regulations interpreting the 
CAA TAS provision as an express congressional delegation of authority 
to eligible Indian tribes. 40 CFR part 49; 63 FR 7254 (February 12, 
1998) (the ``CAA Tribal Authority Rule''). The U.S. Court of Appeals 
for the D.C. Circuit upheld that interpretation two years later. 
Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Circuit 2000) 
(``APS''), cert. denied, 532 U.S. 970 (2001). As described below, in 
the preamble to the CAA Tribal Authority Rule and in APS, EPA and the 
D.C. Circuit considered significant similarities between the CWA and 
CAA tribal provisions. With the benefit of the court's careful review 
in APS, EPA believes that enactment of the CAA TAS provision in 1990 
provides useful guidance from Congress regarding its similar intent in 
1987 to provide for uniform tribal regulation of mobile environmental 
pollutants within reservations. Relevant aspects and treatment of the 
CAA TAS provision are described below.
    EPA finalized its regulations implementing CAA section 301(d) in 
1998. 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-

[[Page 30187]]

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 provide 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 open 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.\8\ 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.
---------------------------------------------------------------------------

    \8\ 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 addressed 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.
---------------------------------------------------------------------------

    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 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. Additionally, in 2011 
EPA discussed the possible reinterpretation of section 518 in a review 
of EPA's legal authorities that could help advance environmental 
justice.\9\ Today's rule accomplishes such a reinterpretation.
---------------------------------------------------------------------------

    \9\ Plan EJ 2014: Legal Tools, Office of General Counsel, EPA, 
December 2011. See http://www3.epa.gov/environmentaljustice/plan-ej/index.html.
---------------------------------------------------------------------------

Consideration of Comments
    EPA received numerous comments on the proposed rule addressing the 
Agency's rationale for revising its interpretation of section 518. All 
eighteen Indian tribes and the three tribal organizations that 
commented expressed strong support for the rule. Two states also 
expressed support for tribal opportunities to obtain TAS. Several 
members of the public also supported the rule, including a member of 
the Indian law academic community. Supportive commenters agreed that 
the plain language of section 518 indicates Congress' intent to 
delegate authority to tribes to regulate their entire reservations 
under the CWA and that the cited case law developments provide 
additional support for the revised interpretation and a solid basis for 
EPA to finalize the rule. Commenters noted the similarities between the 
CWA

[[Page 30188]]

and CAA tribal provisions and supported EPA's effort to harmonize the 
treatment of Indian reservations under both statutes. Some comments 
asserted that EPA should have treated section 518 as a congressional 
delegation all along and argued that requiring tribes to demonstrate 
inherent authority to regulate under the CWA had imposed requirements 
not included in the statute and may have exceeded EPA's authority. EPA 
appreciates the commenters' support for the rule.
    EPA also received comments from several other states, a local 
government, a local government association, two operating agents of 
industrial facilities, and one member of the public disagreeing with, 
or questioning, in whole or in part EPA's rationale for the revised 
interpretation of section 518. These comments assert that EPA's legal 
analysis does not support the change in statutory interpretation; that 
there has been no definitive court ruling on the proper interpretation 
of section 518; and that the judicial statements regarding section 518 
that EPA cited in the proposal represent dicta and not actual court 
holdings on the CWA question. The comments also argue that the relevant 
CWA legislative history does not support the revised interpretation and 
note that Congress has been aware of EPA's prior interpretation since 
1991 but has taken no action to correct it, notwithstanding that 
Congress amended section 518 in 2000. Commenters also point to a 
backdrop of U.S. Supreme Court case law addressing limitations on 
inherent tribal authority with regard to the activities of non-tribal 
members and assert that the revised interpretation would run counter to 
that line of jurisprudence. The comments also assert that differences 
between the CWA and CAA and between water and air quality issues 
support treating reservations differently under the two statutes.
    EPA appreciates but disagrees with these comments. EPA recognizes 
that the various judicial statements supporting the Agency's 
interpretation of section 518 as a congressional delegation were not 
central to the holdings of the relevant cases. This is not surprising 
in light of the fact that EPA has not previously approved a TAS 
application based on this interpretation of section 518. Because EPA 
has premised its prior TAS approvals on demonstrations of inherent 
tribal regulatory authority, there would be no opportunity in the 
ordinary course of judicial review to join the open question regarding 
the proper interpretation of the statute. Nonetheless, the commenters 
undervalue the significance of the cited judicial statements. For 
instance, although the district court in Montana v. EPA did not need to 
decide the issue to uphold EPA's approval of the Salish and Kootenai 
Tribes' TAS application, the question of whether section 518 delegates 
authority to tribes was squarely presented and subjected to the court's 
careful analysis. The court reviewed the statutory language and 
legislative history and clearly articulated its view (albeit not its 
holding) that section 518 is properly interpreted as a delegation of 
authority to tribes. The D.C. Circuit also expressly considered section 
518 during its review of the CAA tribal provision in APS, with the 
dissenting judge going so far as to cite the CWA as including the gold 
standard of statutory language to delegate authority to tribes over 
their reservations. EPA continues to view these statements as 
significant judicial guidance. EPA also continues to view the reference 
to section 518 in Justice White's opinion in Brendale as an important 
observation from the highest federal court that the CWA reflects 
congressional intent to delegate authority to tribes. EPA recognizes 
that the reference was not necessary to the plurality's opinion and 
that the opinion does not include an analysis of section 518. For these 
and other reasons, EPA opted to proceed cautiously in 1991 and await 
further guidance. But EPA's deliberate approach in no way discounts or 
diminishes the value of Justice White's statement toward a proper 
interpretation of section 518. Viewed as a whole, the various judicial 
statements regarding section 518 provide ample support for EPA's 
revised interpretation.
    EPA is also aware of the separate Supreme Court jurisprudence 
addressing inherent tribal authority over nonmembers on Indian 
reservations. This is, of course, the same line of authority that EPA 
has previously applied when tribes sought to regulate the activities of 
nonmembers under the CWA. Retained inherent authority is, however, only 
one of the means by which tribes may exercise authority over their 
reservations and, in particular, over the activities of nonmembers. The 
Supreme Court has long recognized Congress' broad power to delegate 
authority to Indian tribes, including the authority to regulate the 
conduct of nonmembers of the tribes. See, e.g., United States v. 
Mazurie, 419 U.S. 544 (1975). Such delegations are neither inconsistent 
with, nor in opposition to, any limitations on retained tribal inherent 
authority. Instead, they are a proper exercise of Congress' plenary 
power under the U.S. Constitution with respect to Indian tribes. As 
with the CAA tribal provision, such delegations may be appropriately 
designed to address situations where Congress views coherent management 
of reservation resources by tribal governments as an appropriate means 
to carry out the purposes of a federal statute on Indian reservations. 
As noted above, EPA has long viewed the CWA tribal provision as 
expressing a congressional preference for tribal regulation of 
reservation water resources. EPA has now taken the related step of 
reconsidering and revising its interpretation of section 518 to reflect 
Congress' intent to delegate the requisite authority to tribes to 
effectuate such regulation.
    EPA also acknowledges that the legislative history of section 518 
is inconclusive regarding congressional intent to delegate authority to 
tribes. The commenters, however, overstate the degree to which the 
legislative record indicates an absence of such intent. EPA carefully 
analyzed this legislative history in the preamble to the 1991 WQS TAS 
rule and found that the record includes statements that can be 
interpreted to support either view. The absence of clarity in the 
record was among the reasons EPA opted to proceed initially with a high 
degree of caution and impose a requirement not otherwise reflected in 
the CWA that tribes demonstrate inherent authority to regulate under 
the statute. Notably, in 1996 the district court in Montana v. EPA also 
reviewed this legislative history and, while observing that the record 
may be ambiguous, reasoned that it was only arguably so because the 
bulk of the congressional statements were actually collateral to the 
issue and addressed the separate question of whether section 518 
affected tribal water quantity rights (which it does not). More 
importantly, the key to a congressional delegation of authority is 
found in the express language of the statute, and not between the lines 
of recorded statements of particular congressional members. In relevant 
part, section 518(e) requires only that the CWA functions to be 
exercised by an applicant tribe pertain to reservation water resources, 
and section 518(h)(1) then uses the ``gold standard'' language to 
define such reservations to include all reservation lands irrespective 
of ownership. This language expresses clear congressional intent to 
delegate authority without any separate requirement that applicant 
tribes meet an additional jurisdictional test.
    EPA also finds the absence of any action by Congress to correct 
EPA's prior cautious approach to be

