How Can Indian Tribes Participate in the Water Quality Standards Program?
What are the Two Major Tasks?
One major task is for the Tribe to qualify to administer the program. This is accomplished by developing and submitting an application to the United States Environmental Protection Agency (EPA) Regional Administrator. EPA then reviews the Tribe's application and decides whether the Tribe meets the applicable requirements. EPA Region 10 has issued guidance to assist with preparing these applications.
A second major task is the development of water quality standards. The two separate tasks, development of: (1) the application, and (2) the standards, can occur simultaneously. That is, the Tribe can develop a program application and adopt standards and then submit both to EPA for approval. EPA Region 10, however, recommends that the program application be submitted as soon as draft standards have been completed. This approach hopefully will lead to timely Agency approval of the Tribe's program application before the Tribe adopts final standards.
What Changes Have Occurred to the Program Approval Process for WQS?
On December 14, 1994, EPA promulgated a regulation that simplified the process by which Indian Tribes may qualify to be treated in the same manner as States for purposes of various environmental programs under the CWA, Safe Drinking Water Act, and Clean Air Act. One of the amended regulations is the 40 CFR 131 water quality standards regulation, which had been previously amended on December 12, 1991 to establish a process by which Tribes could qualify to administer the water quality standards program.
For the water quality standards program, the major modifications to the program approval process are summarized below. This summary is not comprehensive - the full text of the final regulation should be consulted for a complete discussion. Copies are available by contacting Maja Tritt (email@example.com) in Region 10.
The major changes to the program approval process for water quality standards can be summarized as follows:
- The phrase "treatment as a State" was deleted from the regulation. The Agency had previously decided to discontinue use of this phrase to the extent possible, and the December 14, 1994 simplification rule amended the water quality standards regulation to implement that decision. What was formally referred to as the "TAS approval process" will now be referred to, for water quality standards, as the "program approval process."
- More flexibility was established with respect to the items to be included in tribal applications. Prior to the December 14, 1994 amendments, there were a number of items that tribal applications were required to include. These items are now only recommended for inclusion. However, the Region continues to have discretion to request additional information that it determines is needed to make a decision. The net effect is that both Tribes and the Region have more flexibility in determining the items and information that should be included in tribal program applications.
- EPA no longer is required to evaluate "federal recognition" and "substantial duties and powers" for each program. Under the new simplified approval process, if a tribe has been previously determined by EPA under the Clean Water, Safe Drinking Water, or Clean Air Acts to meet these two criteria for program approval, these issues do not have to be revisited for any subsequent programs.
- Tribes need not apply for program approval in advance of submitting water quality standards for approval. The preamble to the December 14, 1994 amendments clarifies that Tribes may optionally wait to submit the program application discussed in 40 CFR 131.8 along with their adopted water quality standards (which also must be submitted to EPA for approval). That is, tribal requests for EPA approval of the program application and the actual water quality standards can be handled in one submission to the Agency. This is merely a clarification of what has always been the case. As noted above, EPA Region 10 recommends, rather than waiting for final tribal adoption of water quality standards, that Tribes apply for program approval as soon as a reasonably complete program application is assembled.
- The process for reviewing tribal assertions of authority was simplified. EPA Region 10 is no longer required to consult with the Department of the Interior where a tribal assertion of authority for water quality standards is subject to a competing or conflicting claim. However, the Region may continue to seek additional needed information from the Tribe or the commenting party, and may consult as it sees fit with other federal agencies.