Indian Tribes: EPA Should Reduce the Review Time for Tribal
Requests to Manage Environmental Programs (31-OCT-05, GAO-06-95).
The Clean Water, Safe Drinking Water, and Clean Air Acts
authorize the Environmental Protection Agency (EPA) to treat
eligible Indian tribes in the same manner as a state (referred to
as TAS) for implementing and managing environmental programs on
Indian lands. Some states are concerned that tribes receiving
authority to manage these programs may set standards that exceed
the state standards and hinder states' economic development. GAO
was asked to report on the (1) extent to which EPA has followed
its processes for reviewing and approving tribal applications for
TAS and program authorization under the three acts, (2) programs
EPA uses to fund tribal environmental activities and the amount
of funds provided to tribes between fiscal years 2002 and 2004,
and (3) types of disagreements between parties over EPA's
approval of TAS status and program authorization and methods used
to address these disagreements.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-06-95
ACCNO: A40678
TITLE: Indian Tribes: EPA Should Reduce the Review Time for
Tribal Requests to Manage Environmental Programs
DATE: 10/31/2005
SUBJECT: Environmental law
Environmental legislation
Environmental monitoring
Environmental policies
Federal regulations
Federal/state relations
Indian affairs legislation
Indian lands
Jurisdictional authority
Native Americans
Policy evaluation
Standards
Timeliness
Transparency
Indian General Assistance Program
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GAO-06-95
United States Government Accountability Office
GAO Report to Congressional Requesters
October 2005
INDIAN TRIBES
EPA Should Reduce the Review Time for Tribal Requests to Manage Environmental
Programs
a
GAO-06-95
[IMG]
October 2005
INDIAN TRIBES
EPA Should Reduce the Review Time for Tribal Requests to Manage Environmental
Programs
What GAO Found
EPA generally followed its established processes for reviewing and
approving tribal requests for TAS and program authority under the three
acts, according to GAO's analysis of approved requests. However, the
review time for approving these requests generally took from about 1 year
to more than 4 years. In addition, nearly all of the requests currently
under review were submitted more than 1 year ago. Key factors contributing
to the lengthy reviews include the multiple reviews required by the
agency's regional and headquarters offices, a lack of emphasis within the
agency to complete the reviews in a timely manner, and turnover of tribal
and EPA staff. Moreover, EPA has not developed a written strategy that
establishes overall time frames for reviewing requests. EPA officials
agreed that more could be done to improve the timeliness of the review
process but said that complex issues-including evolving Indian case law
and jurisdictional issues-may have contributed to the lengthy reviews.
Furthermore, EPA's review process is not always transparent on the status
of tribes' TAS requests. Lack of transparency limits tribes' understanding
of what issues may be delaying EPA's approval and what actions, if any,
may be needed to address the issues.
EPA provided Indian tribes about $360 million in grants to fund a broad
range of tribal environmental activities from fiscal years 2002 through
2004. About half of these funds were distributed through two acts: the
Indian Environmental General Assistance Program Act (about $114
million)-to help build capacity to administer environmental programs-and
the Clean Water Act (about $66 million)-to help prevent and reduce water
pollution.
Since 1986, when Congress began amending the three environmental acts to
allow TAS for tribes, disagreements over land boundaries and environmental
standards have arisen between tribes, states, and others. Disagreements
have been addressed through litigation, collaboration, and federal laws.
States Where Tribes Are Approved for Program Authority, as of June 2005
United States Government Accountability Office
Contents
Letter
Results in Brief
Background
EPA's Approval Process for TAS and Program Authorization Was
Generally Followed, but Some TAS Approvals Were Delayed by Lengthy Reviews
EPA Provides a Variety of Grants to Help Tribes Manage Their Environmental
Programs Differences between Tribes and States over Environmental Issues
Have Been Addressed in Various Ways Conclusion Recommendation for
Executive Action Agency Comments
1 5 7
12
21
24 27 28 28
Appendixes
Appendix I: Appendix II:
Appendix III: Appendix IV:
Appendix V: Appendix VI: Objectives, Scope, and Methodology
Tribal Entities and Dates Requests Were Submitted and Approved for TAS, as
of June 2005
TAS Requests under Review, as of June 2005
Elapsed Time for EPA's Approval of Tribes' Water Quality Standards for 18
Clean Water Act Cases Reviewed
Comments from the Environmental Protection Agency
GAO Contact and Staff Acknowledgments
30
33 35
37 38 39
Table Table 1: Grant Dollars Provided to Tribes under Four EPA Acts for
Fiscal Years 2002 through 2004
Figures Figure 1:
Figure 2: Figure 3: Figure 4:
States Where Tribes Have Submitted and Been Approved
for TAS under the Three Environmental Acts, as of June
2005 10
Review Times for the 32 Requests Approved for TAS,
1991-2005 15
Review Time for TAS Requests under Review, 1994-June
2005 16
Number of TAS Requests Submitted and under Review,
1992-June 2005 17
Contents
Figure 5: Elapsed Time for EPA's Approval of Tribes' Water Quality
Standards for 18 Clean Water Act Cases Reviewed 21
This is a work of the U.S. government and is not subject to copyright
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A
United States Government Accountability Office Washington, D.C. 20548
October 31, 2005
The Honorable James M. Inhofe Chairman, Committee on Environment and
Public Works United States Senate
The Honorable John McCain Chairman, Committee on Indian Affairs United
States Senate
The Clean Water Act, Safe Drinking Water Act, and Clean Air Act authorize
the Environmental Protection Agency (EPA) to treat Indian tribes in the
same manner as it does states,1 referred to as TAS,2 for the purposes of
implementing these laws on tribal lands. Recent lawsuits and disagreements
between parties over EPA's approval of tribes' TAS status and authority to
implement and enforce a given environmental program (program authority)
highlight the sensitivities associated with TAS approval. On the one hand,
tribes want to be treated as states and assume program responsibilities to
protect their environmental resources because they are sovereign
governments and have specific knowledge of their environmental needs.3
Tribes also generally believe that TAS status and program authority are
important steps in addressing the potential impacts of economic
development affecting their land. On the other hand, in some cases, states
are concerned that tribes with program authority may impose standards that
are more stringent than the state's, resulting in a patchwork of standards
within the state and potentially hindering the state's economic
development plans. In addition, conflicts sometimes arise between states
and tribes over the extent of tribal jurisdiction in cases where Indian
lands are no longer located within formal reservations or in cases in
which nontribe members live within reservation areas.
1Under these laws, EPA may authorize states to establish their own
standards and carry out a state program in lieu of the federal program.
State standards must meet or exceed federal requirements.
2The acts generally use the term "treat as states." EPA and most Indian
tribes prefer to use the term "treatment in the same manner as a state."
3As sovereign governments, Indian tribes have inherent authority to
establish tribal environmental programs under their own laws. However, to
administer federal environmental programs on their land, tribes must
obtain approval from EPA.
EPA's Indian policy, established in 1984, states, among other things, that
EPA "will take affirmative steps to encourage and assist tribes in
assuming regulatory and program management responsibilities...within the
constraints of its authority and resources." As such, EPA offers several
financial assistance programs to tribes.4 For example, the Indian General
Assistance Program, established under the Indian Environmental General
Assistance Program Act of 1992, supports tribes' efforts to develop their
capability to implement environmental programs. In addition, grants under
the Clean Water, Safe Drinking Water, and Clean Air Acts help tribes to
develop water quality programs, create drinking water protection programs,
and plan and manage air quality activities. Some of these grants require
TAS status, others do not.
To be approved for TAS, which is a prerequisite for obtaining program
authority under the three environmental acts, a tribe must demonstrate its
eligibility by showing that it (1) is officially recognized by the
Secretary of the Interior, (2) has a governing body that is currently
carrying out substantial governmental duties and powers over a defined
area, (3) has jurisdiction over the land where the resources are located,5
and (4) is capable of administering the program. Once EPA receives a
tribe's application for TAS, it has 30 days to notify appropriate
governmental entities of the tribe's request.
After EPA approves a tribe's TAS request, the tribe needs to obtain EPA
authorization to implement and enforce a given program. EPA generally
recommends that tribes adopt the standards of the adjacent states when
first setting tribal standards. However, EPA does not track the extent to
which tribes adopt adjacent state standards. Under its regulations for
implementing the Clean Water Act, EPA requires a tribe to hold a public
hearing so that interested parties can review and comment on the tribe's
4EPA also provides financial assistance to other entities such as state
and local governments, educational institutions, and not-for-profit
organizations.