[[Page 30189]]

unpersuasive on the issue of congressional intent. No amendment to the 
statute was needed to reflect Congress' intent, since the language of 
section 518 already expressly delegates authority to tribes. EPA is 
also unaware of any request considered by Congress to revise section 
518 with regard to this question or otherwise apprise EPA of its intent 
to delegate authority. Further, although EPA's prior interpretation has 
resulted in some additional burdens and delays in processing TAS 
applications, EPA has never disapproved a CWA TAS application based on 
an absence of tribal regulatory authority (or for any other reason), 
and thus has never taken an action directly inconsistent with Congress' 
intent to delegate authority to tribes. In these circumstances, it 
would be inappropriate to interpret congressional inaction as a 
ratification of EPA's prior approach to section 518.
    Further, the fact that Congress in 2000 enacted a separate targeted 
amendment to section 518 to make a newly created program available to 
tribes without also addressing tribal regulatory authority sheds no 
light on the question. In 2000, Congress enacted the coastal recreation 
water quality monitoring and notification provision at section 406 of 
the CWA and also provided that tribes should be able to obtain TAS for 
that program. The fact that Congress did not further amend the statute 
at that time to address tribal regulatory authority is unrevealing 
regarding its prior intent in 1987 to delegate authority to tribes. For 
the reasons described above, there was no substantial cause for 
Congress to address tribal jurisdiction at that time. In addition, the 
legislative history of the 2000 amendment is consistent with Congress' 
narrow purpose to insert section 406 into the list of programs 
identified in section 518 for potential TAS. It does not indicate any 
consideration of the issue of tribal regulatory authority. Further, CWA 
section 406 establishes a funding and monitoring program. It does not 
entail the exercise of any regulatory authority by states or tribes. It 
would have been highly anomalous for Congress to address tribal 
regulatory authority as an adjunct to establishing a TAS opportunity 
for a non-regulatory program. In these circumstances, EPA declines to 
interpret congressional inaction as a tacit approval or adoption of 
EPA's prior approach to tribal authority.
    Finally, EPA continues to view the analogy between CWA and CAA 
regulation, and between the tribal provisions of the two statutes, as 
supportive of today's rule. Although there are differences between the 
two statutes and their relevant histories, both evince a clear 
congressional intent (only three years apart) to treat Indian 
reservations holistically and to provide for tribal regulation of 
mobile pollutants on reservations irrespective of land ownership. The 
CAA, which authorizes TAS over both reservation and non-reservation 
lands, expresses the delegation of authority by distinguishing between 
those two categories and clearly placing reservations within tribal 
jurisdiction. The CWA authorizes TAS solely for reservations. The 
statute is thus somewhat more limited in the geographic scope of 
potential TAS, but, as a result, it more directly expresses the 
delegation of authority over the covered reservation areas. Section 
518(e)(2) requires only that the tribal program pertain to reservation 
water resources, and section 518(h)(1) unambiguously defines 
reservations to include all reservation land notwithstanding ownership. 
EPA also disagrees with a comment suggesting that differences between 
airsheds and watersheds within Indian reservations support treating the 
two statutes' tribal provisions differently. In particular, the comment 
notes that watersheds can have defined beds and banks that cross lands 
with disparate ownership patterns. EPA notes that the same is 
essentially true of airsheds, which cover reservation lands without 
regard to ownership. As noted by the district court in Montana v. EPA, 
the congressional delegation of authority to tribes thus comports with 
common sense by avoiding checkerboarded regulation within a reservation 
based on land ownership. Montana v. EPA, 941 F. Supp. At 951-52.

