"Treatment-as-a-State" Regulation

 

EPA/AEIO: U.S. Environmental Protection Agency / American Indian Environmental Office

 

Laws, Regulations and Guidance

 

Updated August 30, 2004

SUMMARY "Treatment-as-a-State" Regulation

U.S. Environmental Protection Agency

The Final Rule under the Clean Water and Safe Drinking Water Acts is designed to simplify EPA's process for qualifying Indian tribes for program approval. It was developed because the Agency process for approving Indian tribes for "Treatment as a State" (TAS) under various programs has proven to be burdensome and offensive to tribes.

Background

The Clean Water, Safe Drinking Water, and Clean Air Acts, authorize [the] EPA to treat Indian tribes as states for purposes of certain types of grant awards and program authorization. The only statutory requirements are that a tribe be federally recognized, have a governing body "carrying out substantial duties and powers, and have adequate jurisdiction and capability to carry out the proposed activities.

The Agency has promulgated regulations for implementing this authority under the Water Acts and has proposed regulations under the Air Acts.

Changes to Existing Process

A. Elimination of separate "TAS" approval. None of the statutes compel the use of a formal TM [trademark? TM is not explained] or other prequalification process separate from approval of the request for a grant or program approval. However, the Agency initially chose to implement provisions of the Clean Water and Safe Drinking Water Acts by establishing a formal prequalification process under which tribes can seek eligibility under these statutes. Under the regulation, current regulations would be amended to eliminate TAS review as a separate step in the processing of a tribal application for program approval. Under the new, simplified Process, the Agency will ensure compliance with statutory requirements as an integral part of the process of reviewing program approval applications.

B. Minimized use of the term "treatment-as-a-state." The term "treatment-as-a-state" is somewhat misleading and may be offensive to tribes. To the extent possible, the rule amends existing regulations so as to discontinue use of the term "treatment as a state;" however, since this phrase is included in several statutes, its continued use is sometimes necessary.

C. Establish uniform requirements for "recognition" and "governmental" requirements under each status. As a general rule, the "recognition" and "governmental" requirements are essentially the same under the "Clean Water, Safe Drinking Water, and Clean Air" Acts. The new process will reflect this by establishing identical requirements for making this shoving under each statute. Moreover, the fact that a tribe has met the "recognition" or "governmental functions" requirements "under the Clean Air Act or either of the Water Acts" will establish that it meets those requirements under all three statutes.

D. Eliminate unnecessary and/or duplicative requirements and expedite the process regarding the establishment of tribal jurisdiction.

Because a tribe may have jurisdiction over, and capability to carry out, certain activities (e.g., protection of the quality of a particular lake for the Clean Lakes program under the Clean Water Act), but not others (e.g., waste management on a portion of the reservation far removed from any lakes), the new process does not foreclose the Agency from making a specific determination that a tribe has adequate jurisdictional authority and administrative and programmatic capability before it approves each tribal program.

The portion of existing regulations on jurisdictional determination, under which governments comment on tribal jurisdiction, will be altered under the regulation:

(1) for approvals of all Drinking Water regulatory programs and most Clean Water programs under existing regulations, EPA will not authorize a state to operate a program without determining that the state has adequate authority to carry out those actions required to run the program. This applies also to a tribe seeking approval, and ensures that a close analysis of the legal basis of tribe's jurisdiction will occur before program authorization. Accordingly, a separate TAS jurisdictional review is not needed to verify that a tribe meets the statutory requirement, and is therefore eliminated for all programs under the Safe Drinking Water Act, and for the Clean Water Act's 404 and NPDES programs. This change will have the effect only of eliminating duplicative requirements;

(2) for the Water Quality Standards program, there is no review of tribal authority as part of the program approval process. Accordingly, for that program, a comment process will be retained. However, the Agency emphasizes that comments must be offered in a timely manner and specifies that where no timely 'comments are offered', the Agency will conclude that there is no objection to the tribal applicant's jurisdictional assertion.

EPA will no longer be required, by regulation, to consult with the Department of the Interior, although it may, in its discretion, seek additional information from the tribe or the commenting party, and may consult as it sees fit with other federal agencies prior to making a decision as to tribal jurisdictional authority.

To encourage the expeditious resolution of tribal jurisdictional matters, the rule notes that once the Agency makes a jurisdictional determination in response to a tribal application regarding any EPA program, it will ordinarily make the same determination for other programs unless a subsequent application raises different legal issues. By contrast, however, a determination that a tribe has inherent jurisdiction to regulate activities in one medium might not conclusively establish its jurisdiction over activities in another medium.

Under the new approval process, as under the old, the Agency will continue to retain authority to limit its approval of a tribal application to those land areas where the tribe has demonstrated jurisdiction. This would allow EPA to approve the portion of a tribal application covering certain areas, while withholding approval of the portion of the application addressing those land areas where tribal authority has not been satisfactorily established.

E. Establish consistency among programs and flexibility in requirements for establishing tribal capability.

EPA will continue to make a separate determination of tribal capability for each program for which it approves a tribe. However, the Safe Drinking Water Act and Clean Water Act regulations will be amended to conform to the CWA grant regulations, which do not specifically prescribe the material a tribe must submit to establish capability.

Ordinarily, the inquiry EPA will make into the capability of any applicant, tribal or state for a grant or program approval, would be sufficient to enable the Agency to determine whether a tribe meets the statutory capability requirement.