5The specific language pertaining to jurisdiction under the Clean Water
Act states that "the functions to be exercised by the Indian tribe pertain
to the management and protection of water resources which are held by an
Indian tribe...or otherwise within the borders of an Indian reservation."
33 U.S.C. S: 1377(e)(2). The specific language pertaining to jurisdiction
under the Safe Drinking Water Act states that "the functions to be
exercised by the Indian Tribe are within the area of the Tribal
government's jurisdiction." 42 U.S.C. S: 300j11(b)(1)(B). The specific
language pertaining to jurisdiction under the Clean Air Act states that
"the functions to be exercised by the Indian tribe pertain to the
management and protection of air resources within the exterior boundaries
of the reservation or other areas within the tribe's jurisdiction." 42
U.S.C. S:7601(d)(2)(B).
proposed water quality standards before EPA approves them.6 EPA's
regulations under the Safe Drinking Water Act require the agency to
announce in the Federal Register that the tribe has the authority to
administer a program and allow 30 days to request a public hearing. Under
its regulations for implementing the Clean Air Act's operating permits
program,7 EPA must also announce its approval for a tribe to administer a
program in the Federal Register; however, the notice is not subject to
public comment.
There are 562 federally recognized tribes.8 Fifty-seven tribal entities
have requested TAS in order to obtain program authority under at least one
of the three acts, and some for multiple programs, for a total of 61
requests.9 EPA has approved 32 of these requests and is still reviewing
29. Thirty of the approved TAS requests were to implement a clean water
program, 1 was for a safe drinking water program, and 1 was for a clean
air program. For 26 of the 32 approved TAS requests, tribes have also
received EPA approval of water quality standards, or authorization to
administer public water systems or issue and enforce federal air permits.
You asked us to report on the (1) extent to which EPA has followed its
processes for reviewing and approving tribal requests for treatment as a
state and program authorization under the Clean Water, the Safe Drinking
Water, and the Clean Air Acts; (2) programs EPA uses to fund tribal
environmental activities and the amount of funding it has provided to
tribes between fiscal years 2002 and 2004; and (3) types of disagreements
that have occurred between parties over EPA's approval of tribes' TAS
status
6The regulations discussed in this paragraph also apply to states.
7For the purposes of our report, we only looked at TAS requests for Part
71-operating permits under the Clean Air Act. Indian tribes have also been
approved for treatment as an affected state under title V of the Clean Air
Act, which allows them to review and comment on permits issued by
neighboring states to facilities having the potential to impact tribal
lands.
868 Fed. Reg. 68180 (Dec. 5, 2003).
9Tribal entities may include tribes as well as bands or Indian communities
within a tribe. For example, the Chippewa tribe in Minnesota includes the
Grand Portage Band, the Fond du Lac Band, the Bois Forte Band, the Mille
Lacs Band, the Leech Lake Band, and the White Earth Band. For purposes of
this report, we refer to these entities as tribes. The tribes referred to
in these analyses are tribes that have submitted TAS applications for
program authority. The analyses do not include tribes that have requested
TAS status to secure certain grants.
and program authorization and the methods that have been used to address
these disagreements.
To address these issues, we met with selected officials from EPA and the
Department of the Interior's Bureau of Indian Affairs in Washington, D.C.,
and three EPA regions-in Region 6 (Dallas), Region 9 (San Francisco), and
Region 10 (Seattle). We chose these regions because they had the largest
number of approvals for program authority-18 approvals under the Clean
Water Act, and 1 each under the Safe Drinking Water and Clean Air Acts. We
reviewed a total of 20 case files in detail in these three regions-
accounting for 77 percent of all approved tribal requests (20 of 26) for
program authorization under the three acts-to determine whether EPA had
followed established TAS and program authorization processes. Our case
file review included, among other things, an assessment of whether EPA met
its requirements to notify appropriate governmental entities of a tribe's
request within 30 days of receipt.10 We also reviewed data provided by EPA
on another 12 TAS and/or program authority approvals, bringing the total
number of TAS approvals reviewed to 32. We focused primarily on the Clean
Water Act because most activity has occurred under the act. However, we
also reviewed EPA's process for reviewing and approving tribal requests
under the Safe Drinking Water and Clean Air Acts. In addition, we met with
state officials and representatives of Indian tribes in Arizona, New
Mexico, Oklahoma, and Washington. To address the second objective, we
analyzed EPA's Integrated Grants Management System grants data for tribes
that have received financial assistance for environmental programs for
fiscal years 2002 through 2004.11 We assessed the reliability of EPA's
grants data system and found it sufficiently reliable for the purposes of
our report. Finally, we interviewed selected EPA, state, and tribal
officials to discuss the methods used to address issues associated with
areas of possible disagreements, such as jurisdictional boundaries, that
interested parties may raise. A more detailed description of our scope and
methodology is presented in appendix I. We performed our work between
November 2004 and October 2005, in accordance with generally accepted
government auditing standards.
10See 40 C.F.R. S:131.8 for the Clean Water Act and 40 C.F.R. S:49.9 for
the Clean Air Act.
11We obtained the data from EPA's Integrated Grants Management System, a
computer database used by the agency to manage and report on information
about grants.
Results in Brief EPA followed its processes in most respects for approving
tribal requests for TAS status and program authorization for the 20 cases
we reviewed, but we found some lengthy delays in these processes.
Specifically, for these 20 cases, EPA verified that the tribe is federally
recognized, has authority within its tribal boundaries, and is technically
capable of carrying out the requested environmental program. However, in
17 of the 20 cases, EPA did not notify affected governmental entities
within its established 30 day time frame of a tribe's TAS request, but
instead took about 5 months, on average. Moreover, EPA has not established
overall time frames for reviewing requests, and for the 20 cases, 10 took
more than 1 year for approval and 2 took more than 4 years. Furthermore,
the lack of transparency of EPA's review process may hinder a tribe's
understanding of the status of its request and what actions, if any, may
be needed. Multiple reviews, a lack of emphasis within EPA about the
timeliness of the TAS review, and turnover in EPA and tribal staffs
contributed to delays in the approval process. EPA officials agreed that
more could be done to improve the timeliness of its review process and
stated that several complex issues, including evolving Indian case law and
jurisdictional issues, contributed to the length of some reviews. Delays
in the approval process may hinder a tribe's efforts to control its
environmental resources. Tribal officials in one state told us that they
have not submitted a TAS request because of EPA's lengthy review process.
EPA has recently begun working with its regions to update the status of
pending TAS requests and to address how best to expedite reviews. To
improve EPA's process for reviewing tribal requests for TAS for program
authorization, we are recommending that the Administrator of EPA develop a
written strategy with estimated time frames for reviewing and approving
tribal requests for TAS for program authorization under the three acts and
periodically provide status reports to affected tribes.
For fiscal years 2002 through 2004, EPA provided Indian tribes about $360
million in grants to fund a broad range of environmental activities. Half
of the funds were distributed through two specific programs: (1) the
Indian General Assistance Program to help tribes build capacity to
administer environmental programs, including planning, developing, and
establishing environmental protection programs-approximately $114 million
and (2) the Clean Water Act to help tribes prevent, reduce, and eliminate
water pollution-approximately $66 million. In addition, EPA provided funds
through a variety of other programs, including the Safe Drinking Water
Act, the Clean Air Act, the Toxic Substances Control Act, and the
Comprehensive Environmental Response, Compensation, and Liability Act.
Nearly all tribal requests for grants are reviewed and funded at the
regional level.
Since 1986, when Congress amended the first of the three environmental
laws to allow TAS status for tribes, a number of disagreements between
tribes, states, and municipalities have arisen, concerning land
boundaries, environmental standards, and other issues. The disagreements
have been addressed in various ways, including litigation, collaborative
efforts, and changes to federal laws. In terms of litigation, for example,
in City of Albuquerque v. Browner, 12 the city challenged EPA's approval
of the Pueblo of Isleta tribe's water quality standards, which are more
stringent than those of New Mexico, where the Pueblo of Isleta tribe is
located, but EPA's approval was upheld. In other situations, some tribes
and states have addressed issues more collaboratively. For example, the
Navajo Nation and the Arizona Department of Environmental Quality entered
into a cooperative agreement that, among other things, recognizes the
jurisdiction of the Navajo Nation's lands within its reservation and
establishes a plan to share the cost of pilot projects. In some cases, EPA
facilitates resolution of disagreements between states and tribes during
the review process. Regarding federal legislation, a federal statute
enacted in August 2005, requires Indian tribes in Oklahoma to enter into a
cooperative agreement with the state before EPA can approve a tribe's TAS
request.13 Currently, the Pawnee Nation is the only Oklahoma tribe that
has been awarded TAS status to set its own water quality standards. In
addition, EPA has established a dispute resolution mechanism under the
Clean Water Act to address disagreements between tribes and states but no
parties have yet used this mechanism to address such disagreements.
