Appendix — Wisconsin v. Environmental Protection Agency

APPENDIX

Table of Contents

Item Page

September 21, 2001, Decision of the 7 Circuit

Court of Appeals, affirming Eastern District of

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April 28, 1999, Order of the United States District

Court for the Eastern District of Wisconsin granting

EPA's and Sokaogon Chippewa Community's

Motions for Summary Judgment .................:ccccessceseesseeeees 1Sa

April 28, 1999, Judgment of the United States District

Court for the Eastern District of Wisconsin ...................++- 35a

Decision by EPA Region V Administrator granting the

application of the Mole Lake Band of Lake Superior

Chippewa under Clean Water Act Section 303

(w/attachments), dated September 29, 1995................:.005 37a

November 28, 2001, Order of the 7” Circuit Court

of Appeals denying Petition for Rehearing ....................... 48a

Memo from EPA Region V Administrator to EPA

Assistant Administrator for Water requesting

concurrence with decision to grant Band's

application under Clean Water Act Section 303

(w/selected attachments), dated June 2, 1995.............0.0008. 50a

TT aiiecabicentncotinnapccsnshnenscisssessascdnecnsssdscace 74a

EE TUE Ai enshisabesdsiesskesetokesesoviausessenecescssssassunsove 84a

er SA © BEE sanitiiintaidaamaetinatcnnnamanmne 85a

Be Se iiaitissnuniiisaaraiamniaaaliannumaainin 89a

Amendments to the Water Quality Standards

Regulations That Pertain To Standards on Indian

Reservations, excerpts from 56 Fed. Reg. 64,876............. 93a

"Lands Proclaimed To Be An Indian Reservation

For Use Of Sokaogon- Chippewa Community,"

4 Fed. Reg. 1429-30, FUWe FO, FSP ....00.cccscssccssoresssseersess 108a

"Sokaogon Chippewa Community, Wis.; Proclaiming

Certain Lands as Part of Sokaogon Chippewa

Community (Reservation)," 47 Fed. Reg. 17337-38,

Pe td a Pee NG OO Ce Ee Oe eT ad) | ee Ree Ee ee

April 22, 1982....ccceceesnee Sa en 110a

EPA's letter to tribe dated February 10, 1995,

in response to Wisconsin's competing claim of

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EPA's Rule 28(j) letter to the 7" Circuit Court of

Agpapeaiin, Gate Fame 1, FANT osssasnscssersccsesssasnncacsocaasssesnnnss 117a :

Map of the Sokaogon Chippewa (Mole Lake)

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In the

United States Court of Appeals

for the Seventh Circuit

No. 99-2618

STATE OF WISCONSIN, i

Plaintiff-Appellant,

v.

ENVIRONMENTAL PROTECTION AGENCY

and CHRISTIE WHITMAN,”

Defendants-Appellees,

and

SOKAOGON CHIPPEWA COMMUNITY,

Intervening Defendant-Appellice.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 96-C-90—Charles N. Clevert, Judge

ARGUED NOVEMBER 6, 2000-

DECIDED SEPTEMBER 21, 2001

” Pursuant to Fed. R. App. P. 43(c), Christie Whitman is substituted as a

party for Carol M. Browner.

2a

Before KANNE, DIANE P. WOOD, §$and

WILLIAMS, Circuit Judges.

DIANE P. WOOD, Circuit Judge. Although the

general model of sovereignty suggests that different

sovereign states normally occupy different geographic

territories, see, e.g., Restatement (3d) of the Foreign

Relations Law of the United States, § 201 (1986), the

existence of federations and confederations shows that

overlapping sovereignty is also a common feature of modern

political organization. In this case, we confront one of the

more complex kinds of overlapping sovereignty that exists in

the United States today: that between the States and Indian

tribes. The Supreme Court addressed one aspect of that

relationship in its 2000 Term in Nevada v. Hicks, 121 S. Ct.

2304 (2001), which held that. tribal authorities lacked

legislative jurisdiction to regulate the activities of state

officials on reservation land when those officials were

investigating off-reservation violations of state law. Id. at

2318. A different aspect of the same relationship is before us

here: namely, whether the Environmental Protection Agency

(EPA), acting through authority delegated to it by statute,

was empowered to treat a particular tribe as a "state" for

purposes of certain water quality rules. Like the district

court, we conclude that the EPA acted properly in doing so,

and we thus affirm the district court's judgment rejecting the

challenge Wisconsin has brought to the EPA's action.

I

A. The Clean Water Act

The Clean Water Act (the Act) prohibits the discharge

of pollutants into navigable waters unless the discharge is

sanctioned by a permit or statute. See 33 U.S.C. § 1311(a).

Permits are issued by the EPA or by state agencies subject to

EPA review. Id. at § 1342. The Act also gives states the

authority to establish water quality standards for waters

a ee ere

3a

within their boundaries (id. at § 1313), to certify compliance

with those standards (id. at § 1341), and to issue and enforce

discharge permits (id. at §§ 1342, 1319), all under the

watchful eye of the EPA. Like other states, Wisconsin has

enacted its own federally approved comprehensive water

pollution regulatory system. See Wis. Adm. Code chapters

33, 280, 281, NR 100-91, and NR 102-106.

In 1987, Congress amended the Act to authorize the

EPA to treat Indian tribes as states under § 518 of the Act.

Once a tribe has treatment-as-state (TAS) status, the statute

permits it to establish water quality standards for bodies of

water within its reservation and to require permits for any

action that may create a discharge into those waters. 33

U.S.C. § 1377(e). In 1991, after full notice-and-comment

rule-making, the EPA issued a final rule implementing this

provision and setting forth the requirements Indian tribes

would have to meet in order to be granted TAS status:

(1) the tribe must be federally recognized;

(2) the tribe must have a governing body Carrying

out substantial governmental duties and powers;

(3) the functions to be exercised by the tribe must

pertain to the management and protection of water

resources which are held by the tribe, held by the

United States in trust for the tribe, or otherwise within

the borders of the reservation; and

(4) the tribe must be capable of carrying out the

functions of the Act.

40 C.F.R. 131.8(a); see also 33 U.S.C. §§ 1377(e)(1)-(3).

Relying heavily on the Supreme Court's decision in

Montana v. United States, 450 U.S. 544 (1981), the EPA

concluded that this was neither a plenary delegation of

4a

inherent authority to tribes to regulate all reservation waters,

nor was it a standard that precluded tribal regulation of any

non-member or any off-reservation activity. See 56 Fed.