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 test established in 
Montana v. U.S. regarding tribal inherent authority over the activities 
of non-tribal members on nonmember fee lands, 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 burden 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 about the 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.

[[Page 30190]]

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.A, relevant developments 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.

V. EPA's Revised Statutory Interpretation

A. What does today's revised interpretation provide and why?

    EPA today revises its interpretation of CWA section 518 and 
concludes 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 exercises the 
authority entrusted to it by Congress to implement the CWA TAS 
provision.
    The effect of this interpretive rule is to relieve a tribe of the 
need to demonstrate its inherent authority when it applies for TAS to 
administer a CWA regulatory program. An applicant tribe still needs to 
meet all other eligibility requirements specified in CWA section 518 
and EPA's implementing regulations. Nonetheless, this rule eliminates 
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 v. 
U.S. Instead, an applicant tribe can generally rely on the 
congressional delegation of authority in section 518 as the source of 
its authority to regulate its entire reservation under the CWA without 
distinguishing among various categories of on-reservation land. The 
tribe may, however, need to supply additional information to address 
any potential impediments to the tribe's ability to effectuate the 
delegation of authority.
    EPA bases its revised interpretation of CWA section 518 on its 
analysis in section IV above and a careful consideration of comments 
received. Most importantly, EPA's revised interpretation is based on 
the plain text of section 518 itself. 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 F.3d at 1302-03. It is also the language that the U.S. Supreme 
Court reviewed in finding congressional delegations to tribes in other 
cases. 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.
    As EPA explained in section IV.A 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. What other approaches did EPA consider?

    EPA considered not revising its 1991 interpretation of section 518. 
EPA did not choose this option because it would continue to impose an 
unnecessary requirement on applicant tribes not specified in the CWA to 
demonstrate inherent authority, including meeting the Montana test 
regarding activities of nonmembers on their reservation fee lands, when 
they apply to regulate under the statute.
    EPA also considered revising the text of existing TAS regulations 
for CWA regulatory programs to alter tribal application requirements in 
light of the revised interpretation. In particular, EPA considered 
revising the requirements relating to tribal submissions of statements 
addressing jurisdiction as well as the procedures for states and other 
appropriate entities to comment on tribal assertions of authority. Had 
EPA decided to revise its regulations, EPA would have issued a 
legislative rule revising the TAS application provisions in the Code of 
Federal Regulations. However, EPA rejected this approach as both 
unnecessary and counterproductive. As described in section V.C.6, EPA 
concludes that the existing regulations are appropriately structured to 
accommodate the revised interpretation and that the procedures 
requiring tribal legal statements and providing opportunities for 
notice and comment continue to serve important purposes. Among other 
things, such procedures ensure that applicant tribes will continue to 
adequately address the reservation boundaries within which they seek to 
regulate under the CWA as well as any potential impediments that may in 
some cases exist to their ability to accept or effectuate the 
congressional delegation of authority. Retaining the notice and comment 
requirements will also ensure that states and other appropriate 
entities continue to have an opportunity to interact with EPA on these 
issues and that EPA's decision making on individual TAS applications is 
well informed.
    Because today's interpretive rule merely explains EPA's revised 
interpretation of existing statutory requirements established in the 
CWA tribal provision--and does not make any changes to the existing 
regulations--an interpretive rule is the appropriate vehicle to 
announce EPA's revised approach.
Consideration of Comments
    One state commented that EPA must use a legislative rulemaking 
process because the revised interpretation will eliminate the existing 
regulatory requirement that applicant tribes submit a statement 
addressing their jurisdiction and will affect states' opportunity under

[[Page 30191]]

the regulations to comment on tribal jurisdiction. A local government 
also expressed concern with EPA's statement in the proposal that the 
interpretive rule is not subject to notice and comment requirements of 
the Administrative Procedure Act.
    EPA disagrees that a legislative rulemaking is required to issue 
the revised interpretation. As noted above, EPA has decided not to 
revise any existing TAS application regulations published in the Code 
of Federal Regulations. Contrary to the state commenter's assertion, 
EPA specifically decided to retain the regulatory requirements relating 
to tribal jurisdictional statements and states' opportunity to comment 
on such assertions. Although EPA could reasonably have chosen to revise 
or eliminate aspects of these regulations, EPA has concluded that 
requiring applicant tribes to submit relevant jurisdictional 
information and allowing states and other appropriate entities to 
comment on such submissions will continue to ensure that any 
reservation boundary or other relevant jurisdictional issues are raised 
during a well-informed decision making process.
    Importantly, although this interpretive rule is not subject to 
notice and comment requirements of the Administrative Procedure Act, 
EPA decided to provide notice and an opportunity for comment--in 
addition to other pre- and post-proposal outreach to tribes, states, 
and the public--to increase transparency and to allow interested 
parties to provide their views. EPA received comments on the proposal 
and has considered them in developing today's rule. A member of the 
academic community expressly supported EPA's use of an interpretive 
rule as the appropriate administrative mechanism to publish the revised 
interpretation. EPA appreciates that support.

C. What is EPA's position on certain public comments and tribal and 
state input?

    In this section, EPA responds to several specific topics that were 
raised in public comments on EPA's proposal and in earlier input 
received from tribes and states during pre-proposal and post-proposal 
outreach.
1. Geographic Scope of TAS for Regulatory Programs
    EPA's final rule does 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 
managing and protecting water resources within 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\ Today's 
rule does not alter that basic limitation of TAS under the CWA.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