We provided EPA with a draft of this report for its review and comment. In
commenting on the draft report, EPA agreed with our findings and stated
that it was currently engaged in addressing many of the issues we raised.
EPA also provided technical comments, which we have incorporated into this
report as appropriate. Appendix V contains the full text of the agency's
comments.
1297 F.3d 415 (10th Cir. 1996), cert. denied, 522 U.S. 965 (1997). 13Pub.
L. No. 109-59, S: 10211 (2005).
Background The Clean Water, Safe Drinking Water, and Clean Air Acts
emphasize the importance of state involvement in protecting the
environment and public health and allow EPA to authorize states to
implement their own programs in lieu of the federal program-referred to as
program authorization. From 1986 to 1990, Congress amended these three
acts to authorize EPA to treat Indian tribes in the same manner as states
for purposes of program authorization.
Under EPA's implementation of the Clean Water Act, a tribe may submit a
request to EPA for TAS status and then submit a request for approval of
its adopted water quality standards, or submit both the TAS request and
the water quality standards approval request at the same time. Section 518
of the Clean Water Act lists the eligibility criteria EPA will use to
approve TAS status and to authorize Indian tribes to administer Clean
Water Act programs.
In applying for TAS under the Clean Water Act, a tribe, among other
things, submits a descriptive statement that includes a map or legal
description of the area over which the tribe intends to assert
jurisdiction. For purposes of this discussion, Indian lands can be
separated into three general categories: (1) lands within the exterior
boundaries of a formal reservation, (2) tribal trust lands lying outside
formal reservation boundaries, and (3) individual allotments lying outside
reservation boundaries.14 EPA considers lands within the boundaries of a
formal reservation and tribal trust lands lying outside of formal
boundaries to be reservations for purposes of section 518 of the Clean
Water Act. For the third category-individual allotments- EPA has not
historically considered the Clean Water Act to cover allotments outside of
reservations.
EPA follows similar processes for TAS under the Clean Water, Safe Drinking
Water, and Clean Air Acts. EPA's approval process for tribal requests for
TAS begins in its regional offices, where officials verify that the
requests meet eligibility requirements. EPA also requires its headquarters
staff to review the first TAS request received and approved in each region
14Allotments are parcels of land held in trust by the United States for
the benefit of individual Indians.
under the Clean Water and Safe Drinking Water Acts15 and to review all
other TAS requests, that appear to be nationally significant because, for
example, of new legal issues. Where practical, regional and headquarters
reviews are conducted concurrently, according to EPA officials. Except for
specific tasks, such as the 30-day public comment period, EPA has not
established time frames or goals for the length of its review process.
In addition to relevant statutory and regulatory guidance, EPA may refer
to federal case law concerning Indian tribes when reviewing a tribe's TAS
request, which we refer to as Indian case law in this report. For example,
EPA uses Indian case law to determine whether a tribe has the authority to
regulate an activity on land owned by nonmembers but located within a
reservation. In particular, in 1981, the Supreme Court held that, as a
general rule, absent delegation by federal statute or treaty, Indian
tribes lack authority to regulate the conduct of nonmembers on non-Indian
land within reservation boundaries, except when (1) nonmembers enter into
a consensual relationship with the tribe or (2) activities by nonmembers
on lands within the reservation threaten or have a direct effect on the
political integrity, economic security, or health or welfare of the tribe.
This ruling is known as the Montana test.16
With respect to program authorization, EPA's review process is generally
the same for tribes and states. Specifically:
o For the Clean Water Act, EPA determines, for example, whether the (1)
water uses are consistent with the requirements of the act, (2) adopted
criteria protect the designated water uses, and (3) appropriate technical
and scientific data and analyses have been used. The Clean Water Act
allows states and tribes to establish water quality standards that are
more stringent than federal requirements.
o Under the Safe Drinking Water Act, EPA requires states and tribes to
demonstrate the capability to administer primary enforcement
15According to EPA officials, the agency has no similar requirement for
TAS applications under the Clean Air Act, although they are reviewed in
headquarters for national significance.
16Montana v. United States, 450 U.S. 544 (1981). Other Supreme Court cases
concerning tribal authority include Brendale v. Confederated Tribes and
Bands of the Yakima Nation, 492 U.S. 408 (1989), Nevada v. Hicks, 533 U.S.
353 (2001), and Atkinson Trading Company, Inc. v. Shirley, 532 U.S. 645
(2001).
responsibility in a number of key areas. Among other things, EPA
determines whether the state or tribe has (1) adopted drinking water
regulations that meet or exceed EPA's national primary drinking water
regulations; (2) adopted and is implementing adequate procedures for
enforcing its regulations, including demonstrating authority to assess
penalties for violations; and (3) adopted and can implement an adequate
plan to provide safe drinking water under emergency circumstances, such as
hurricanes and other natural disasters.
o Under the Clean Air Act, EPA can authorize states and tribes to issue
and enforce federal air permits. For this authority, the tribe must, among
other things, submit a legal opinion, stating that the laws of the Indian
tribe provide adequate authority to carry out all aspects of the delegated
program. EPA and the eligible tribe then sign a Delegation of Authority
Agreement, which specifies the provisions that the tribe is authorized to
implement on behalf of EPA. EPA is responsible for announcing this
delegation in the Federal Register.
Since 1988, 57 of the 562 federally recognized tribal entities in the
United States have submitted 61 requests seeking TAS for program authority
under the three acts;17 these entities are from 17 states. Of the 61 TAS
requests, EPA has approved 32: 30 under the Clean Water Act, 1 under the
Safe Drinking Water Act, and 1 under the Clean Air Act. The remainder are
under review. Of the 32 approved TAS requests, 26 have also been approved
for program authority-24 for Clean Water, 1 for Safe Drinking Water, and 1
for Clean Air.18 Figure 1 shows the states where tribes have submitted and
been approved for TAS status under the three environmental acts, the
number of TAS submittals, and the number of TAS approvals in each state.
17Of the 57 tribal entities, 1 has submitted applications under two of the
acts (Clean Water and Safe Drinking Water) and 1 has submitted four
applications under the three acts.
18Technically, the term "program authorization" does not apply to the
water quality standards program under the Clean Water Act; rather EPA
approves the tribe's water quality standards. However, for the purposes of
our report, we are using the term to represent program authority under the
three acts.
EPA relies on grants as one of its primary ways to carry out its mission
of protecting human health and safeguarding the environment. Each fiscal
year, EPA awards approximately $4 billion in grants to state and local
governments, tribes, educational, nonprofit organizations, and other
entities for projects that range from conducting environmental research to
constructing wastewater treatment facilities to developing regulatory
programs. The funds are generally based on formulas laid out under each
law or regulation. To be eligible for most EPA grant programs, a tribe
must be federally recognized.19 In addition, for some grant programs, such
as section 106-for the prevention, reduction, and elimination of water
pollution--under the Clean Water Act, a tribe must also have obtained TAS
status to be eligible. For other grants, such as section 105-to develop
and administer programs that prevent and control air pollution or
implement national air quality standards--under the Clean Air Act, a tribe
is not required to have TAS status, but TAS status has a substantially
lower matching contribution requirement (from 5 percent with TAS status to
40 percent without). The grants' TAS criteria are less demanding and thus
the review process is less rigorous than the review process for TAS for
program authority. In addition, the grant decision is based solely on
EPA's expertise, and EPA does not generally get public comments on whether
the tribe has jurisdiction.20 Approval for TAS for grant purposes does not
qualify tribes for TAS for program authority purposes; however, tribes may
use their TAS grant status to help demonstrate capability to administer a
program when applying for program authority TAS. Finally, for other grant
programs, such as the Indian General Assistance Program, no TAS
requirement exists.
Financial assistance for tribal environmental programs is funded under
EPA's State and Tribal Assistance Grants appropriation. The funds are
generally based on specific formulas laid out in law or regulation, and
regions that have the largest number of tribes receive the largest
proportion of grant awards and grant dollars. The five states receiving
the most tribal grants-Alaska, Arizona, California, New Mexico, and
19Specifically, grants under the Clean Water, Safe Drinking Water, Clean
Air, and Indian Environmental General Assistance Program Acts require
federal recognition. Tribes that are not federally recognized may receive
grants through other programs.