Reg. at 64877. Instead, the agency chose a case-by-case

approach under which a tribe attempting to satisfy element

(3) of the regulation would have to show that it possesses

inherent authority over the waters in light of evolving case

law. See 56 Fed. Reg. at 64878. There was no question that

tribes could regulate the activities of tribal members,

undertaken on the reservation, in order to protect the quality

of reservation waters. In addition, the EPA concluded that "a

tribe may regulate the activities of non-Indians on fee lands

within its reservations when those activities threaten or have

a direct effect on the political integrity, the economic

security, or the health or welfare of the tribe." Jd.

The EPA acknowledged that this will usually be an

easy showing, based on “generalized findings" that water

quality is related to human health and welfare. See id.

Although the EPA stated that it would make a case-specific

determination with regard to the scope of each tribe's

authority, once a tribe has shown that impairment of the

waters on the reservation would have a serious and

substantial effect on the health and welfare of the tribe, the

EPA presumes that there has been an adequate showing of

inherent authority. Jd. at 64879.

B. The Mole Lake Band and its Application For

TAS Status

The waters at issue in this case are lakes and streams

adjacent to or surrounded by the reservation of the Sokaogon

Chippewa Community, also known as the Mole Lake Band

of Lake Superior Chippewa Indians (the Band), located in

northeastern Wisconsin. The Mole Lake reservation is

unusual in two respects. First, the Band is heavily reliant on

the availability of the water resources within the reservation

for food, fresh water, medicines, and raw materials. In

Sa

particular, Rice Lake, the largest body of water on the

reservation, is a prime source of wild rice, which serves as a

Significant dietary and economic resource for the Band.

Second, all of the 1,850 acres within the reservation are held

in trust by the United States for the tribe. None of the land

within the reservation is controlled or owned in fee by non-

members of the tribe.

In August 1994, the Band applied for TAS status

under the Act. Wisconsin opposed the application, arguing

that it was sovereign over all of the navigable waters in the

state, including those on the reservation, and that its

sovereignty precluded any tribal regulation. Nevertheless,

after elaborate administrative proceedings, on September 29,

1995, the EPA approved the Band's application, finding that

the tribe had satisfied all of the requirements of 40 C.F.R. §

131.8, including the necessary demonstration of its inherent

authority over all water resources on the reservation. In

keeping with its earlier positions, the EPA noted that the

inherent authority question did not turn on who had title to

the land underneath the waters.

This grant of TAS status alarmed the State of

Wisconsin, which saw it as both an affront to the state's

sovereignty and, more pragmatically, as an action with the

potential to throw a wrench into the state's planned

construction of a huge zinc-copper sulfide mine on the Wolf

River, upstream from Rice Lake. Concerned about its loss of

authority over certain territory within its outer boundaries

and worried that the tribal water standards might limit the

activities of the mine by prohibiting some or all of the

discharge from the mine, Wisconsin filed this action in

district court on January 25, 1996, reiterating its challenge to

the EPA's grant of TAS status to the Band. (The United

States and the EPA waived immunity under 5 U.S.C. § 702.)

The state's case raises a fundamental challenge to the TAS

grant; the relief it seeks is outright revocation of the grant,

rather than mere accommodation for any particular project.

6a

We are therefore satisfied that the issue is ripe now and need

not await the Band's promulgation of specific water quality

standards. If Wisconsin is right, it is entitled to have the

EPA's creation of a state-like entity within its borders

voided—an action that lies within the power of the court. See

Community Trend Service, Inc. v. Commodity Futures

Trading Comm'n, 233 F.3d 981 (7 Cir. 2000). Similarly, it

is one in which a failure to review the issue now would cause

hardship to the parties. Id.

In April 1999, the district court upheld the TAS grant,

finding that the EPA's determination that a tribe could

regulate all water within the reservation, regardless of

ownership, was a reasonable interpretation of the relevant

statutes and regulations. Wisconsin now appeals

Il

We review a grant of summary judgment de novo,

Doe v. Howe Military Sch., 227 F.3d 981, 990 (7™ Cir. 2000),

applying the same standards as the district court: we will set

aside an agency determination only if it is "procedurally

defective, arbitrary or capricious in substance, or manifestly

contrary to the statute." See United States v. Mead Corp.,

121 S.Ct. 2164, 2171 (2001); see also the Administrative

Procedure Act, 5 U.S.C. § 706(2)(A) (set aside agency

decision if arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law). We should uphold

the agency's determination as long as it considered relevant

data under the correct legal standards and offered a

satisfactory explanation for its actions. See Howard Young

Med. Ctr., Inc. v. Shalala, 207 F.3d 437, 441 (7 Cir. 2000).

Moreover, the EPA here has interpreted the statute by

promulgating formal regulations, using plenary notice-and-

comment procedures, and then implementing its rule with

respect to the Band through a formal process in which the

state was entitled to be heard. Its regulations and subsequent

decision are therefore entitled to deference under Mead, 121

Ta

S. Ct. at 2171, and Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 843 (1994).

Wisconsin is challenging the EPA's findings only

with respect to the third requirement for TAS status—the

demonstration of the tribe's inherent authority to regulate

water quality within the borders of the reservation.

Wisconsin gives three reasons why the EPA's determination

that the tribe had established such authority was

unreasonable.

l. Not "Within the Borders"

For the first time on appeal, Wisconsin contends that

Rice Lake is not "within the borders" of the reservation

because the legal description of the reservation runs only to

the Lake's highwater mark. This argument is waived,

however, because Wisconsin did not present it to the EPA.

See Vermont Nuclear Power Corp. v. Natural Res. Def.

Council, Inc., 435 U.S. 519, 553-54 (1978). Furthermore,

even if we could overlook this waiver and considered the

argument on its merits, we would reject it. As the map

attached to the Stipulated Joint Appendix illustrates, Rice

Lake is almost completely surrounded by reservation land

(and the small percentage that is not abuts off-reservation

trust lands). If the EPA had been given a chance to consider

this point, it would have been completely reasonable for it to

interpret the phrase "within the borders" to include such a

body of water.

-- No Authority Because No Title

Second, Wisconsin argues that the tribe does not have

authority over the water resources on the reservation because

the state has ownership of the underlying lake beds. We will

assume for the purposes of this appeal that, pursuant to the

Equal Footing Doctrine, the state does indeed have title to the

lake beds within the reservation. See Idaho v. Coeur d'Alene

8a

Tribe of Idaho, 521 U.S. 261, 283-88 (1997); Utah Div. of

State Lands v. United States, 482 U.S. 193, 195-96 (1987).