Consideration of Comments
    EPA received comments from several local governments seeking 
clarification of the geographic scope of TAS for CWA regulatory 
purposes and in particular noting that some reservations have complex 
histories of congressional treatment, including the opening of 
reservations to non-Indian settlement through surplus land acts. The 
commenters assert that each surplus land statute must be analyzed 
individually to determine whether it has altered the land status of the 
subject reservation and note that in some cases such statutes may 
result in situations where certain lands are taken out of reservation 
status, even though they remain surrounded by the original exterior 
boundaries of a reservation. The commenters request that EPA define the 
fee-owned lands that may be covered by a TAS application to exclude 
lands settled by non-tribal members pursuant to a federal surplus land 
act. One tribal commenter noted that there may be non-reservation 
inholdings that are surrounded by reservation lands and disagreed with 
EPA's approach of requiring that all lands subject to TAS for CWA 
regulatory purposes qualify as Indian reservation land. A state 
commenter agreed with EPA that reservation boundaries remain a relevant 
issue for tribal TAS applications and noted that EPA's revised 
interpretation would not reduce any burdens associated with resolving 
such issues.
    EPA notes that any issues regarding the geographic scope of TAS 
under the CWA are outside the scope of this interpretive rule. As noted 
above and in the proposal, the revised interpretation does not alter in 
any way EPA's longstanding approach to the limitation of TAS in CWA 
section 518 to lands that qualify as reservation lands. This basic 
geographic land status limitation exists irrespective of whether tribes 
must demonstrate inherent authority to regulate under the CWA or 
whether they may rely on the congressional delegation of authority in 
section 518.
    EPA appreciates the local governmental commenters' questions and 
understands that some Indian reservations may have complicated 
histories and that reservation boundaries may be altered by 
congressional act. EPA agrees that any such issue would need to be 
addressed on a reservation-specific basis and that each relevant 
surplus lands statute would need to be evaluated individually. Such 
issues would thus be raised and addressed only in the context of a 
particular TAS application from a specific tribe. To provide additional 
clarity, however, EPA reiterates as a general matter that any land 
subject to TAS approval for CWA regulatory purposes must qualify as 
Indian reservation land as defined in CWA section 518(h)(1). Thus, 
consistent with EPA's longstanding approach, any non-reservation land 
could not be included in a CWA TAS approval even if it is surrounded by 
other land that does qualify as reservation. Any land located within 
the original exterior boundaries of a reservation that has lost its 
reservation status by virtue of an act of Congress could thus not be 
included in a CWA TAS approval. EPA has never approved CWA TAS over 
such non-reservation land, and would have no authority to do so. EPA 
thus disagrees with the tribal commenter that non-reservation 
inholdings may be included in a TAS approval under the CWA. This 
limitation is imposed in the statute, and nothing in today's final rule 
alters or affects EPA's approach on this issue. EPA does not believe, 
however, that the Agency should establish a separate definition for 
``fee lands'' that may be

[[Page 30192]]

included in a CWA TAS application. Section 518(h)(1) of the CWA already 
provides the applicable definition of federal Indian reservations for 
purposes of the statute, and there is no need for an additional 
definition. Further, as noted by the commenters, each surplus land act 
must be viewed on its own terms and in light of its own history and 
treatment. It would thus be inappropriate to establish a single one-
size-fits-all approach to lands that have passed to non-tribal members 
pursuant to such a statute. Only where such lands are determined to 
have lost their reservation status would they be outside the scope of 
TAS under the CWA. EPA also agrees with the state commenter that any 
issues relating to reservation boundaries will remain relevant to the 
TAS application process. Although today's rule does not reduce any 
burdens associated with resolving such issues, it also does not 
increase any such burdens. The need for tribes to demonstrate their 
reservation boundaries as part of a TAS application is beyond the scope 
of--and is not affected by--today's rule.
2. Treatment of Tribal Trust Lands
    Today's revised interpretation does not alter EPA's longstanding 
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. Under EPA's 
longstanding approach, 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. Tribes have always been able to seek TAS over such tribal 
trust lands for CWA purposes (several tribes have done so previously), 
and nothing in today's revised interpretation alters or affects their 
ability to do so.
Consideration of Comments
    One state commenter requested additional clarification regarding 
the treatment of tribal trust lands for CWA TAS purposes, and in 
particular inquired whether tribal trust lands outside the borders of a 
tribe's formal reservation would be included in the statute's 
definition of reservation. Although this issue is outside the scope 
of--and is not affected by--today's interpretive rule, EPA welcomes the 
opportunity to provide further clarity. EPA notes that some tribes may 
have tribal trust lands in addition to, and separate from, a formal 
reservation. For other tribes, such tribal trust lands may constitute 
the tribe's entire reservation land base. In either case, the tribal 
trust lands qualify as reservation lands for CWA TAS purposes. All such 
lands are thus within the borders of an Indian reservation for purposes 
of the statute.
3. Tribal Criminal Enforcement Authority
    EPA's revised statutory interpretation does not affect any existing 
limitations on tribal criminal enforcement authority. This interpretive 
rule 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 is aware that federal law imposes certain 
significant limitations on Indian tribes' ability to exercise criminal 
enforcement authority, particularly with regard to non-Indians. 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.
Consideration of Comments
    Two industry commenters asserted that the limitations on a tribe's 
authority to impose the criminal sanctions that are specified as 
potential penalties in the CWA render the tribe unable to demonstrate 
that it is capable of carrying out required program functions for 
purposes of TAS eligibility. This issue is outside the scope of--and is 
not affected by--today's interpretive rule. As noted above, this rule 
addresses only the civil regulatory authority of applicant tribes. The 
rule also does not address the capability element of TAS eligibility 
under the CWA. Nonetheless, EPA notes that it disagrees with the 
commenters' assertion--which, if correct, would presumably preclude any 
tribe from demonstrating TAS eligibility for a CWA regulatory program 
that includes a criminal enforcement component. As described above, 
EPA's existing TAS regulations provide that the federal government will 
exercise primary criminal enforcement authority where tribal authority 
is limited or precluded. These regulations were promulgated to avoid 
precisely the outcome asserted by the commenters. The regulations have 
been in place for decades, and they are unaffected by today's 
interpretive rule.
    EPA also disagrees with the commenters' assertion that the absence 
of any statutory language in section 518 addressing the limitations on 
tribal criminal authority is an indication that Congress did not intend 
to delegate authority to Indian tribes. EPA notes that the limitations 
on tribal criminal enforcement originate in legal principles 
established separate and apart from the CWA. Therefore, if the 
commenters were correct, Indian tribes could never demonstrate 
authority--whether inherent or congressionally delegated--to administer 
a CWA program that includes a criminal enforcement component without 
some statement in the statute affirming or otherwise addressing the 
exercise of criminal authority. Because the statute contains no such 
statement, this would render TAS impossible even under EPA's prior 
interpretation, and would thus make the CWA TAS provision internally 
inconsistent and in significant part a nullity. Under the commenters' 
approach, section 518 would, on the one hand, authorize TAS for 
programs that include criminal enforcement, while simultaneously 
precluding such TAS by virtue of an absence of congressional 
explanation of how criminal enforcement will be exercised. EPA 
disagrees that this could reflect Congress' intent. EPA also notes that 
the Agency has already interpreted the CAA tribal provision as 
including a congressional delegation of civil regulatory authority to 
tribes over their entire reservations, and that interpretation has been 
upheld in court. Like the CWA, the CAA authorizes TAS for programs that 
include a criminal enforcement component without separately addressing 
the exercise of such authority during program implementation. Under 
both statutes, EPA has exercised its authority to address this 
programmatic issue through long-established regulations that retain 
primary criminal enforcement with the federal government.
4. Special Circumstances
    There could be rare instances where special circumstances limit or 
preclude a particular tribe's ability to accept or

