GM 16-068

EPA Publishes Two Rulemaking Documents on Implementing the Clean Water Act on Indian Reservations

The Environmental Protection Agency (EPA) recently published two rulemaking documents to address gaps in the implementation of the Clean Water Act (CWA) on Indian reservations. On September 26, 2016, EPA published a final rule on treatment of Indian tribes in a similar manner as states (TAS) for the purpose of identifying and restoring impaired waters, i.e., waters that are not in compliance with water quality standards (WQS). 81 Fed. Reg. 65901; On September 29, EPA published an advance notice of proposed rulemaking (ANPRM) on the proposed establishment of federal baseline WQS for Indian reservation waters for which WQS have not yet been adopted. 81 Fed. Reg. 66900; The deadline for filing comments on the ANPRM is December 28, 2016.

APRM: Federal Baseline Water Quality Standards (WQS). The CWA is a multi-faceted regulatory statute that establishes a federalist framework for achieving the objective of restoring and maintaining “the chemical, physical, and biological integrity of the Nation’s waters.” Within this federalist framework, EPA is charged with primary responsibility for certain CWA programs, and the states are charged with primary responsibility for other programs. Several programs for which EPA has the lead can be delegated to states, and, in certain circumstances, EPA can take over programs for which states have the lead. The adoption of WQS is assigned to the states, subject to approval by EPA to ensure that the state’s WQS meet the requirements of the CWA. EPA approval renders a state’s WQS enforceable through other CWA programs. If EPA does not approve a state’s WQS, EPA may promulgate federal WQS for waters of that state. However, there are no generally applicable federal WQS.

The role of states in adopting WQS was established by the 1972 amendments to the CWA. The 1987 amendments added section 518, which authorizes EPA to treat Indian tribes as states (TAS). 33 U.S.C. § 1377. (In implementing TAS for the CWA and other regulatory statutes, EPA’s practice is to use wording such as “treatment in a similar manner as states” rather than “treatment as states.”) EPA promulgated a final rule implementing TAS for the WQS program in 1991, in which EPA wrote that states generally lack authority to adopt WQS for waters within Indian reservations. There are now 53 tribes that have been authorized by EPA to administer the WQS program; 42 of these tribes have adopted WQS that have been approved by EPA. To qualify for TAS under CWA section 518, a tribe must have a reservation (which includes land held in trust for a tribe even if not formally designated a reservation). More than 300 tribes have reservations. Thus, at present on more than 250 reservations, there are no WQS.

The lack of WQS for so many reservations is a major gap in the implementation of the CWA. The ANPRM is intended to fill this gap through the promulgation of federal “baseline” WQS. As discussed in the ANPRM, this is not a new idea. The EPA Administrator signed a proposed rule to do this on January 18, 2001, but it was never published in the FEDERAL REGISTER.

While the ANPRM does not include any proposed regulatory language, it does include an explanation of the role of WQS in the CWA. Briefly, WQS consist of: “designated uses” – the policy decision on what uses a water body should support; “water quality criteria” – numeric and/or narrative parameters for protecting each designated use; and “antidegradation” requirements to prevent water quality from getting worse. The ANPRM also discusses the issues that would need to be addressed in federal “baseline” WQS.

The promulgation of federal “baseline” WQS would not preclude tribes from working their way through the TAS process and adopting their own WQS for approval by EPA. Earlier this year, EPA acted to streamline the TAS process by reinterpreting CWA section 518 as a delegation of authority from Congress to tribes, eliminating the need for a tribe to demonstrate inherent authority to regulate sources of water pollution on non-trust land. 81 Fed. Reg. 30183; See our General Memorandum 16-033 (May 18, 2016). The deadline for filing comments is December 28, 2016.

Final Rule: The Total Maximum Daily Loads Program for Impaired Waters. Impaired waters are those that do not meet applicable WQS. CWA section 303(d) requires each state to develop a list of impaired waters and, for each such water body, establish a total maximum daily load (TMDL). The TMDL program is a primary mechanism in the CWA for restoring the quality of impaired waters in order to support designated uses. As explained by EPA, a TMDL is a planning document to address impaired waters by calculating the amount of pollutants that a water body can receive on a daily basis and still meet the applicable WQS; the allowable pollution is then allocated among the various point sources and nonpoint sources.

The final rule establishes the process through which tribes can become authorized to be treated like states for the TMDL program. A prerequisite for establishing a TMDL is the existence of approved WQS for the waters within the tribe’s reservation. If a tribe has not yet become authorized for TAS for the WQS program, the final rule for the TMDL program provides that a tribe may apply for TAS for both programs at the same time.

Please let us know if we may provide additional information or assistance regarding the advance notice of proposed rulemaking on federal baseline water quality standards, the final rule on total maximum daily load, or other issues regarding the Clean Water Act in Indian Country.