This court has indeed held that, in some situations,

state ownership of lake beds may restrict a tribe's authority to

regulate the waters running over those beds. In Wisconsin v.

Baker, 698 F.2d 1323, 1335 (7™ Cir. 1983), we found that,

because the state of Wisconsin held title to the underlying

lake beds in a reservation, the Chippewa Band was precluded

from restricting hunting and fishing in the reservation waters.

But contrary to Wisconsin's assertions, Baker does

not dispose of this case. Most importantly, Baker did not

involve a particular statute under which Congress specified

that tribes would be entitled to be treated as states under

particular circumstances, and both Congress and the

responsible agency outlined the regulatory authority tribes

were to exercise. The legal structure governing Baker

involved only the treaty that created the reservation, and that

treaty did not contain any language regarding the tribe's

power to regulate reservation waters. The Clean Water Act,

by contrast, explicitly gives authority over waters within the

borders of the reservation to the tribe and does not even

discuss ownership rights. Secondly, the Baker court

explicitly states that the "defendants do not contend that

public fishing and hunting pose an imminent threat to the

‘political integrity, the economic security, or the health or

welfare’ of the Band." Jd. at 1335. Thus, the Baker court left

open the possibility that state ownership of lake beds may not

preclude tribal authority over the waters if tribal regulation

was necessary to protect the "political integrity, the economic

security, or the health or welfare" of the Band, as both parties

concede is the case here. Thirdly, Baker was about hunting

and fishing rights, which have traditionally been the subject

of state regulation, while the ultimate authority for the water

quality standards lies with the federal EPA, not the state of

Wisconsin (which itself has acted only pursuant to federal

delegation).

Oe ee ee ee a ee oe a eee ee

9a

Baker therefore has little or no application to the case

before us. We find pertinent instead a number of legal

principles all of which Support the EPA's determination that a

State's title to a lake bed does not in itself exempt the waters

from all outside regulation. First, "the power of Congress to

regulate commerce among the states involves the control of

the navigable waters of the United States." Coyle v. Smith,

221 U.S. 559, 573 (191 1). This power has not been eroded

in any way by the Equal Footing Doctrine cases, which

“involved only the shores of and lands beneath navigable

waters. [The doctrine] cannot be accepted as limiting the

broad powers of the United States to regulate navigable

waters under the Commerce Clause." Arizona v. California,

373 U.S. 546, 597-98 ( 1963). Unlike the situation in Solid

Waste Agency of Northern Cook County v. U.S. Army Corps

of Engineers, 531 U.S. 159 (2001), here no one disputes that

the waters at issue are "navigable waters" for purposes of

either the Clean Water Act or the Commerce Clause.

The breadth of federal authority over Indian affairs is

equally well-established: "The Constitution vests the Federal

Government with exclusive authority over relations with

Indian tribes." Montana vy. Blackfeet Tribe, 471 U.S. 759,

764 (1985); United States y. Wheeler, 435 U.S. 313, 319

(1978) ("Congress has plenary authority to legislate for the

Indian tribes in all matters."); U.S. Const., Art. I, § 8,cl.3. In

fact, in the absence of tribal TAS Status, the EPA and not the

State of Wisconsin might well be the proper authority to

administer Clean Water Act programs for the reservation,

because state laws may usually be applied to Indians on their

reservations only if Congress so expressly provides. See

California v. Cabazon Band of Mission Indians, 480 U.S.

202, 207 (1987).

Because the state does not contend that its ownership

of the beds would preclude the federal government from

regulating the waters within the reservation, it cannot now

10a

complain about the federal government allowing tribes to do

so. It was reasonable for the EPA to determine that

ownership of the waterbeds did not preclude federally

approved regulation of the quality of the water, and we

uphold that determination.

3. No Inherent Authority over Off-Reservation

Activities

Finally, Wisconsin argues that the Band did not make

the required showing of authority over those activities

potentially affected by its imposition of water quality

standards. Because the EPA has determined that, unlike the

Clean Air Act, the Clean Water Act is not an express

delegation of power to tribes, see 56 Fed. Reg. at 64880, the

EPA requires tribes to show that they already possessed

inherent authority over the activities undoubtedly affected by

the water regulations. EPA regulations allow a tribe to

establish this authority by showing that impairment of the

reservation's waters would affect "the political integrity, the

economic security, or the health or welfare of the tribe." 56

Fed. Reg. at 64877.

This regulatory language tracks the Supreme Court's

decision in Montana v. United States, supra, in which the

Court recognized the general rule that "the inherent sovereign

powers of an Indian tribe do not extend to the activities of

nonmembers of the tribe," 450 U.S. at 565, but went on to

hold that "[a] tribe may also retain inherent power to exercise

civil authority over the conduct of non-Indians on fee lands

within its reservation when that conduct threatens or has

some direct effect on the political integrity, the economic

security, or the health or welfare of the tribe." Jd. at 566.

See also Atkinson Trading Co., Inc. v. Shirley, 121 S. Ct.

1825 (2001). The regulations also track the more recent

Supreme Court language in Strate v. A-] Contractors, 520

U.S. 438 (1997), by noting that authority is usually proper

because "water quality management serves the purpose of

lla

protecting public health and safety, which is a core

governmental function, whose exercise is critical to self-

government." 56 Fed. Reg. at 64879. (We note too that this

case does not involve any question of the tribe's ability to

restrict activities of state law enforcement authorities on the

reservation, when those officials are investigating . off-

reservation crimes, and thus the rule of Hicks, 121 S. Ct.

2304, is not implicated.)

Once a tribe is given TAS status, it has the power to

require upstream off-reservation dischargers, conducting

activities that may be economically valuable to the state (e.g.,

zinc and copper mining), to make sure that their activities do

not result in contamination of the downstream on-reservation

waters (assuming for the sake of argument that the

reservation standards are more stringent than those the state

is imposing on the upstream entity). See Albuquerque v.

Browner, 97 F.3d 415 (10" Cir. 1996). Such compliance

may impose higher compliance costs on the upstream

company, or in the extreme case it might have the effect of

prohibiting the discharge or the activities altogether. This is

a classic extraterritorial effect, which Wisconsin argues is

impermissible and takes this case beyond the scope of

Montana, which concerned only tribal authority over non-

member activities on reservation fee lands.

But this is not the only situation where upstream and

downstream users may have different standards and some

accommodation is necessary. Wisconsin's argument could be

made equally if the downstream regulator were Illinois, yet in

that case the need for the two states to coordinate their

Standards, or for the upstream company to comply with the

more stringent rules, would be clear. In fact, Congress

anticipated this very problem in the statute, and it had the

following to say about it:

The Administrator shall, in promulgating such

regulations [for TAS status], consult affected States

12a

_Sharing common water bodies and provide a

mechanism for the resolution of any unreasonable

consequences that may arise as a result of differing

water quality standards that may be set by States and

Indian tribes located on common bodies of water.