20Specifically, EPA does not obtain public comments on grants under the
Clean Water or Safe Drinking Water Acts. However, for TAS determinations
under the Clean Air Act, EPA seeks comments from appropriate governmental
entities on the tribe's reservation boundaries or jurisdictional claims.
Oklahoma-are located in EPA's Regions 6, 9, and 10. Of the 1,343 grants
awarded to Indian tribes under the Clean Water, Safe Drinking Water, Clean
Air, and Indian General Assistance Program Acts between fiscal years 2002
through 2004, about 99 percent were awarded by EPA's regions.
Each grant program has its own request and award process and grant
opportunities are based on funding availability. As a result, a tribe may
receive a grant in one year and not in another. While funding of tribal
grants has remained relatively constant, according to EPA officials, the
agency's outreach to tribes and the growing awareness of environmental
issues among tribes, has led to steadily increasing numbers of requests
and grants being awarded.
EPA's Approval Process for TAS and Program Authorization Was Generally
Followed, but Some TAS Approvals Were Delayed by Lengthy Reviews
For the 20 cases we examined in detail, EPA followed its processes for
approving tribal requests for TAS and for program authorization, except
for adhering to the 30-day time frame for notifying governmental entities.
However, for these 20 cases, as well as for another 12 tribal requests for
TAS that EPA approved,21 the TAS review process was often lengthy.22 In
addition to those 32 TAS approvals, EPA is currently reviewing 29 TAS
requests, 27 of which were submitted more than a year ago. EPA officials
agreed that more could be done to improve the timeliness of the review
process, and the agency has recently begun working with its regions to
determine the status of outstanding requests and how best to expedite
reviews. The officials stated that evolving Indian case law and
complexities associated with some jurisdictional issues sometimes required
them to spend more time evaluating tribal TAS requests. Delays in the
approval process may hinder a tribe's efforts to control its environmental
resources. Furthermore, as we learned during our review, lengthy delays
and a lack of transparency in the review process may discourage tribes
from even submitting requests for TAS status. In terms of tribal requests
for approval of water quality standards, EPA approved most tribal requests
in less than 1 year but the agency generally did not meet its own standard
for approval within 60 days.
21Our analysis of these 12 requests, which we did not review in detail, is
based on EPAprovided data.
22According to EPA, 6 of these 12 TAS requests have been approved for
program authorization.
EPA Followed Its Procedures for Reviewing and Approving Tribal Requests,
except for Timely Notification to Affected Governmental Entities
According to our review of 20 approved cases in Regions 6, 9, and 10, EPA
generally followed its established processes for reviewing and approving
TAS requests. For example, EPA's files included the required documentation
to support its decision to approve a TAS request. First, EPA always
ensured that the tribe included a statement that the tribe is recognized
by the Secretary of the Interior.
Second, we found that EPA always ensured that tribes provided a statement
that their governing body is carrying out substantial governmental duties
and powers. To meet this requirement, tribes (1) described the form of
tribal government; (2) described the types of governmental functions
currently performed by the tribal governing body; and (3) identified the
source of the tribal government's authority to carry out these
governmental functions. Among other things, tribes provided tribal
constitutions, by-laws, and treaties to demonstrate that they were
carrying out substantial governmental duties and powers.
Third, the cases we reviewed showed that EPA always ensured that the tribe
documented its jurisdiction. Specifically, the files showed that EPA
collected a map or legal description of the area over which the tribe
intended to regulate-surface water quality, drinking water, or air
quality; a statement by the tribe's legal counsel describing the basis for
the tribe's assertion of authority; and documentation identifying the
resources for which the tribe proposed to establish environmental
standards. Some cases indicated that EPA followed up with a tribe when the
request lacked adequate documentation to meet this requirement.
Finally, EPA ensured that tribes submitted a narrative statement
describing their capability to administer the program to which they were
applying. For example, EPA ensured that tribes submitted a description of
o their previous management experience;
o existing environmental or public health programs administered by the
tribal governing body and copies of related tribal laws, policies, and
regulations;
o the entity that exercises the executive, legislative, and judicial
functions of the government;
o the existing, or proposed, agency that will assume primary
responsibility for the environmental standards; and
o the staffs' technical and administrative capabilities for managing an
effective program, and a plan for how the tribe will acquire and fund
additional expertise.
Additionally, EPA is required to promptly notify the tribe when the agency
has received the TAS request. In three cases, EPA did not have evidence
showing that it had notified the tribe that it had received the tribe's
request. In these cases, an EPA regional official told us, the agency may
have telephoned the tribe to acknowledge receipt of the tribe's request,
and this information would not necessarily be documented.
The only two time frames EPA has established require the agency to provide
(1) appropriate notice to affected governmental entities within 30 days of
receipt of a tribe's request for TAS and (2) interested parties with 30
days to comment on the tribe's request.23 For the 20 cases we reviewed,
EPA always provided affected governmental entities and interested parties
30 days to comment. However, in 17 of the 20 cases, EPA did not notify
affected governmental entities within its established 30-day time frame of
a tribe's TAS request, but instead took about 5 months, on average.24 EPA
officials told us that, in most cases, they worked with Indian tribes to
develop their TAS applications prior to the tribe's submission of its
application. However, they said that in some cases, applications were
still not complete when they were received, resulting in delays in
providing notification to governmental entities. EPA said it does not like
to notify affected governmental entities of a tribal request until EPA
agrees with the tribe that the application is complete.
EPA's Process for Approving TAS Requests Was Often Lengthy and Not Guided
by Clear Time Frames
Figure 2 shows the review times for the 32 TAS requests approved from 1991
through June 2005. Appendix II provides additional details on the 32
tribal entities that were approved for TAS as of June 2005, the dates that
the requests were submitted, and the date EPA approved them.
23Although EPA has established a 30-day comment period, the agency has
extended this time period when requested.
24Under its regulations implementing the Safe Drinking Water Act, EPA is
not specifically required to obtain comments from governmental entities
concerning a tribe's jurisdiction on its TAS request. Thus, EPA did not
have to meet the 30-day requirement on the one approved application under
the Safe Drinking Water Act.
Figure 2: Review Times for the 32 Requests Approved for TAS, 1991-2005
0-12 months
12-24 months
24+ months
Source: GAO analysis of EPA data.
Note: Of the 32 cases, 30 were approved under the Clean Water Act, 1 under
the Safe Drinking Water Act, and 1 under the Clean Air Act. Of the 32
cases, 26 were approved for program authority.
Review times for the 32 requests ranged from 3 months to nearly 7 years.
As figure 2 shows, 19 of the TAS reviews took 1 year or more for approval.
Specifically, for the 20 cases we examined, 10 took more than 1 year for
approval, with 2 taking more than 4 years. EPA regulations require that
the agency process TAS requests in a "timely" manner and internal guidance
issued in 1998 emphasizes the importance of an efficient review process.
However, EPA has never developed a written strategy that clarifies what it
means by timeliness, including performance goals, and does not routinely
track the time it takes to complete its review of these requests.
Reviews for Pending TAS Figure 3 shows the 29 TAS requests under review as
of June 2005 and the Requests Continue to Be time elapsed between the
request and June 2005. As the figure shows, the Lengthy time required for
reviewing these TAS requests is generally taking 1 or
more years, with 24 of the TAS requests under review for more than 2
years;
2 of the 24 requests have been under review for over 10 years. See
appendix
III for the details on the dates that requests were submitted.
Figure 3: Review Time for TAS Requests under Review, 1994-June 2005
0-12 months
12-24 months
24+ months
The number of TAS requests awaiting EPA approval has increased along with
the average review time. Specifically, as of 1998, 12 requests were under
review, and by June 2005, this number had increased to 29. In addition,
the average review time for TAS requests approved as of 1998 was 12 months
and the average review time for TAS requests approved between 1998 and
June 2005 was 28 months. The average review time for the 29 TAS requests
pending as of June 2005 was about 63 months (or over 5 years). Figure 4
shows the number of requests submitted and the number that remained under
review at the end of each year, from 1992 through June 2005.
Figure 4: Number of TAS Requests Submitted and under Review, 1992-June
2005
Number of TAS requests
30 29 29
25
20
15
10
5
0 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 June-05
Calendar year
Requests under review
Requests submitted
Source: GAO analysis of EPA data.
Note: One TAS request was submitted in 1988. The total number of TAS
requests submitted for program authority between 1988 and June 2005 was
61.
According to EPA officials, 15 of the 29 TAS requests currently awaiting
approval require some type of action on the part of the tribe, such as
providing additional documentation on the tribe's jurisdiction. The other
14 requests are awaiting EPA action, such as analysis and discussion with
the tribe, consideration of comments received, and final regional and
headquarters review.