[[Page 30193]]

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\
---------------------------------------------------------------------------

    \12\ EPA takes no position in this interpretive rule regarding 
whether any particular tribe or Indian reservation is subject to any 
potential impediment relating to 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.
---------------------------------------------------------------------------

    The application requirements of existing CWA TAS regulations 
already provide for 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). 
Under today's rule, the requirement for a legal counsel's statement 
continues to apply and ensures 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.C.6, existing CWA TAS and program regulations 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.
Consideration of Comments
    EPA received several comments asserting that special circumstances 
limit particular tribes' ability to obtain TAS to regulate under the 
CWA. For instance, one state asserted that the tribes located within 
the state are precluded under federal laws specific to those tribes 
from obtaining TAS for CWA regulatory programs. Another state asserted 
that a tribe located within the state is precluded by a federal statute 
specific to that tribe from regulating reservation land that is owned 
in fee by nonmembers of the tribe. The state noted that if that tribe 
applied to regulate such fee lands, the state would avail itself of the 
opportunity under EPA's regulations to submit comments and would assert 
that the cited federal law affects the tribe's ability to exercise such 
authority. One local government commented that the geographic extent of 
a tribe's governing authority does not include the local government and 
provided historical information intended to support its position. And 
two industry commenters asserted that the tribe upon whose reservation 
they are located has entered into binding agreements waiving the 
tribe's right to regulate the commenters' facilities, thus rendering 
the tribe unable to obtain TAS for CWA regulatory programs over those 
facilities.
    EPA appreciates the information about special circumstances 
provided in these comments. Importantly, the precise outcome of any 
such circumstance could only be determined in the context of a 
particular tribe's TAS application and upon a full record of 
information addressing the issue. The substance of these specific 
situations is thus outside the scope of--and is not affected by--
today's rule. However, the comments are both illustrative and 
instructive regarding the types of special circumstances and 
jurisdictional issues that may affect a tribe's ability to carry out 
the congressional delegation of authority in the CWA tribal provision. 
Other federal statutes may, for instance, limit a particular tribe's or 
group of tribes' ability to participate, in whole or in part, in CWA 
regulation through the TAS process. In addition, before approving a 
tribe's TAS eligibility, EPA would carefully consider whether any 
binding contractual arrangements or other legal documents such as 
tribal charters or constitutions might affect the tribe's regulatory 
authority generally, or with regard to any specific members of the 
regulated community. Finally, the geographic scope of the reservation 
boundaries over which a tribe asserts authority would continue to be a 
relevant and appropriate issue for consideration in the TAS process. As 
explained elsewhere, EPA's existing TAS regulations require applicant 
tribes to address these types of issues in their jurisdictional 
statements and provide states and other appropriate entities the 
opportunity to comment and inform EPA of any potential impediments to 
tribal regulatory authority. These comment opportunities help ensure 
that EPA's decision making is well informed. Additional available 
information regarding certain of these special circumstances is 
provided in EPA's Response to Comments document included in the docket 
for this rule.
    During pre-proposal outreach and again following proposal of the 
rule, EPA received comments from the State of Oklahoma regarding 
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). Because this provision of federal law 
expressly addresses TAS under EPA's statutes, including the CWA, EPA 
explained in the proposal that section 10211(b) established a unique 
TAS requirement with respect to Indian tribes located in the State of 
Oklahoma. Under section 10211(b), tribes in Oklahoma seeking TAS under 
a statute administered by 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. Today's rule relates 
solely to the interpretation of an existing CWA TAS requirement; it 
thus has no effect on the separate TAS requirement of section 10211(b) 
of SAFETEA. In its comments on the proposal, the State of Oklahoma 
requested additional information regarding the process or sequence of 
events that will be used to ensure that this provision of SAFETEA is 
satisfied in the context of particular tribal TAS applications that may 
be submitted following finalization of today's interpretive rule. EPA 
notes that section 10211(b) expressly contains certain procedural 
requirements--i.e., the state/tribal cooperative agreement must be 
subject to EPA review and approval after notice and an opportunity for 
public hearing. Nothing in today's rule alters or affects those 
requirements. Further, because the SAFETEA requirement must be 
satisfied for a tribe in Oklahoma to obtain TAS to regulate under an 
EPA statute, the final cooperative agreement must be fully executed and 
approved by EPA before EPA can approve a regulatory TAS application. 
Because the State of Oklahoma is a required signatory to the agreement, 
this sequence of events