Such mechanism shall provide for explicit

consideration of relevant factors including, but not

limited to, the effects of differing water quality permit

requirements on upstream and downstream

dischargers, economic impacts, and present and

historical uses and quality of the waters subject to

such standards. Such mechanism should provide for

the avoidance of such unreasonable consequences in a

manner consistent with the objective of this chapter.

33 U.S.C. § 1377(e).

The EPA has developed the mechanism called for by

the statute, which allows it to mediate conflicting interests

when a tribe's standards differ from those of a state. See also

33 U.S.C. § 1341(a). In addition, once a tribe is given TAS

status, the Act gives it the same right as that given to states to

object to permits issued for upstream off-reservation

activities. See 56 Fed. Reg. at 64887. In deciding whether to

issue a permit for discharge within a state that may violate

the water quality standards of a downstream tribe, the EPA

may ask the parties to engage in mediation or arbitration, in

which the decision-maker and the EPA administrator, who

has the final authority over the issuance of the permit, will

consider such factors as "the effects of differing water quality

permit requirements on upstream and downstream

dischargers, economic impacts, and present and historical

uses and quality of the waters subject to such standards." 33

U.S.C. § 1377(e). The EPA may then ask the tribe to issue a

temporary variance from its standards for the particular

discharge or may ask the state to provide additional water

pollution controls. See 54 Fed. Reg. at 39099-101; 56 Fed.

Reg. at 64885-89; 40 C.F.R. §§ 121.11 through 121.16. This

13a

mechanism, rather than a futile effort to avoid extraterritorial

effects, is the way both Congress and the agency sought to

accommodate the inevitable differences that would arise.

— We say "inevitable" because activities located outside

the regulating entity (here the reservation), and the resulting

discharges to which those activities can lead, can and often

will have "serious and substantial" effects on the health and

welfare of the downstream state or reservation. There is no

case that expressly rejects an application of Montana to off-

reservation activities that have significant effects within the

reservation, and it would be exceedingly hard to say that the

EPA's interpretation is contrary to law in the face of the

express recognition of this issue and the choice of a solution

in the statute itself. It was reasonable for the EPA to

determine that, since the Supreme Court has held that a tribe

has inherent authority over activities having a serious effect

on the health of the tribe, this authority is not defeated even if

it exerts some regulatory force on off-reservation activities.

Finally, we think Wisconsin exaggerates the power of

the tribe to veto upstream discharge activities. The tribe

cannot impose any water quality standards or take any action

that goes beyond the federal statute or the EPA's power. To

the contrary, the EPA supervises all standards and permits.

Far from allowing a tribe to veto a state permit, granting TAS

Status to tribes simply allows the tribes some say regarding

those standards and permits. It is quite possible that, in

particular cases, perhaps through the vehicle of the statutory

mediation mechanism, the EPA may require the tribe's more

Stringent standards to give way to upstream discharge and

development. Whether the tribe or the state ultimately

“wins" in the dispute, it is the EPA, not the tribe or the state,

that has the ultimate authority to decide whether or not to

issue a permit. ;

Because the Band has demonstrated that its water

resources are essential to its survival, it was reasonable for

l4a

the EPA, in line with the purposes of the Clean Water Act

and the principles of Montana, to allow the tribe to regulate

water quality on the reservation, even though that power

entails some authority over off-reservation activities. Since a

state has the power to require upstream states to comply with

its water quality standards, to interpret the statutes to deny

that power to tribes because of some kind of formal view of

authority or sovereignty would treat tribes as second-class

citizens. Nothing in § 1377(e) indicates that Congress

authorized any such hierarchy. Particularly in light of the

deference we owe to the EPA's decisions here, we see

nothing that would justify our setting aside the agency's

action.

iil

We conclude that the EPA's grant of TAS status to

the Band is not arbitrary, unreasonable, or contrary to law

and we therefore AFFIRM the district court's judgment. We

note once again in closing that the EPA's decision in each

case seeking TAS status is fact-specific. In this case, both

parties conceded that the waters within the Band's reservation

are very important to the Band's economic and physical

existence. Additionally, the reservation here is unusual in

that there are no parcels of fee land within the reservation

owned by non-members of the tribe. We have no occasion to

say whether, on a different set of facts, the EPA might extend

the notion of a tribe's "inherent authority" to affect off-

reservation activities so far as to go beyond the standards of

the statute or the regulations. If it ever arises, that will be

another case, for another day.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

oe See TREN ern eee nee

15a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

STATE OF WISCONSIN,

Plaintiff,

V. Case No. 96-C-90

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY and

CAROL BROWNER,

Defendants,

and

SOKAOGON CHIPPEWA COMMUNITY,

Intervening Defendant.

ORDER GRANTING EPA'S MOTION FOR’

SUMMARY JUDGMENT (DOC. #49); GRANTING

SOKAOGON CHIPPEWA COMMUNITY'S MOTION

FOR SUMMARY JUDGMENT (DOC. #59); DENYING

STATE OF WISCONSIN'S MOTION FOR SUMMARY

JUDGMENT (DOC. #65) AND DISMISSING CASE

Before the court is the Environmental Protection

Agency's (EPA) Motion for Summary Judgment (Doc. #49);

the Sokaogon Chippewa Community's Motion for Summary

Judgment (Doc. #59); and the State of Wisconsin's Motion

for Summary Judgment (Doc. #65). For the reasons set forth

herein, summary judgment will be granted to the EPA and

l6a

Sokaogon Chippewa Community (Sokaogon). The State of

Wisconsin's summary judgment motion will be denied.

I. BACKGROUND

This case involves a challenge to the EPA's grant of

“treatment as state" (TAS) status to the Sokaogon Chippewa

Community pursuant to § 1377(e) of the Clean Water Act.

That section authorizes the EPA to treat Indian tribes as

States in promulgating water quality standards. Wisconsin

contends that the EPA exceeded its authority by granting the

Sokaogon Chippewa Community TAS status; the EPA and

Sokaogon Tribe request an order upholding the EPA's

decision.

A. The Clean Water Act

The Clean Water Act (CWA) prohibits discharges

from a point source of any pollutant into waters unless the

emission discharge complies with the Act's requirements.