Several Factors Cited for Delays in the TAS Approval Process
According to EPA officials, several factors contribute to lengthy TAS
reviews. First, both regional offices and headquarters often review the
requests. Regional offices have primary responsibility for reviewing and
approving TAS requests, but EPA headquarters may repeat the review to
ensure that the regional review fully addressed all legal requirements.
EPA's policy is for headquarters to review the first TAS request received
and approved in each region under the Clean Water and Safe Drinking Water
Acts25 and to review all other TAS requests, that appear to be nationally
significant because, for example, of new legal issues. In this regard,
officials cited evolving Indian case law and complexities associated with
some jurisdictional issues as significant contributing factors to added
review time. In some cases, EPA officials explained, multiple reviews
occur because, for example, a tribe may assert jurisdiction over lands
outside of its recognized boundaries. These assertions have led to
disagreements among the states and tribes, contributing to delays in EPA's
review process. Moreover, EPA has never disapproved a tribe's TAS request.
Rather than disapprove a tribe's request, EPA continues working with the
tribe until it meets all the eligibility requirements, which could
contribute to delays. EPA officials explained that to the extent possible,
it conducts its regional and headquarters reviews concurrently.
Second, EPA did not emphasize timely review of TAS requests for some of
the 20 cases we reviewed. For example:
o In one case, 20 months after receiving a tribe's TAS request, EPA asked
for necessary information on the tribe's water bodies, water uses, and
land status. This information should have been included in the original
request and followed up on at the time. EPA provided a variety of reasons
for delays in this tribe's review, including a lack of timely
communication between the tribe and EPA. Based on the problems experienced
in this case, EPA's responsible regional office reported that it has taken
steps to increase its tribal outreach activities.
o In another case, 23 months after receiving supportive comments from
governmental entities and over 1 year after regional counsel agreed that
the tribe met all the legal requirements, EPA continued to request
additional information regarding the tribe's jurisdiction. According to
25According to EPA officials, the agency has no similar requirement for
TAS applications under the Clean Air Act, although they are reviewed in
headquarters for national significance.
EPA officials, the agency inadvertently misfiled part of the tribe's
application paperwork and was waiting for the tribe to provide a
replacement copy of the jurisdictional map so EPA could complete its
review.
o Finally, in one case under review for more than 4 years, the tribe
amended its request in response to public comments. However, EPA was still
requesting basic documentation that should have been included in the
original request-2 years into the process. Furthermore, more than 1 year
before approving the tribe's TAS request, EPA determined that the request
raised no nationally significant issues and stated that the tribal
boundaries were clear. EPA officials agreed that there was a delay, but
stated that they were not requesting basic documentation, such as the
tribal constitution and codes, for the first time after the case had been
in review for 2 years. Rather, the region had misplaced the original
information provided by the tribe, and EPA was requesting that the tribe
provide replacement copies of important information.
In addition, according to EPA and tribal officials, some of the delays
during the review process occurred because of turnover in tribal or EPA
staffing. Specifically, we were told that some tribes have experienced
staff turnover in their environmental departments that affected their
capability to administer the environmental program. For example, in one
region, EPA officials cited tribal turnover as a cause for delay in 3 of
the 10 requests under review. Furthermore, some tribal officials said that
changes in their leadership sometimes shift their priorities away from
following through with their TAS request. Finally, some EPA regional
offices have experienced staff turnover, which caused some delay in
reviewing requests because the new staff needed time to become acquainted
with the tribes and to establish a relationship. For example, in one
regional office, officials said that certain staff positions-those that
deal directly with tribes-have changed about every 2 years. According to
tribal officials, changes in both tribal and EPA regional staff have made
it difficult to keep the continuity that the tribes believe they need to
successfully administer a federal environmental program.
According to EPA headquarters officials, in response to renewed concerns
from tribes and within EPA, the agency has held management-level
discussions with its regions to determine the status of outstanding
requests and to determine how best to address the growing backlog. In
October 2005, EPA headquarters officials stated that they had completed
discussions with its regions and was analyzing the results to determine
whether there are any systemic reasons for the lengthy review times.
Delays and Lack of Transparency in the TAS Process Have Discouraged TAS
Requests in One State
Some tribal officials told us that they have not submitted TAS requests
because the process has become so lengthy. These officials, who
represented five tribes in one western state, have observed the delays
that other tribes in the state have experienced. They questioned the value
of spending time and resources for such a lengthy process.
Moreover, tribes cannot always determine the status of a particular
request, the aspect of the review that may be delaying its approval, or
the length of time it will take EPA to complete its review. This lack of
transparency may hinder a tribe's understanding of what issues are
delaying EPA's approval and what actions, if any, may be needed to address
these issues. In one case, the regional office approved the request and
sent it to headquarters for concurrence. While the request was in
headquarters for about 2 years, regional officials told us they could not
determine the status of the request and could not provide the tribe with
adequate updates regarding their request. Tribal officials said that, even
when asked, EPA could not provide the tribe with a comprehensive list of
documents needed to complete the review. The request was under review at
the time we completed our work-6 years after it was submitted.
Approvals for Program Authorization Often Do Not Meet Established Time
Frames
As specified in the regulations for the Clean Water Act, a tribe must
provide appropriate notice to governmental entities and hold a public
hearing to discuss its proposed water quality standards. The standards may
change in response to hearing comments. Thirty days after the tribe
approves the proposed water quality standards, it must provide the
regional office with a transcript of the hearing, responses to comments,
the tribal-approved standards, and a certificate from a responsible legal
authority documenting that the water quality standards have been adopted
in accordance with tribal law. Following approval of a tribe's TAS
application, EPA's guidelines call for it to approve a tribe's water
quality standards within 60 days of the tribe's official submission of its
water quality standards.
For the 18 cases we reviewed under the Clean Water Act, EPA met its 60day
requirement for approving water quality standards for 7 of the
submissions. However, it did not meet its requirement for the other 11
cases. Figure 5 shows the review times for the 18 tribes submitting water
quality standards from 1992 through June 2005. See appendix IV for the
details on the dates that tribes submitted their water quality standards
and EPA approved the standards.
Figure 5: Elapsed Time for EPA's Approval of Tribes' Water Quality
Standards for 18 Clean Water Act Cases Reviewed
Number of days
2
2
730+ 365-730
3
180-364
60-179
4 7
0-59
01234567
Number of submittals
Source: GAO analysis of EPA data.
As figure 5 shows, 11 of the reviews for water quality standards took 60
days or more, with 4 taking 1 year or more for approval.
EPA Provides a Variety For fiscal years 2002 through 2004, EPA provided
Indian tribes about $360
million in grants for a broad range of environmental activities. Of this
total,of Grants to Help 1,343 grants totaling approximately $253 million
went to 461 Indian tribes Tribes Manage Their under four major acts
including the Indian General Assistance Program- Environmental which helps
tribes develop their capacity to administer environmental
programs-and three environmental acts-the Clean Water, Safe
DrinkingPrograms Water, and Clean Air Acts-which help tribes manage their
environmental
programs.26 Furthermore, during these three fiscal years, EPA awarded an
additional $106 million under other statutory authorities, including the
Toxic Substances Control Act, the National Environmental Education Act,
and the Comprehensive Environmental Response, Compensation, and Liability
Act. Half of the $360 million was distributed through two specific
programs: (1) the Indian General Assistance Program to help tribes to
plan, develop, and establish environmental protection
programs-approximately $114 million and (2) the Clean Water Act to help
tribes prevent, reduce, and eliminate water pollution-approximately $66
million.
Funds provided under the Clean Water, Safe Drinking Water, and Clean Air
Acts may be used for such things as research, construction, and the
development of regulatory programs. However, according to EPA officials,
only a small part of the grant funds are used by tribes to apply for and
develop regulatory programs under the various statutes. Although some, but
not all, grants require TAS status, the standards of evidence EPA requires
for TAS for grants are not as stringent as the standards for TAS for
program authority. For example, the TAS grant decision is based on EPA's
knowledge of the tribe and the tribe's area of jurisdiction. These
decisions do not require EPA to seek comment from affected states and
generally do not require a public comment period.
Table 1 shows the amount of grant funding awarded under the Indian General
Assistance Program and the three environmental acts for fiscal years 2002
through 2004.
26Under these four acts, our analysis includes grants where EPA has
designated the recipient type as an Indian tribe in the agency's
Integrated Grants Management System database. Other recipient types
include state and local governments, educational institutions, and
notfor-profit organizations. EPA also awards grants under other acts,
including the Toxic Substances Control Act and the Federal Insecticide,
Fungicide, and Rodenticide Act. EPA's administrative requirements for
environmental program grants for Indian tribes, and the environmental
programs covered, are set out at 40 C.F.R. Part 35, Subpart B.