[[Page 30194]]

ensures that the State will have a full opportunity to participate in 
the TAS process--separate and apart from opportunities that states have 
through EPA's existing TAS notice and comment procedures. Nothing in 
today's interpretive rule alters or affects Oklahoma's participation in 
the SAFETEA cooperative agreement or the requirement that the agreement 
be in place as a prerequisite to TAS for a regulatory program. EPA 
notes that there are no regulations establishing procedures for the 
State and applicant tribes to negotiate SAFETEA cooperative agreements 
or for tribes to submit, and EPA to review, such agreements. There is 
thus flexibility for the State and applicant tribes in Oklahoma to work 
together to develop these agreements as they deem appropriate.
5. Tribal Inherent Regulatory Authority
    With today's rule, EPA is not intending to assess 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 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.
    Today's rule does not affect these prior TAS approvals. The rule 
does, however, modify EPA's approach going forward to be consistent 
with Congress' intent to delegate civil regulatory authority to 
eligible tribes. It relieves tribes of the administrative burden 
associated with demonstrating their inherent regulatory authority in 
the TAS application process. It does not, however, alter EPA's prior 
views regarding the extent of tribal inherent regulatory authority.\13\
---------------------------------------------------------------------------

    \13\ In promulgating the CAA Tribal Authority Rule, EPA 
similarly noted its 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.
---------------------------------------------------------------------------

Consideration of Comments
    All of the tribal commenters fully support EPA's interpretive rule. 
Several tribes also noted their view that tribes possess inherent 
authority to regulate the quality of their reservation waters. EPA 
appreciates these comments and reiterates that today's revised 
interpretation of the CWA tribal provision is intended solely to 
effectuate the plain intent of Congress to delegate civil authority to 
tribes to regulate water resources on their entire reservations under 
the CWA. Today's rule is not intended as an assessment of the scope of 
retained tribal inherent authority.
    Several state, local government, and industry commenters asserted 
that under federal law, tribal inherent regulatory authority over 
nonmembers of the tribe is limited and that the U.S. Supreme Court has 
consistently recognized and affirmed such limitations. The commenters 
appear to assert that such limitations argue against EPA's revised 
interpretation of the CWA tribal provision. EPA disagrees. EPA is aware 
of Supreme Court jurisprudence addressing retained tribal inherent 
regulatory authority, particularly with regard to such authority as 
applied to non-tribal members. However, as described above in sections 
IV and V.A, federal law also recognizes Congress' authority to delegate 
jurisdiction to tribes to regulate throughout their reservations, 
including regulation of the activities of non-tribal members. A 
relevant reviewing federal court has already upheld EPA's 
interpretation that the Clean Air Act includes such a delegation, and 
the plain language of CWA section 518 supports the same approach. 
Issues regarding tribal inherent authority are distinct from EPA's 
interpretation of the express statutory language in section 518.
6. Existing Regulatory Requirements
    Because today's revised statutory interpretation is consistent with 
existing CWA TAS regulatory requirements, EPA has not revised any 
regulatory text in the Code of Federal Regulations.
a. TAS Requirements
    Consistent with today's rule, tribes will rely on the congressional 
delegation of authority in section 518 as the source of their authority 
to regulate water quality on their reservations. Under the TAS 
regulations identified in section II.B, tribes would still need to 
address and overcome any special circumstances that might affect their 
ability to obtain TAS for a CWA regulatory program (see section V.C.4), 
and the existing TAS application regulations require submission of a 
legal statement that would cover such issues. Apart from such special 
circumstances, the main focus in determining the extent of an applicant 
tribe's jurisdiction for CWA regulatory purposes will likely be 
identifying the geographic boundaries of the Indian reservation area 
(whether a formal or informal reservation) over which the 
congressionally delegated authority would apply.\14\ 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 continue to apply and ensure that each 
tribe applying for a CWA regulatory program submits information 
adequate to demonstrate the location and boundaries of the subject 
reservation.
---------------------------------------------------------------------------

    \14\ The jurisdictional inquiry into the geographic scope of a 
tribe's TAS application--i.e., the boundary of the reservation area 
that a tribe seeks to regulate--imposes 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 is 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 
rule does not alter the opportunity to do so for future 
applications, or any burden attendant to preparing and submitting 
such comments.
---------------------------------------------------------------------------

    The existing regulations also provide appropriate opportunities for 
potentially interested entities to comment 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.
Consideration of Comments
    EPA received comments from local governments requesting that EPA 
ensure

[[Page 30195]]