See 33 U.S.C. § 1311(a). For most discharges, such

compliance is achieved by obtaining and adhering to the

terms of a National Pollutant Discharge Elimination System

(NPDES) permit. See 33 U.S.C. § 1342. NPDES permits

are issued by EPA or, in those jurisdictions in which EPA

has authorized a state agency to administer the NPDES

program, by a state agency subject to EPA review. See 32

U.S.C. § 1342(b).

Under the NPDES program, each state must adopt

water quality standards (WQS) for its waters, subject to

review and approval by EPA. See 33 U.S.C. § 1313(a)-(c).

Once WQS have been adopted, EPA will issue an NPDES

permit provided the relevant state certifies that any

discharges under the proposed permit will be consistent with

its WQS. See 33 U.S.C. § 1341(a).

17a -

In 1987, Congress added § 1377(e) to the CWA

thereby authorizing EPA to permit tribes "to be treated as a

state" for purposes of promulgating WQS. Section 1377(e)

states:

The Administrator is authorized to treat an

Indian tribe as a State for purposes of

subchapter II . . . to the degree necessary to

Carry out the objectives to this section, but

only if —

(1) the Indian tribe has a governing body

Carrying out substantial governmental duties

and powers;

(2) 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, held by the United States in trust for

Indians, held by a member of an Indian tribe if

such property interest is subject to a trust

restriction on alienation, or otherwise within

the borders of an Indian reservation; and -

(3) the Indian tribe is reasonably expected to x

be capable, in the Administrator's judgment,

of carrying out the functions to be exercised in

a manner consistent with the terms and

purposes of this chapter and of all applicable

regulations.

Section 1377(h) defines Federal Indian reservation as

“all land within the limits of any Indian reservation under the

jurisdiction of the United States Government,

notwithstanding the issuance of any patent, and including

rights-of-way running through the reservation . . .."

a

18a

After notice and an opportunity to comment, EPA

issued a rule in 1991 enumerating the standards for

processing tribal requests for TAS siatus. See 56 Fed. Reg.

64,876 (1991). The Rule requires:

& The tribe must be federally recognized

and exercising governmental authority;

2... __‘ The tribe must have a governing body

carrying out "substantial governmental

duties and powers";

a The water quality standards program

which the tribe seeks to administer

must “pertain to the management and

protection of water resources," which

are "within the borders of an Indian

reservation;"

4. The Indian tribe is reasonably

expected to be capable of carrying out

the functions of an effective water

quality standards program in a manner

consistent with the terms and purposes

of the Clean Water Act and

regulations. ,

See 40 C.F.R. § 131.8(a).

B. The Sokaogon Chippewa Community

The Sokaogon Chippewa Community is a Native

American tribe previously known in the past as the Sokaogon

Band, the Mole Lake Band, the Post Lake Band, the Rice

Lake Band, the Pelican Lake Band, the Lake Bands and the

Lost Band. Sokaogon Chippewa Community v. Exxon

Corp., 805 F. Supp. 680, 685 (E.D. Wi. 1992). The

Sokaogon Chippewa are descendants of the Lake Superior

E'S ee

—

19a

Chippewa tribes that roamed the Northern Wisconsin area

before white settlement in the early to mid-1800's. Id.

For reasons not relevant here, the Sokaogon

Chippewa were a nomadic tribe and did not receive their own

reservation land until the 1930's. In 1934, the Indian

Reorganization Act authorized the Secretary of the Interior to

purchase new lands and turn them into Indian reservations.

25 U.S.C. §§ 465, 467. Thereafter, the Sokaogon received

1,437 acres in Forest County, Wisconsin, in 1939, and

additional land in that area in 1982. This area is designated

as the Mole Lake Reservation. Sokaogon Chippewa

Community, 805 F. Supp at 690. Unlike many reservations

today, the reservation lands are owned wholly by the United

States in trust for the Sokaogon Tribe. There are no non-

Indian lands owned in fee by non-members of the Tribe. See

Montana v. United States, 450 U.S. 544 (1981).

On August 13, 1994, the Sokaogon Tribe filed an

application for treatment as a state under § 1377 of the Clean

Water Act.

C. The State of Wisconsin's objection

The State of Wisconsin objected to the Sokaogon

Tribe's TAS application arguing that it enjoys sovereignty

over all navigable waters located within State boundaries by

virtue of the Public Trust and Equal Footing Doctrines.

Before Wisconsin became a State, the United States held

these interests in trust for the public pursuant to a 1783 deed

of cession by four of the Original 13 states and the Northwest

Ordinance of 1787. Wisconsin received these interests upon

admission to the Union pursuant to the Wisconsin Enabling

Act of 1846, 9 Stat. 56, and the Act of March 3, 1847, 9 Stat.

178. Because the Mole Lake Reservation was not created

until roughly 91 years later, the State contends the Tribe

never acquired ownership of navigable water beds and cannot

regulate within those beds under § 1377(e)(2).

20a

The State relies heavily on State of Wisconsin v.

Baker, 698 F.2d 1323 ta Cir. 1983). In that case, it sought a

declaratory judgment that fishing and hunting restrictions set

by the Chippewa Indians on their reservation infringed the

general public's right to use navigable state waters.

Wisconsin asserted property interests in those waters as

trustee for the public. The Seventh Circuit concluded that the

1854 treaty which created the Chippewa reservation did not

explicitly divest the state of its interest in navigable waters,

and there was no public exigency at the time the treaty was

signed warranting such an inference. Id. at 1334-35. Thus,

the court concluded that the State retained exclusive

sovereignty over waters within the reservation. Id. at 1335.

The State also relied on Montana v. United States,

450 U.S. 544 (1981). In Montana, the Supreme Court stated:

The respondents seek to establish a substantial

part of their claim of power to control hunting

and fishing on the reservation by asking us to

recognize their title to the bed of the Big Horn

River. The question is whether the United

States conveyed beneficial ownership of the

riverbed to the Crow Tribe by the treaties of

1851 or 1868, and therefore continues to hold

the land in trust for the use and benefit of the

Tribe, or whether the United States retained

ownership of the riverbed as public land

which then passed to the State of Montana

upon its admission to the Union.

Though the owners of land riparian to

nonnavigable streams may own the adjacent

riverbed, conveyance by the United States of

land riparian to a navigable river carries no

interest in the riverbed. Rather, the ownership

of land under navigable waters is an incident

a ‘eee i —

2la

of sovereignty. As a general principle, the

Federal Government holds such lands in trust

for future States, to be granted to such States

when they enter the Union and assume

sovereignty on an "equal footing" with the

established States. After a State enters the

Union, title to the land is governed by state

law. The State's power over the beds of

navigable waters remains subject to only one

limitation: the paramount power of the United

States to ensure that such waters remain free

to interstate and foreign commerce .. ..