Table 1: Grant Dollars Provided to Tribes under Four EPA Acts for Fiscal
Years 2002 through 2004
Dollars in millions
Statutory authority FY 2002 - 2004 grants
Clean Water $65.8
Safe Drinking Water 42.8
Clean Air 26.3
Indian General Assistance Program 114.3
Multiple statutory authoritiesa
Total $252.9
Source: GAO analysis of EPA's Integrated Grants Management System data.
aOf the $252.9 million in total grants for fiscal years 2002 through 2004,
approximately $3.7 million was awarded under more than one statutory
authority. Although the multiple authorities included one of the four acts
shown above, these grants may also have included other statutory
authorities such as the Solid Waste Disposal Act or the National
Environmental Policy Act. EPA could not provide the specific dollar
amounts under each authority for these types of grants.
In general, tribes initially apply for funding under EPA's Indian General
Assistance Program before applying for funds under the agency's
environmental programs. The Indian General Assistance Program provides
financial assistance to help tribes build capacity in order to administer
their environmental programs. The Indian General Assistance Program grant
does not require a tribe to have TAS status. The duration of these grants
(up to 4 years) provides tribes with a stable funding source, which is
useful to tribes without tax revenues. The tribes have used these grants
to, for example, hire, train, and maintain their own environmental
experts, and to plan, develop, and establish environmental protection
programs.
Grants for some environmental programs, such as section 106 of the Clean
Water Act and section 1443 of the Safe Drinking Water Act,27 have special
provisions for TAS status. For example, EPA requires that tribes receive
TAS status for section 1443 grants, while EPA regulations provide that
tribes with TAS status contribute less in matching funds for section 106
grants. The four TAS criteria for grants are similar to those for program
authority under the three acts--specifically, a tribe must be federally
recognized, have a governing body carrying out substantial duties and
powers, have adequate jurisdiction, and have reasonable capabilities to
27Grants awarded under section 1443 of the Safe Drinking Water Act help
tribes to carry out public water system programs, including implementation
and enforcement of the act.
carry out the proposed activities. The primary difference between TAS for
grants and TAS for program authority is that EPA does not generally seek
public comments on tribal requests for grants. In addition, there is
generally no need to determine tribal regulatory jurisdiction for TAS
eligibility for grants.
To encourage tribes to apply for these funds, EPA provides fact sheets
about the various financial assistance programs, sends them grant
solicitations, and provides training to help them develop their grant
requests. Nearly all tribal requests are reviewed and funded at the
regional level.
Differences between Tribes and States over Environmental Issues Have Been
Addressed in Various Ways
Since the three environmental acts were amended to allow tribes to receive
TAS status and to implement EPA programs, some tribes, states, and
municipalities have disagreed over tribal land boundaries and
environmental standards that may differ from state standards. However,
neither EPA nor any of the entities we contacted could identify the number
of disagreements that have arisen between tribes, states, and
municipalities over environmental issues.28 Generally, the disagreements
have been addressed through litigation, cooperative agreements, or
legislation.
In terms of litigation, for example:
o In City of Albuquerque v. Browner,29 the city challenged EPA's approval
of the Pueblo of Isleta's water quality standards, which are more
stringent than New Mexico's. The city asserted that EPA lacked the
authority under the Clean Water Act to either (1) approve tribal water
quality standards that are more stringent than required by the statute or
(2) require upstream users such as the city to comply with the standards
set by the Pueblo of Isleta, which is downstream from Albuquerque. A
federal appellate court upheld EPA's authority to approve the Pueblo's
standards. Among other things, the court noted that EPA is authorized to
require upstream dischargers to comply with downstream standards.
28EPA provided some examples of cases where the agency facilitated
discussions and cooperative agreements between tribes and states in which
water quality standards were involved.
2997 F.3d 415 (10th Cir. 1996), cert. denied, 522 U.S. 965 (1997).
o In Montana v. EPA,30 the state challenged EPA regulations allowing
tribes with TAS authority to issue water quality standards applicable to
all dischargers within a reservation, even those on land owned by
nonmembers of the tribe. Montana argued that the regulations permit tribes
to exercise authority over nonmembers that are broader than the inherent
tribal powers recognized by the Supreme Court as necessary to
self-governance. A federal appellate court held that EPA's regulations
properly delineated the scope of inherent tribal authority. It noted that
the Supreme Court had held that a tribe could regulate the conduct of
nonmembers when that conduct threatens or has some direct effect on the
political integrity, the economic security, or the health or welfare of
the tribe. EPA had found that pollution of tribal water resources by
nontribal members posed such serious and substantial threats to tribal
health and welfare that tribal regulation was essential. In this case, the
court held that EPA's regulations are a valid application of inherent
tribal authority over nonconsenting nonmembers.
Some tribes and states have addressed issues more collaboratively. For
example:
o The Navajo Nation's Environmental Protection Administration and the
Arizona Department of Environmental Quality entered into a cooperative
agreement in which, among other things, the state recognizes the
jurisdiction of the Navajo Environmental Protection Administration over
all lands within the Navajo Reservation and does not assert authority over
those lands. In addition, Arizona and the Navajo Environmental Protection
Administration agreed to share in the cost of pilot projects, including
in-kind contributions and technical assistance. As a result of this
collaborative effort, the tribe and state have been able to, among other
things, share staff for training and assist one another with permit
violations. In one instance, the tribe and the state investigated and
found several areas of potential contamination of illegal petroleum leaks
and spills. EPA ordered the company to stop its illegal actions and
prepare an environmental cleanup plan.
30137 F.3d 1135 (9th Cir.), cert. denied, 525 U.S. 921 (1998).
o Many different parties, including tribal, federal, state, and local
environmental groups, collaborated in an air toxics study, begun in 1999,
to help assess the impacts of hazardous air pollutants in the Phoenix
metropolitan area.31 The study, which is still ongoing, will review the
status of air toxics studies nationally and identify potential approaches
that may be useful in the Phoenix area.
In some cases, EPA facilitates a resolution of disagreements between
states and tribes during the review process. In these cases, EPA works
collaboratively with the tribe to facilitate a resolution. For example, in
one case, after discussing its application with EPA, a tribe amended its
TAS submission by clarifying that it was not seeking approval to
administer Clean Water Act programs on a portion of an adjacent river
where jurisdictional issues had been raised and stated that it would
continue its efforts to work cooperatively with the affected parties.
Legislatively, a statute enacted in August 2005 addressed some of the
jurisdictional concerns in Oklahoma over TAS for program authority.32
Specifically, to be approved for TAS, the law requires Indian tribes and
the state to enter into a cooperative agreement in which they agree to TAS
status and develop a plan to jointly administer program requirements. This
agreement is subject to the review and approval of EPA's Administrator
after notice and an opportunity for a public hearing. The only tribe in
Oklahoma that currently has TAS status for administering programs is the
Pawnee Nation.
According to EPA officials, tribes and states have not used the dispute
resolution mechanism EPA established under the Clean Water Act in 1987 to
address disagreements over water quality standards.33 Under this
mechanism, EPA can attempt to resolve disputes when, for example, (1)
differing water quality standards have been adopted pursuant to tribal and
state law and approved by EPA; (2) a reasonable effort to resolve the
dispute without EPA involvement has been made; and (3) a valid written
31Currently, the State of Arizona Department of Environmental Quality,
Maricopa County, Pinal County, the Gila River Indian Community, the Ft.
McDowell Yavapai Nation, the Salt River Pima-Maricopa Indian Community,
the U.S. Institute for Tribal Environmental Professionals at Northern
Arizona University, and the EPA are working together to complete the Joint
Air Toxics Assessment Project.
32Pub. L. No. 109-59, S: 10211 (2005).
33This mechanism is not available to cities and other governmental
entities.
request for dispute resolution has been submitted by either the tribe or
the state. We could not determine why states and tribes have not used this
mechanism to resolve disagreements.
According to a U.S. Institute for Environmental Conflict Resolution
official, states and tribes have not used the Institute to resolve
disagreements over the Clean Water, Safe Drinking Water, or Clean Air
Acts. Congress established this institute in 1998 to help parties resolve
environmental, natural resource, and public lands conflicts.34 The U.S.