direct notice to such governments of tribal TAS applications for the 
CWA WQS program. EPA appreciates that certain local governments may 
wish to comment on tribal assertions of authority to administer CWA 
WQS. However, any issues regarding the notice and comment process in 
EPA's TAS regulations for that program are beyond the scope of this 
interpretive rule, which addresses solely EPA's interpretation of 
section 518 as a congressional delegation of authority. EPA has 
retained the regulations governing the notice and comment process in 
their entirety and believes that the process provides appropriate 
notice to potentially interested entities in the area of an applicant 
Indian tribe's reservation. The process has proven to be effective in 
ensuring that relevant issues regarding tribal jurisdiction are raised 
to EPA during the TAS decision making process.
b. Relationship to Program Approvals
    The existing TAS regulations and this rule relate solely to the 
applications of Indian tribes for TAS eligibility for the purpose of 
administering CWA regulatory programs. They do not provide substantive 
approval of an authorized tribe's actual CWA regulatory program. Each 
program has its own regulations specifying how states and authorized 
tribes are to apply for and administer the program.
    EPA's TAS regulations for the CWA section 402, 404 and 405 
permitting programs require an analysis of tribal jurisdiction as part 
of the program approval process under 40 CFR parts 123, 233 and 501 
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.
7. Effects on Tribal TAS Applications
    Today's interpretive rule streamlines the TAS application and 
review process for tribes seeking eligibility to administer CWA 
regulatory programs. The rule significantly reduces the expected time 
and effort for tribes to develop and EPA to review TAS applications and 
could encourage more tribes to apply for TAS for CWA regulatory 
programs. As stated above (sections V.C.4 and V.C.6), applicant tribes 
would still need to identify their reservation boundaries and address 
any special circumstances potentially affecting their ability to 
effectuate the congressional delegation of authority and obtain TAS to 
regulate under the CWA.
    Any EPA approval of a TAS application for a CWA regulatory program 
after May 16, 2016 will be based on the delegation of authority from 
Congress as the relevant source of authority supporting the tribe's 
eligibility. Any new tribal TAS application for a CWA regulatory 
program submitted after May 16, 2016 will need to be consistent with 
the interpretation of section 518 expressed in this rule. For any 
pending TAS application for CWA regulatory programs as of May 16, 2016, 
EPA will consult with the applicant tribe to assist it in amending its 
application if necessary to be consistent with this rule and to address 
any process issues.
8. Effects on EPA-Approved State Programs
    EPA's rule has 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, and an EPA finding of that 
state authority for those Indian country waters, EPA has generally 
excluded Indian country from its approvals of state regulatory programs 
under the CWA.
    The revised reinterpretation of section 518 relates solely to the 
exercise of jurisdiction by Indian tribes on their reservations; it has 
no effect on the scope of existing CWA regulatory programs administered 
by states outside of Indian country. It neither diminishes nor enlarges 
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 rule does not 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. Today's rule does not affect that process; the process 
remains available as needed to address potential state/tribal issues.
Consideration of Comments
    EPA received comments from several states, a local government, and 
a local government association regarding potential effects of the rule 
on state water quality programs. Some comments asserted that the rule 
would improperly displace existing state authority to protect water 
quality in certain Indian reservation areas--e.g., lands owned in fee 
by nonmembers of a tribe, or submerged lands owned by the states. 
Related comments argued that the rule is unnecessary because the states 
are already implementing clean water programs over such areas. One 
state commenter also questioned whether the rule would preempt states' 
ability to apply state water quality laws, particularly with respect to 
non-tribal members on non-tribal land. Another state commenter cited 
separate federal statutes that grant the state environmental regulatory 
authority, including authority to administer CWA programs, in Indian 
territories, and asserted that the rule would therefore be unlawful in 
that state to the extent it could alter the jurisdictional arrangement 
of those other federal laws.
    EPA appreciates these comments and wishes to further clarify the 
Agency's view that the revised interpretation announced today would not 
affect existing EPA-approved state programs or other state authorities. 
Importantly, it is EPA's position that the congressional delegation of 
jurisdiction in CWA section 518 relates solely to the authority of 
tribes to administer regulatory programs under the CWA. It does not 
address or affect (by enlarging or diminishing) the authority of any 
entity--tribe or state--to apply any water quality or other program 
established under its laws outside the scope of the federal CWA. Any 
question regarding whether a state has sufficient authority to apply 
such state laws to non-tribal members on their reservation fee lands 
(or to otherwise apply such laws on an Indian reservation), is outside 
the scope of today's rule and would be unaffected by the rule. EPA does 
not, for instance, view Congress' decision to delegate to tribes the 
authority to regulate their reservations under the CWA as increasing or 
altering tribal authority to implement any other tribal law or 
program--including non-CWA tribal water quality laws. Nor does EPA take 
the position that the congressional delegation of CWA

[[Page 30196]]

jurisdiction to tribes serves to preempt application of any state law 
on an Indian reservation to the extent such state law is premised on 
authority found outside the CWA. EPA notes that the Agency has 
similarly taken no position that the congressional delegation of 
authority in the CAA tribal provision acts as a preemption of state 
authority to apply state air quality laws on Indian reservations to the 
extent such laws are outside the purview of the federal CAA. Issues 
regarding a state's authority to implement environmental quality 
programs on reservation fee (or other) lands where such programs are 
outside the scope of the federal statutes EPA administers are beyond 
the scope of EPA's oversight and are unaffected by today's rule.
    With regard to state water quality programs approved by EPA under 
the CWA, EPA disagrees with the commenters' assertion that today's rule 
could affect or displace existing state authorities. As noted above, 
under principles of federal law, states generally lack authority to 
regulate on Indian reservations. EPA has thus generally excluded such 
lands from the Agency's approval of state programs submitted to EPA 
under the CWA (and other environmental laws administered by EPA). It is 
thus generally the case that states are not approved by EPA in the 
first instance to administer CWA regulatory programs on reservations. 
In most cases, therefore, there are no existing EPA-approved state CWA 
programs on reservations that could be affected or displaced by a 
congressional delegation of authority to Indian tribes.
    States may apply to EPA for CWA program approval over reservation 
areas. In such cases, the state would need to demonstrate a source of 
regulatory authority premised in federal law. Such a demonstration 
would be needed irrespective of whether the reservation land at issue 
is owned by non-tribal members or by the state itself. In rare 
circumstances, EPA has in the past approved certain state CWA 
regulatory programs on Indian reservations. In each case, the relevant 
state's authority has been based on a separate federal statute 
expressly granting the state jurisdiction to regulate on the 
reservation. Today's rule does not affect such EPA-approved state 
programs or otherwise alter the apportionment of jurisdiction 
established in those other federal laws. Although each case must be 
assessed in light of its own statutory arrangement, EPA generally 
believes that CWA section 518 would not affect a separate statutory 
scheme that is specifically applicable to a particular state or tribe 
and that expressly provides for state environmental regulatory 
jurisdiction on Indian reservation lands and/or expressly precludes 
tribes from asserting such authority. This does not mean, as asserted 
by one state commenter, that today's rule would be unlawful in such a 
state. It simply means that the congressional delegation of authority 
in section 518 may be precluded by a separate federal law, with 
jurisdiction to administer CWA regulatory programs being granted to the 
state under that law. As described above in section V.C.4, EPA 
recognizes that such unusual circumstances may affect certain tribes' 
ability to effectuate the congressional delegation of authority or 
otherwise obtain TAS to regulate under the CWA. A situation where a 
separate federal law specifically apportions jurisdiction among a 
particular state and the tribe(s) located in such state could be one 
example of such a circumstance.