But because control over the property

underlying navigable waters is so strongly

identified with the sovereign power of

government, it will not be held that the United

States has conveyed such land except because

of "some international duty or public

exigency.” A court deciding a question of title

to the bed of a navigable water must,

therefore, begin with a strong presumption

against conveyance by the United States, and

must not infer such a conveyance “unless the

intention was definitely declared or otherwise

made plain," or was rendered "in clear and

especial words," or “unless the claim

confirmed in terms embraces the land under

the waters of the stream."

Id. at 550-52 (citations omitted).

Based on the foregoing, the State asserts that the

Sokaogon Tribe may not set water quality standards within

the boundaries of its reservation because it does not hold title

to those waters. Furthermore, the State challenges EPA's

conclusion that the Sokaogon Tribe is capable of

implementing a water quality standards program.

22a

Alternatively, the State contends that the EPA's decision

violates the establishment clause by reposing regulatory

authority in entities that intend to base decision making, at

least in part, on religious and spiritual principles.

Standard of Review

On September 29, 1995, the EPA approved the

Tribe's application for TAS status, concluding that the Tribe

had satisfied all requirements of C.F.R. § 131.8, including

demonstrating its authority over all water resources on the

reservation. That decision is at issue here.

The Administrative Procedure Act commands

reviewing courts to "hold unlawful and set aside" agency

action that is "arbitrary, capricious, and abuse of discretion,

or otherwise not in accordance with law."’ 5 U.S.C. §

~

~~.

' Title 5 U.S.C. § 706(2) provides that a reviewing court shall "hold

unlawful and set aside agency action, findings, and conclusions found to

be- 2

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right;

(D) without observance of procedure required by

law;

(E) unsupported by substantial evidence in a case

subject to sections 556 and 557 of this title or

otherwise reviewed on the record of any

agency hearing provided by statute; or

See a ae a ee ae ee, eS ene

23a

706(2)(A). In Chevron, USA, Inc. v. Natural Resources

Defense Council, 467 U.S. 837, 842-43 (1984), the Supreme

Court established a two-step approach to judicial review of

agency interpretations of acts of Congress. First, the

reviewing court must determine whether there is a clear and

unambiguous congressional intent concerning the precise

question at issue. If congressional intent is clear and

unambiguous, then that intent must be given effect. A

reviewing court proceeds to the second Step "if the statute is

silent or ambiguous with respect to the specific issue." Id. at

842-843. Then, "the question for the court is whether the

agency's answer is based on a permissible construction of the

Statute." Id.

This court must also give substantial deference to an

agency's interpretation of its own regulations. Martin v.

Occupational Safety and Health Review Comm'n, 499 U.S.

144, 150-151 (1991). This court's task is not to decide which

among several competing interpretations best serves the

regulatory purpose. Rather, the agency's interpretation must

be given "'controlling weight unless it is plainly erroneous or

inconsistent with the regulation." Bowles v. Seminole Rock

& Sand Co., 325 U.S. 410, 414 ( 1945)). In other words, the

court must defer to the secretary's interpretation unless an

“alternative reading is compelled by the regulation's plain

language or by other indications of the Secretary's intent at

(F) unwarranted by the facts to the extent that the

facts are subject to trial de novo by the

reviewing court.

In making the foregoing determinations, the court shall review

the whole record or those parts of it cited by a party, and due account

shall be taken of the rule of prejudicial error."

It is uncontested that the present controversy is not controlled by

§§ 706(2)(E) or 706(2)(F), which primarily apply in cases involving

either agency rulemaking or adjudication. Nor is there a claim that the

EPA exceeded its constitutional authority under § 706(2)(B) or its

Statutory authority under § 706(2)(C).

24a

the time of the regulation's promulgation." Gardebring v.

Jenkins, 485 U.S. 415, 430 (1988).

II. CONCLUSIONS OF LAW

A. The EPA's grant of TAS status to the

Sokaogon Tribe was not arbitrary,

capricious, an abuse of discretion or

contrary to law.

The court concludes that the EPA's grant of TAS

status to the Sokaogon Tribe must be upheld. After careful

review of the administrative record in this case, the court

cannot conclude that the EPA's decision was “arbitrary,

Capricious, an abuse of discretion or contrary to law."

As an initial matter, the court concludes that the

administrative record supports the EPA's conclusion that the

Sokaogon Tribe is federally recognized and exercising

governmental authority. Under the Wheeler-Howard Act of

June 1934, the Sokaogon Chippewa Community became a

federally recognized tribe with a governing body operated

under a Constitution and by-laws. The Charter of

Incorporation to the Sokaogon Chippewa Community was

ratified and became effective on October 7, 1939.

The administrative record also supports the EPA's

conclusion that the Sokaogon Tribe has a governing body

carrying out "substantial governmental duties and powers".

The Band's government includes a Tribal Council, which

carries out executive and legislative functions, pursuant to a

Constitution and by-laws.

The EPA's conclusion that the Sokaogon Tribe is

reasonably expected to be capable of carrying out the

functions of an effective water quality standards program in a

manner consistent with the terms and purposes of the Clean

25a

Water Act and regulations is also amply supported by the

record. The EPA concluded:

[T]he Band is reasonably expected to be

capable of carrying out the functions of an

effective water quality standards program in a

manner consistent with the terms and

purposes of the Clean Water Act by the

‘existence of manage- ent and technical skills,

by the existence ¢ institutions to exercise

executive, legislative and judicial functions,

by a history of successful managerial

performance of public health and

environmental programs, and by acceptable

accounting and procurement procedures.

The Mole Lake Band demonstrates the

requisite management and technical skills and

history of successful management and

technical skills and history of successful

management performance through its existing

environmental programs. The Band has

maintained a multi-media environmental

office for 4 years, with the addition of staff

expertise in the areas of water quality, data

management and planning. The Band has

received numerous grants under the Clean

Water Act, Resource Conservation and

Recovery Act, the Clean Air Act and the

Indian General Assistance Program. At the

present time, the Tribal environmental

department is performing reservation-wide

monitoring of its surface waters, air quality

and ground water. In addition, the Band has

been working on the development of a water

quality standards program for several years

with financial and technical assistance from

the Region. The band has submitted several

SE ,

26a

well-written drafts of the water quality

standards regulations to the Region for review

and comment and held a formal public hearing

to gather comments on its water quality

standards .. ..