Institute serves as an impartial, nonpartisan entity that provides
professional expertise, services, and resources to all parties to a
dispute. The U.S. Institute helps parties determine (1) whether
collaborative problem solving is appropriate for specific environmental
conflicts, (2) how and when to negotiate, and (3) whether a third-party
facilitator or mediator may be helpful in assisting parties in their
efforts to reach consensus or to resolve conflict. The U.S. Institute also
established the Native Dispute Resolution Network to provide an
alternative for American Indians, Alaska Natives, and Native Hawaiians
facing environmental conflicts. In commenting on a draft of this report,
EPA advised us that they had recently contacted the Institute for
assistance in discussions between tribal and state officials in Idaho on
revising a lake management plan.
Conclusion We recognize that a tribe's initial request for TAS may not
include all required documentation and that EPA's analysis of critical
components of that request, such as the tribe's jurisdiction over its
land, water, and air, may take some time. However, EPA has generally not
laid out a written strategy, including an estimated time frame, for the
TAS review process. Such a written strategy would help better focus EPA's
efforts and provide greater transparency for the tribes, on the status of
EPA's review. We note that EPA has established time frames for completing
some of its TAS processes, such as those for seeking public comment. We
also note that, without a written strategy, the average approval time for
TAS requests has increased from 12 months in 1998 to over 2 years as of
June 2005. Moreover, in some cases, neither EPA regional officials nor the
tribe know the status of the tribe's TAS request. Without time frames or
transparency
34The Environmental Policy and Conflict Resolution Act of 1988 (Pub. L.
No. 105-156) created the U.S. Institute for Environmental Conflict
Resolution to assist parties in resolving environmental disputes that
involve federal agencies or instrumentalities.
in the review process, Indian tribes may be discouraged from even applying
for TAS and program authority.
Recommendation for To better facilitate the timely review of tribal
requests for TAS status for program authorization and to increase the
transparency of the process to
Executive Action tribes, we recommend that the Administrator of EPA
develop a written strategy, including estimated time frames, for its
tribal request review process and for providing periodic updates to the
tribes on the status of their requests.
Agency Comments We provided EPA with a draft of this report for its
review and comment. In commenting on the draft report, EPA agreed with our
findings and emphasized their commitment to carefully considering these
issues. EPA also provided technical comments, which we have incorporated
into this report as appropriate. Appendix V contains the full text of the
agency's comments in a letter dated October 19, 2005.
We are sending copies of this report to appropriate congressional
committees; the Administrator, EPA; and other interested parties. In
addition, the report will be available at no charge on the GAO Web site at
http://www.gao.gov.
If you or your staff have any questions about this report, please contact
me at (202) 512-3841 or [email protected]. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on the
last page of this report. GAO staff who made major contributions to this
report are listed in appendix VI.
John B. Stephenson Director, Natural Resources and Environment
Appendix I
Objectives, Scope, and Methodology
The Chairman of the Senate Committee on Environment and Public Works and
the Chairman of the Senate Committee on Indian Affairs asked us to report
on (1) the extent to which the Environmental Protection Agency (EPA) has
followed its processes for reviewing and approving tribal requests for
treatment in the same manner as a state (TAS) and program authorization
under the Clean Water, the Safe Drinking Water, and the Clean Air Acts,
(2) EPA's programs for funding tribes' environmental programs and the
amount of dollars provided to tribes in fiscal years 2002 through 2004,
and (3) types of disagreements that have occurred between parties over
EPA's approval for granting tribes TAS status and program authorization
and the methods that have been used to address these disagreements.
Although our review focused primarily on the Clean Water Act, we also
reviewed EPA's process for reviewing and approving tribal requests under
the Safe Drinking Water and Clean Air Acts. In addressing these issues, we
collected information through case file reviews and interviews.
To determine the extent to which EPA followed its processes for reviewing
and approving TAS and program authorization requests, we reviewed EPA's
statutory and regulatory authorities, and guidance. Based upon this
review, we developed a structured review guide for our case file reviews-a
total of 20 reviews. We selected EPA's regions 6 (Dallas), 9 (San
Francisco), and 10 (Seattle) for our case file review because,
collectively, these regions had 77 percent of all approved tribal requests
for program authorization under the three acts (20 of 26). These regions
also had the largest number of approvals for program authority-18
approvals under the Clean Water Act, and 1 each under the Safe Drinking
Water and Clean Air Acts. We reviewed in detail EPA's TAS and program
authorization process under the Clean Water Act because most activity has
occurred under the act. We also reviewed EPA's process for reviewing and
approving tribal requests under the Safe Drinking Water and Clean Air
Acts.1 Furthermore, we reviewed data provided by EPA on another 12 TAS
and/or program authority approvals, bringing the total number of TAS
approvals to 32. In reviewing the case files, we ensured that
documentation existed to fulfill the statutory and regulatory
requirements, compared length of reviews with statutory deadlines, and
examined the cause of delays. With EPA officials in
1For the purposes of our report, we only looked at TAS requests for Part
71-operating permits under the Clean Air Act. Among other things, Indian
tribes have also been approved for treatment as an affected state under
title V of the Clean Air Act, which allows them to review and comment on
permits issued by neighboring states to facilities having the potential to
impact tribal lands.
Appendix I
Objectives, Scope, and Methodology
headquarters and in regions 6, 9, and 10, we used semistructured
interviews to obtain their understanding of the TAS and program
authorization processes under the three environmental acts. EPA also
provided data on the 57 tribes that had applied for TAS status and/or
program authorization, and the dates of request and approval (when
applicable). We cross-checked this information with the case file
documents for the 20 cases we reviewed. We also conducted interviews with
selected officials from the Department of the Interior's Bureau of Indian
Affairs, affected states, and representatives of Indian tribes in Arizona,
New Mexico, Oklahoma, and Washington to discuss their knowledge of, and
concerns about, EPA's processes for reviewing and approving tribal
requests for TAS status and program authorization.
To examine EPA's programs for funding tribes, we obtained data from EPA's
Integrated Grants Management System, a computer database used by the
agency to manage and report on information about grants, to determine the
number of federally recognized Indian tribes receiving funding for fiscal
years 2002 through 2004.2 Specifically, we analyzed information on the
number of grants and the dollars awarded under specific statutory
authorities for cases where the recipient type was listed as "Indian
tribe." This recipient type only applies to grants awarded to federally
recognized tribes or intertribal consortia. According to EPA officials
familiar with the data, tribes that are not federally recognized can
receive grants, however, only federally recognized tribes are categorized
as "Indian tribes" in the data element "recipient type." We assessed the
reliability of EPA's Integrated Grants Management System data by (1)
performing electronic testing of required data elements, (2) reviewing
existing information about the data, including past GAO reports and
workpapers on the system, and (3) interviewing agency officials
knowledgeable about the data. We determined that the data were
sufficiently reliable for the purposes of this report. In addition, we
reviewed and documented the various programs available to Indian tribes
under the Indian Environmental General Assistance Program Act of 1992 and
the Clean Water, Safe Drinking Water, and Clean Air Acts for fiscal years
2002 through 2004; and EPA's guidelines for providing funding to tribes
through these programs.
To examine the types of disagreements that have occurred between parties
over EPA's approval for granting tribes TAS status and program
2The data were obtained from EPA's Office of Grants and Debarment, which
among other things, compiles grant information for the agency.
Appendix I
Objectives, Scope, and Methodology
authorization and the methods that have been used to address these
disagreements, we reviewed EPA's statutory and regulatory processes for
resolving disputes between different parties under the Clean Water Act.
Although the dispute resolution provision specified in the Clean Water Act
regulations has not been officially used, EPA staff provided us with other
examples of tribes and outside parties creating collaborative agreements
and resolving disputes. We also interviewed selected EPA, state, and
tribal officials. In addition, we interviewed an official from the U.S.
Institute for Environmental Conflict and Resolution to gain an
understanding of the entity's objectives, roles, and responsibilities.
We performed our work between November 2004 and October 2005, in
accordance with generally accepted government auditing standards.