VI. How does the rule affect existing EPA guidance to tribes seeking to 
administer CWA regulatory programs?

    As noted in section V.C.6, today's rule does not revise any 
regulatory text. However, it does render some of EPA's existing 
guidance obsolete. For example, parts of a 1998 memorandum to EPA staff 
(the ``Cannon-Perciasepe Memorandum'') \15\ provided guidance for EPA's 
reviews of tribal assertions of inherent authority to administer CWA 
regulatory programs. Among other things, 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 an applicant tribe's assertion of inherent authority over 
nonmember activities on reservation fee lands. Cannon-Perciasepe 
Memorandum, p. 6. The memorandum also provided detailed guidance for 
implementing the Montana test, which, as described above, relates to 
inherent tribal jurisdiction over nonmember activity. Cannon-Perciasepe 
Memorandum, Attachment C.\16\ Because applicant tribes will no longer 
need to demonstrate inherent jurisdiction, these parts of the guidance 
are no longer relevant for TAS applications for CWA regulatory 
programs, and there is no further utility for EPA to develop or seek 
comment on factual findings relating to tribal inherent authority.
---------------------------------------------------------------------------

    \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 also 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.
---------------------------------------------------------------------------

    EPA intends to update its internal procedures and its training and 
guidance for applicant tribes to reflect these changes consistent with 
the express congressional delegation of authority to eligible tribes.

VII. Economic Analysis

    This rule entails no significant cost. Its only effect will be to 
reduce the administrative burden for a tribe applying in the future 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 VIII.B (Paperwork Reduction 
Act).

VIII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www.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 interpretive rule 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)

    The information collection activities in this interpretive rule 
have been submitted for approval to OMB under the PRA. The Information 
Collection Request (ICR) document that EPA prepared has been assigned 
EPA ICR number 2515.02. You can find a copy of the ICR in the docket 
for this rule, and it is briefly summarized here. The information 
collection requirements are not enforceable until OMB approves them.
    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 rule streamlines the application by revising EPA's 
interpretation of section 518 to eliminate the need for an applicant 
tribe to demonstrate its inherent regulatory authority--

[[Page 30197]]

including demonstrating that it meets the Montana test where relevant--
which had been an element of TAS applications not included in the 
statute. As described in the ICR, this rule reduces the burden by an 
estimated 583 staff hours for a typical tribe, or 27 percent, and 
reduces 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 rule.
    Estimated number of respondents: The total potential pool of 
respondents is over 300 tribes with reservations. Although there are 
567 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 will 
apply for TAS for a CWA regulatory program following this rule, an 
increase from the existing rate of about 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: $674,946, including tribal staff salaries and 
the cost of contractors supporting tribal applicants. This rule 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. When OMB approves 
this ICR, the Agency will announce that approval in the Federal 
Register and publish a technical amendment to 40 CFR part 9 to display 
the OMB control number for the approved information collection 
activities contained in this final rule.

C. Regulatory Flexibility Act (RFA)

    I certify that this interpretive rule will not have a significant 
economic impact on a substantial number of small entities under the 
RFA. This rule will not impose any requirements on small entities. This 
rule affects only Indian tribes that seek to administer CWA regulatory 
programs.

D. Unfunded Mandates Reform Act (UMRA)

    This interpretive rule 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 rule imposes no enforceable duty 
on any state, local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This interpretive rule does not have federalism implications. It 
will 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 rule applies only to tribal governments that seek eligibility 
to administer CWA regulatory programs. Although it could be of interest 
to some state governments, it does not apply directly to any state 
government or to any other entity. As discussed in section V.C.8, the 
rule has 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 before and after proposal for 
consideration in this rulemaking. By letter dated June 18, 2014, EPA 
invited ten national and regional state associations \17\ 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 and their members as well as 
certain individual states during the months of June-September, 2014. By 
letter dated August 7, 2015, to the same groups, EPA resumed 
consultation after the proposal, including conducting a webinar on 
September 3, 2015. 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    In the public comments, two states expressed support for tribal 
opportunities to obtain TAS. Some participants disagreed with or 
questioned in whole or in part the Agency's rationale for the 
reinterpretation. Others questioned whether the proposal would affect 
the geographic scope of tribal authority under the CWA and how the 
proposal would affect a state's ability to challenge a tribe's 
application. Some states also had questions about issues unique to 
their situations.
    EPA considered all of the state comments in developing this final 
interpretive rule. EPA's responses are included in sections IV and V of 
this rule and in the Response to Comments document in the docket for 
this rulemaking.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This interpretive rule has tribal implications because it will 
directly affect tribes applying in the future to administer CWA 
regulatory programs. However, because it neither imposes substantial 
direct compliance costs on federally recognized tribal governments, nor 
preempts tribal law, tribal consultation was not required by Executive 
Order 13175. In any event, EPA consulted and coordinated with tribal 
officials under the EPA Policy on Consultation and Coordination with

[[Page 30198]]

Indian Tribes early in the process of developing this rule, and again 
after its proposal, 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 before 
proposing this rule by sending a ``Notification of Consultation and 
Coordination'' letter on April 18, 2014, to all of the 566 then 
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 20 pre-proposal comment letters to EPA. On August 7, 2015, EPA 
resumed the consultation and coordination process with tribes. A total 
of 44 tribal representatives participated in webinars in September 
2015.
    EPA received 21 comment letters from tribes and tribal associations 
during the public comment period. All tribal comments supported the 
proposal. Some tribes had questions about how EPA would handle 
reservation land status and boundary matters. Some comments urged EPA 
to help find solutions to tribal funding limitations. EPA 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 a CWA regulatory 
program.
    EPA considered all of the tribal comments in developing this 
interpretive rule. EPA's responses are included in sections IV and V of 
this rule and in the Response to Comments document in the docket for 
this rulemaking,

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 may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This interpretive rule 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 interpretive rule 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

    The human health or environmental risks addressed by this action 
will not have potential disproportionately high and adverse human 
health or environmental effects on minority, low-income, or indigenous 
populations. This rule affects the procedures tribes must follow to 
seek TAS for CWA regulatory purposes and does not directly affect the 
level of environmental protection.

K. Congressional Review Act (CRA)

    This interpretive rule is exempt from the CRA because it is a rule 
of agency organization, procedure or practice that does not 
substantially affect the rights or obligations of non-agency parties.

    Dated: May 5, 2016.
Gina McCarthy,
Administrator.
[FR Doc. 2016-11511 Filed 5-13-16; 8:45 am]
 BILLING CODE 6560-50-P