The State argues that the EPA erred in concluding

that the Sokaogon Tribe satisfied the capability requirement

because the tribe failed to demonstrate that it will provide

adequate judicial review of certification decisions. The court

disagrees. The EPA expressly concluded that "the Band is

reasonably expected to be capable of carrying out the

functions of an effective water quality standards program in a

manner consistent with the terms and purposes of the Clean

Water Act by the existence of . . . institutions to exercise... .

judicial functions . . ..". The administrative record supports

this finding and the decision is entitled to deference.

Furthermore, the administrative record supports the

EPA's conclusion that the water quality standards program

which the Tribe seeks to administer pertains to the

management and protection of water resources withir the

borders of an Indian reservation. See 40 C.F.R. §

131.8(a)(1). Although it is unclear what Congress intended

when it enacted § 1377(e)(2), EPA's construction of this

section is reasonable and permissible.

Section 1377(e) permits a Tribe to be treated as a

state for purposes of the Clean Water Act if:

(2) the functions to be exercised by the

Indian tribe pertain to the management

and protection of water resourc —

which are held by an Indian tribe, held

by the United States in trust for

Indians, held by a member of an

Indian tribe if such property interest is |

subject to a trust restriction on j

27a

alienation, or otherwise within the

borders of an Indian reservation...

33 U.S.C. § 1377(e)(2) (emphasis added).

When reading § 1377(e)(2) it is uncertain whether

Congress intended Indian Tribes to have some kind of

Ownership interest in the water resources to be regulated, or

whether Congress intended that Tribes regulate all water

within their reservations, regardless of ownership.

Nevertheless, the EPA's construction of this section is

reasonable and permissible. In promulgating the regulation

construing this section, the EPA concluded that a tribe must

show that the "water quality standards program which the

tribe seeks to administer must ‘pertain to the management and

protection of water resources,’ which are ‘within the borders

of an Indian reservation." See 40 C.F.R. § 131.8(a)(1).

Although the EPA recognized that tribes generally possess

the authority to regulate activities affecting water quality on

their reservation, it acknowledged that the Clean Water Act

does not grant additional authority to tribes. “See 56 Fed.

Reg. at 64,880.

Moreover, the EPA's regulations indicate that

applications by Tribes will be supplemented by its two

general findings regarding the effects of water pollution on

reservations. First, the EPA found that the CWA contains an

implicit congressional finding that impacts to water quality

constitute potential serious and substantial effects on human

health and welfare. 56 Fed. Reg. at 64,878. Furthermore, the

EPA also determined that activities on fee lands within a

reservation will likely impact the quality of waters on the

tribal portions of the reservation.” 56 Fed. Reg. at 64,878.

? The EPA stated:

[Because of the mobile nature of pollutants in surface

waters and the relatively small length/size of stream

ee |

aia alae

28a

The EPA also expressed its intent to rely on Montana

v. United States, 450 U.S. 544 (1981), and its progeny in

examining TAS applications. See 56 Fed. Reg. at 64, 880.

In Montana, the Supreme Court concluded that absent

express authorization by federal statute or treaty, Indian

tribes lack civil authority over the conduct of non-members

on non-Indian land within a reservation. Montana, 450 U.S.

at 564. In certain circumstances, however, even where

Congress has not expressly authorized it, Indian tribes retain

inherent sovereign power to exercise civil jurisdiction over

non-Indians on fee lands. Id. at 566. The first exception to

the general rule relates to non-members who enter consensual

relationships with the tribe or its members. The second

concerns conduct that "threatens or has some direct effect on

the political integrity, the economic security, or the health or

welfare of the tribe." See also Strate v. A-1 Contractors, 520

U.S. 438, 457 (1997); Brendale v. Confederated Tribes and

Bands of the Yakima Indian Nation, 492 U.S. 408, 431

(1989). |

Notwithstanding the absence of non-member fee

lands on the Mole Lake Reservation, the EPA relied on

Montana's second exception in concluding that the Sokaogon

Tribe possessed inherent regulatory authority over the water

within its reservation.

segments or other water bodies on reservations, it

would be practically very difficult to separate out the

effects of water quality impairment on non-Indian fee

land within a reservation with those on tribal portions.

In other words, any impairment that occurs on, or as a

result of, activities on non-Indian fee lands are very

likely to impair the water and critical habitat quality of

the tribal lands. This also suggests that the serious and

substantial effects of water quality impairment within

the non-Indian portions of a reservation are very likely

to affect the tribal interest in water quality.

56 Fed. Reg. at 64,878.

29a

The reservation today consists of

approximately 1850 acres, all of which are in

trust status. The reservation land is very water

rich, with many acres and miles of surface

water and wetland habitat. The Band is very

much reliant upon these resources, which

sustain their lives and their culture physically,

and are integral to the Band's cultural identity.

The resources provide the Band with a reliable

source of food, fresh water, medicines and

Taw materials, while at the same time

nurturing culturally important practices such

as traditional hunting, fishing and gathering.

Therefore, the Band's intention to protect and

regulate water quality within the reservation is

consistent with the desire to safeguard these

resources.

The largest area of surface water on the

reservation, Rice Lake, covers 320 acres with

an additional 320 acres of adjacent wetland

habitat . . . Rice Lake is wholly contained

within the reservation boundaries and is prime

habitat for the largest single strand of inland

emergent wild rice in the world. Wild rice

serves as the foundation for the Band's diet, as

it has for centuries. The Rice Lake rice is also

critical to the Band's economy, with a portion

of it sold to other Tribes and inter-Tribal

organizations as_ seed. Although _ the

relationship between wild rice and water

quality is only beginning to be fully

understood, it is clear from the disappearance

of wild rice over much of its range that wild

rice is sensitive to environmental changes, i.e.,

degradation. The Band's water quality

30a

standards provide a mechanism for protecting

this important resource.

Swamp Creek, which flows through the

reservation, contains a diverse assemblage of

both cold and warm water species. At its

confluence with Rice Lake, it is considered a

high quality cold water habitat; as it leaves

Rice Lake it is designated as a high quality

warm water habitat. Swamp Creek feeds Rice

Lake, accounting for nearly 35 percent of the

total volume of water in the lake.

In addition, other surface water resources

within and/or partially within the reservation

include: Gliske Creek, a cold water trout

stream supporting naturally viable brook and

brown trout; Logan Creek and Amuck Creek,

both cold water streams; and, Bishop Lake, a

warm water habitat. There are also large

wetland complexes adjacent to each of these

resources, as well as isolated wetlands.

