EPA publishes Revised Interpretation of Clean Water Act TAS Provision

On May 16, the EPA published a final revised interpretation of the Clean Water Act’s TAS provision in the Clean Water Act, concluding that the Treatment as State provision includes an express delegation of authority by Congress to Indian tribes to administer regulatory programs over their entire reservations, subject to section 518(e)’s eligibility requirements.  This revised interpretation eases the burden for tribes applying for TAS status under the Act, removing the hurdle of having to demonstrate inherent regulatory authority under the Montana test in order to apply for TAS status.  The revised interpretation is likely to reduce the time and resources required to obtain EPA approval of TAS applications, particularly for tribes with lands owned by non-Indians within their reservation boundaries.

The Final Interpretive Rule published in the Federal Register is here.

The EPA’s Response to Public Comments on the Revised Interpretation here.

From the EPA:

Section 518 of the Clean Water Act (CWA) authorizes EPA to treat eligible Indian tribes with reservations in a similar manner to states (TAS) for a variety of purposes, including administering each of the principal CWA regulatory programs and receiving grants under several CWA authorities.

EPA’s revised interpretation of CWA section 518 published on May 16, 2016, streamlines the process for applying for TAS for CWA regulatory programs, including the water quality standards program. This reinterpretation facilitates tribal involvement in the protection of reservation water quality as intended by Congress.

Final Interpretive Rule
Since 1991, EPA has followed a cautious approach that requires applicant tribes to demonstrate inherent authority to regulate waters and activities on their reservations under principles of federal Indian common law.

The agency has consistently stated that its approach was subject to change in the event of further congressional or judicial guidance addressing tribal authority under section 518 of the Clean Water Act.

Based on such guidance, and after considering public comments, EPA 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 final interpretive rule will reduce burdens on applicants associated with the existing TAS process and has no significant cost.

The State of Michigan’s 2014 comments and the EPA’s response are reprinted below:

Comment ID EPA-HQ-OW-2014-0461-0103
Author Name: Bill Schuette, Attorney General; and Dan Wyant, Director, Michigan Department of Environmental Quality (MDEQ)
Organization: State of Michigan
Asserts that EPA has no legal basis for finding congressional delegation of authority to tribes in section 518(e). Cites lack of congressional action to clarify that section 518 is a delegation of authority, notwithstanding many other amendments to the CWA and one revision of section 518. Asserts that case law does not support reinterpretation and that judicial statements relied upon by EPA are dicta. Asserts that the Clean Air Act tribal provision is distinguishable. Expresses concern with the rule’s impact on disputed reservation lands and lands owned by nonmembers within reservations; with possible displacement of state programs; and with possible resulting approvals of tribal CWA programs without proper findings that tribes have authority to enforce the programs. Suggests that recognizing state authority in these areas will lead to more effective decisions for water resources and will avoid conflicts. Asserts that there will be no significant benefits from reinterpretation and that any added efficiencies do not speak to congressional intent. Expresses concern that applicants will need to obtain permits from both the state and a tribe or EPA.

EPA appreciates the comments from the Michigan Attorney General and MDEQ. EPA, however, disagrees that the rationale and supporting citations in the interpretive rule are insufficient to justify the revised interpretation of CWA section 518. See section IV.A of the final interpretive rule for a detailed discussion of EPA’s rationale and response to comments on the issue.

With regard to disputed reservation lands, EPA notes – as explained in sections V.C.1 and V.C.6 of the final interpretive rule – that under existing CWA requirements, TAS for CWA regulatory programs is limited to lands that qualify as reservation land, and existing TAS regulations provide for applicant tribes to demonstrate the boundaries of the reservation area over which they seek to administer a CWA regulatory program. Under those regulations, states and other entities will have an opportunity to comment and raise any concerns to EPA regarding the reservation status of land that is included in a TAS application, and EPA would only approve a tribe’s TAS status with respect to land that is determined to be reservation land. Further, with regard to any potential displacement of state programs, see section V.C.8 of the final interpretive rule. As explained there, state CWA programs are generally not approved by EPA in Indian country in the absence of an express congressional authorization of state jurisdiction and express approval by EPA. Such state programs would thus not be subject to displacement by tribal regulation in that they would generally not apply on reservations in the first instance. There should thus be no issue with potential requirements for dual CWA permitting by approved states and tribes.

Michigan also expresses concern that the revised interpretation may result in approvals of tribal programs without an adequate demonstration of tribal authority and that questions regarding the sufficiency of tribal authority could wind up being raised later, e.g., during implementation and enforcement of an approved program. EPA disagrees that regulated entities would be able to challenge a tribe’s EPA-approved CWA regulatory program by disputing the tribe’s underlying authority to implement or enforce the program. Consistent with the final interpretive rule, Congress, in section 518, has delegated its authority to eligible tribes to implement and enforce CWA regulatory programs on their reservations. The same congressional delegation of civil authority that supports a tribe’s eligibility for TAS would also support its implementation and enforcement of the approved program. The same approach is already in place under the Clean Air Act (CAA), which EPA has long interpreted as including a delegation from Congress to eligible Indian tribes to administer regulatory programs under that statute over their entire reservations. Tribes implementing such CAA programs are not subject to challenge based on an alleged absence of inherent authority to implement or enforce an EPA-approved program.

Michigan also asserts that recognizing state authority over disputed reservations and non-member reservation lands would lead to more effective CWA decisions. EPA disagrees. Like eligible tribes, states must have authority to implement and enforce CWA programs to receive approval from EPA. The Agency cannot recognize state authority – or approve a state regulatory program – where such jurisdiction does not exist or has not been demonstrated. Any such approval of a state program in the absence of a demonstration of authority and an express approval by EPA would create the very problem Michigan is concerned about – i.e., approval of a CWA regulatory program in the potential absence of underlying jurisdiction to implement and enforce.

Michigan also questions the benefits that may be achieved by the revised interpretation and asserts that simplifying the TAS process is not relevant to Congress’ intent. As explained in detail in sections IV.A and IV.B of the final interpretive rule, EPA’s revised interpretation of section 518 is based on the plain language of the statute itself as properly informed by consideration of relevant judicial and congressional guidance. The fact that the revised interpretation results in lifting unintended administrative burdens and that EPA describes such streamlining effects in the interpretive rule does not diminish the Agency’s legal justification. Such benefits are appropriately described as providing a policy basis for EPA to take a careful look at section 518 and issue a revised interpretation that some commenters have stated is long overdue.

One thought on “EPA publishes Revised Interpretation of Clean Water Act TAS Provision

  1. Kevin Washburn May 25, 2016 / 4:28 pm

    R.I.P. Leigh Price who was a strong supporter of the original approach. His theory was that requiring tribes to prove up regulatory authority to EPA independently of the Clean Water Act was helpful because a decision would then produce an expert agency opinion supporting inherent tribal jurisdiction that pre-existed the Clean Water Act. That approach worked beautifully in Montana v. United States Environmental Protection Agency, 137 F.3d 1135, 1140 (9th Cir. 1998).

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