Appendix II
Tribal Entities and Dates Requests Were Submitted and Approved for TAS, as
of June 2005
Time elapsed
Cases GAO reviewed in detail Date submitteda Date approved (months)
(20)
Pueblo of Nambe (NM) 5/11/1995 8/18/1995
Pueblo of Picuris (NM) 5/1/1995 8/7/1995
Pueblo of Pojoaque (NM) 12/15/1995 3/21/1996
Pueblo of Tesuque (NM) 1/8/1997 4/29/1997
Navajo Nation (AZ)b 6/17/2004 10/13/2004
Pueblo of Santa Clara (NM) 3/13/1995 7/19/1995
Pueblo of San Juan (NM) 9/28/1992 5/12/1993
Pueblo of Isleta (NM) 2/13/1992 10/13/1992
Pueblo of Sandia (NM) 4/21/1992 12/24/1992
Puyallup Tribe of Indians (WA) 6/24/1993 5/25/1994
Confederated Tribes of the
Chehalis Reservation
(WA) 2/16/1994 3/7/1995
Confederated Tribes of the Warm
Springs
Reservation (OR) 2/20/1998 5/25/1999
White Mountain Apache Tribe 8/2/1995 2/3/1997
(AZ)
Confederated Tribes of Umatilla 10/20/1999 4/30/2001
(OR)
Kalispel Indian Community (WA) 11/17/2000 11/4/2002
Pueblo of Acoma (NM) 12/15/1998 4/17/2001
Hoopa Valley Tribe (CA) 5/21/1993 5/17/1996 35.9 Navajo Nation (AZ)c
4/4/1988 8/9/1991 40.2 Hualapai Indian Tribe (AZ) 3/1/2000 7/22/2004 52.7
Spokane Tribe of Indians (WA) 12/11/1997 7/23/2002 55.4
Other tribal entities receiving TAS approval GAO did not review in detail
(12)
Port Gamble S'Klallam (WA) 3/6/2003 9/24/2003 6.6
Miccosukee Tribe (FL) 5/27/1994 12/20/1994 6.8
Fond du Lac Band of Chippewa (MN) 6/14/1995 5/16/1996 11.1
Seminole Tribe (FL) 5/19/1993 6/1/1994 12.4
Mole Lake Band of the Lake Superior Tribe of
Chippewa Indians, Sokaogon Chippewa Community
(WI) 8/13/1994 9/29/1995 13.5
Assiniboine and Sioux Tribes of the Fort Peck
Indian
Reservation (MT) 3/24/1994 8/29/1996 29.2
Makah Indian Nation (WA) 6/27/2001 12/23/2003 29.9
St. Regis Band of Mohawk Indians (NY) 2/1/2000 10/16/2002 32.5
Tulalip Tribes (WA) 8/11/1993 5/9/1996 32.9
Appendix II
Tribal Entities and Dates Requests Were
Submitted and Approved for TAS, as of June
2005
(Continued From Previous Page)
Time elapsed
Cases GAO reviewed in detail Date submitteda Date approved (months)
(20)
Grand Portage Band of Chippewa 10/13/1993 7/16/1996
(MN)
Confederated Salish and
Kootenai Tribes of the
Flathead Reservation (MT) 4/22/1992 3/1/1995
Pawnee Nation (OK) 3/2/1998 11/4/2004
Source: GAO analysis of EPA data.
Note: Of the 32 cases, 30 were approved under the Clean Water Act, 1 under
the Safe Drinking Water Act, and 1 under the Clean Air Act.
a Our analysis uses the date the tribe's application was recorded as
received in EPA's official case file. According to EPA, that date may not
necessarily be the date the agency accepted the tribe's request as
complete. Even though, in most cases, EPA works with the tribe to develop
its application prior to submission, according to EPA, some applications
present complex legal issues that need to be discussed before EPA will
accept them.
bThe Navajo Nation's TAS request was submitted under the Clean Air Act.
cThe Navajo Nation's TAS request was submitted for the public water
systems program under the Safe Drinking Water Act.
Appendix III
TAS Requests under Review, as of June 2005
Time under review Tribal entities Date submitteda (months)
Shoshone-Bannock (ID) 12/27/2004
Blackfeet Tribe (MT) 10/6/2004
Pyramid Lake Paiute (NV) 6/18/2004
Big Pine Band of Owens Valley (CA) 6/1/2004
Santee Sioux (NE) 4/4/2004
Pueblo of Taos (NM) 6/10/2003
Northern Cheyenne Tribe (MT) 4/29/2002
Cocopah Tribe (AZ) 2/14/2002
Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation (AZ)
2/3/2002
Navajo Nation (AZ)b 10/18/2001
Yavapai-Prescott Nation (AZ) 1/23/2001
Agua Caliente Band of Cahuilla Indians (CA) 1/7/2001
Ute Mountain Ute (CO) 6/29/2000
Hopi Tribe (AZ) 6/20/2000
Paiute-Shoshone Indians of the Bishop Community (CA) 6/8/2000
Red Cliff Band of Chippewa (WI) 3/8/2000
Lac du Flambeau Band of Chippewa (WI) 11/22/1999 67.3
Navajo Nation (AZ) 11/22/1999 67.3
Assiniboine-Sioux of Ft. Peck Indian Reservation (MT) 7/27/1999 71.1
Salt River Pima-Maricopa Indian Community (AZ) 6/24/1999 72.2
Coeur D'Alene Tribe (ID)c 3/18/1999 75.4
Mille Lacs Band of Chippewa (MN) 12/30/1997 90.0
Leech Lake Band of Chippewa (MN) 11/15/1997 91.5
Bois Forte Band of Chippewa (MN) 7/18/1997 95.4
Three Affiliated Tribes of the Fort Berthold Reservation 12/30/1996 102.0
(ND)
Red Lake Band of Chippewa (MN) 11/7/1995 115.8
Keweenaw Bay Indian Community (MI) 8/10/1995 118.7
Lummi Tribe (WA) 3/8/1995 123.7
Confederated Tribes and Bands of the Yakama Indian Nation 11/4/1994 127.9
(WA)
Source: GAO analysis of EPA data.
aOur analysis uses the date the tribe's application was recorded as
received in EPA's official case file. According to EPA, that date may not
necessarily be the date the agency accepted the tribe's request as
complete. Even though, in most cases, EPA works with the tribe to develop
its application prior to submission, according to EPA, some applications
present complex legal issues that need to be discussed before EPA will
accept them.
Appendix III
TAS Requests under Review, as of June 2005
bThe Navajo Nation's TAS request was submitted for the underground
injection control program under the Safe Drinking Water Act.
cAccording to EPA, the Coeur D'Alene tribe was approved for TAS in August
2005.
Appendix IV
Elapsed Time for EPA's Approval of Tribes' Water Quality Standards for 18
Clean Water Act Cases Reviewed
Elapsed time
Tribal entities Date submitted Date approved (days)a
Pueblo of Picuris (NM) 8/7/1995 8/7/1995
Pueblo of Pojoaque (NM) 3/21/1996 3/21/1996
Pueblo of Nambe (NM) 8/18/1995 8/18/1995
Pueblo of Santa Clara (NM) 7/19/1995 7/19/1995
Pueblo of Acoma (NM) 4/17/2001 4/17/2001
Pueblo of Tesuque (NM) 4/29/1997 4/29/1997
Hualapai Indian Tribe (AZ) 7/22/2004 9/12/2004
Puyallup Tribe of Indians (WA) 8/22/1994 10/31/1994
Pueblo of Isleta (NM) 10/13/1992 12/24/1992
Pueblo of San Juan (NM) 5/12/1993 9/16/1993 124.0
Confederated Tribes of Umatilla 4/30/2001 10/18/2001 168.0
(OR)
Pueblo of Sandia (NM) 12/24/1992 8/10/1993 226.0
Spokane Tribe of Indians (WA) 7/23/2002 4/22/2003 269.0
Confederated Tribes of the 3/11/1996 2/3/1997 322.0
Chehalis Reservation (WA)
Kalispel Indian Community (WA) 3/24/2003 6/24/2004 450.0
White Mountain Apache Tribe (AZ) 3/27/2000 9/27/2001 540.0
Hoopa Valley Tribe (CA) 7/10/2000 9/11/2002 781.0
Confederated Tribes of the Warm Springs Reservation (OR) 5/25/1999
9/28/2001 843.0
Source: GAO analysis of EPA data.
aTAS approval is a prerequisite for obtaining program authority to set
water quality standards. The date submitted reflects a tribe's TAS
approval date or the date the tribe submitted its water quality standards
following TAS approval. Thus, in those cases where the tribe submitted its
water quality standards after receiving TAS approval, the elapsed time
calculation is based on the date the water quality standards were
submitted.
Appendix V
Comments from the Environmental Protection Agency
Appendix VI
GAO Contact and Staff Acknowledgments
GAO Contact John B. Stephenson, (202) 512-3841, [email protected]
Staff In addition to the individual named above, Ronald E. Maxon, Jr.,
Assistant Director; Tyra DiPalma-Vigil; Chad Factor; Doreen Feldman;
Richard
Acknowledgments Johnson; Crystal Jones; Jeff Malcolm; Rebecca Shea; and
Carol Herrnstadt Shulman made key contributions to this report.
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