The EPA further concluded that the Sokaogon Tribe

has the authority to regulate the water resources within the

reservation:

EPA need not answer the complicated and

fact-specific question of whether the State

retains title to the beds of navigable waters

within the Mole Lake Reservation. The

answer to this question depends upon a

detailed analysis of Congressional intent at the

time of creation of the Mole Lake

Reservation. The State's citation to the

decision in Wisconsin v. Baker, 698 F.2d

1323 (7" Cir. 1983) . . . is of limited value

here, since it deals with a different reservation

3la —~

... and thus different historical circumstances.

Nonetheless, EPA need not resolve this issue

since, even if the State did retain title to the

beds of the Mole Lake Reservation, EPA

could, for the reasons expressed below,

properly conclude that the Band has adequate

civil regulatory authority over the water

resources on the Reservation to establish

water quality standards under Section 303 ef

the CWA.

{Ujnder Section 518 of the CWA, Congress

clearly expressed its intent to permit Tribes to

regulate waters located within the exterior

boundaries of Indian reservations where they

can demonstrate the authority and capability

to do so. All lands within the Reservation,

including those riparian to the navigable

waters for which the Band intends to set

standards, are held in trust for the Band by the

Federal government. Of course, the Band

clearly has regulatory authority over all

members of the Band. Since all of the

Reservation lands are trust lands, the Band

will necessarily possess authority over all

persons on Reservation lands who may be

engaging in activities that may affect the

quality of those waters.

Furthermore, we understand that, as a matter

of the common law of Wisconsin, while the

State may retain title under the equal footing

doctrine to the beds of navigable lakes, title to

the beds of navigable rivers, streams, or

creeks has subsequently passed to the riparian

land owner, subject to any restrictions

imposed by the public trust doctrine . . ..

32a

In light of this pattern of ownership, we

believe it is largely irrelevant whether the

Band could "control the activities" of non-

members who might be present on lakes

within the Reservation if the State holds title

to the lake beds and grants access thereto. We

think the likelihood that such activities have

occurred or have had any impact on water

quality is remote. The factual situation

suggests that the Band can adequately regulate

virtually all activities which might affect the \

quality of Reservation waters . . ..

This conclusion is consistent with § 1377(e)(2) and

related EPA regulations. Although the court questions

whether Congress intended such a result, both the statute and

legislative history are ambiguous and the EPA was charged

with administering the CWA. The EPA's construction is

reasonable and permissible.

Two points are worthy of note. First, the EPA is

entitled to considerable deference in its interpretation of the

Clean Water Act because it is charged with administering the

Act. See Chevron, 467 U.S. at 844; Arkansas v. Oklahoma,

503 U.S. 91, 112 (1992). In the Clean Water Act, Congress

provided the EPA with "substantial statutory discretion."

Arkansas, 503 U.S. at 107. Second, it is a deeply rooted

principle of the Supreme Court's Indian jurisprudence that

"statutes are to be construed liberally in favor of the Indians,

with ambiguous provisions interpreted to their benefit."

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766

(1985).

B. The_ State of Wisconsin's Establishment

Clause Claim is Without Merit.

Alternatively, the State argues that permitting the

Sokaogon Tribe to administer the WQS program, given the

33a

prominent role of religion in its regulatory program, violates

the establishment clause. The First Amendment provides in

relevant part: "Congress shall make no law respecting an

establishment of religion . . ..". U.S. Const. amend. L

Government action does not violate the Establishment Clause

if "[t]he challenged governmental action has a secular

purpose, does not have the principal or primary effect of

advancing or inhibiting religion, and does not foster an

excessive entanglement with religion." Lamb's Chapel _v.

Center Moriches Union Free School District, 508 U.S. 384,

395 (1993).

The State of Wisconsin's Establishment Clause claim

is premature. This case is not a challenge to any particular

water quality standards. Instead, the State challenges EPA's

approval of the Sokaogon Tribe's application for authority to

develop such standards. As a result, the State's

Establishment Clause claim is rejected.

Now, therefore,

IT IS ORDERED that Environmental Protection

Agency's (EPA) Motion for Summary Judgment: (Doc. #49)

is granted.

IT IS FURTHER ORDERED that the Sokaogon

Chippewa Community's Motion for Summary Judgment

(Doc. #59) is granted.

IT IS FURTHER ORDERED that the State of

Wisconsin's Motion for Summary Judgment (Doc. #65) is

denied. -

34a

Dated at Milwaukee, Wisconsin, this 28" day of

April, 1999.

BY THE COURT

/s/

C. N. CLEVERT

U. S. District Judge

35a

United States District Court

EASTERN DISTRICT OF WISCONSIN

JUDGMENT IN A CIVIL CASE

STATE OF WISCONSIN,

Plaintiff,

v. . Case No. 96-C-90

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY and

CAROL BROWNER,

Defendants,

and

SOKAOGON CHIPPEWA COMMUN ITY,

Intervening Defendant.

This action came before the court. The issues have

been decided and a decision has been rendered.

36a

IT IS ORDERED AND ADJUDGED that this case is

dismissed.

APPROVED:

C.N. CLEVERT

U. S. District Judge

_SOFRON B. NEDILSKY _

Clerk

4-28-99 /s/

Date (By) Deputy Clerk

37a

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 5

77 WEST JACKSON BOULEVARD

CHICAGO, IL 60604-3590

Sep 29 1995

REPLY TO THE ATTENTION OF

R-19J

Mr. Arlyn Ackley, Sr.

Tribal Chairman

Mole Lake Band of the

Lake Superior Chippewa

Sokaogon Chippewa Community

Route 1, Box 625

Crandon, Wisconsin 54520

Dear Mr. Ackley:

It is my pleasure to inform you of my decision to approve the

application of the Mole Lake Band of the Lake Superior

Chippewa, Sokaogon Chippewa Community, to administer

the water quality standards program pursuant to the Clean

Water Act, Section 303.

The Mole Lake Band has satisfied all of the requirements set

forth at the Code of Federal Regulations, Title 40, Part 131 8,

“Requirements for Indian Tribes to be treated as States for

purposes of water quality standards", including

demonstrating its authority over all water resources on the

reservation.

The Sokaogon Chippewa Community's water quality

Standards will be approved under separate cover pending

receipt of United States Fish and Wildlife Service

concurrence.

ne

38a

I have attached a copy of the memorandum from Robert

Perciasepe, Assistant Administrator for the Office of Water,

which concurs with my decision.

If you have any questions or would like additional

information, please contact Ms. Claudia Johnson-Schultz at

(312) 886-6108.

Sincerély yours,

/s/

Valdas V. Adamkus

Regional Administrator

Enclosure

cc: Mr. George Meyer, Secretary, Wisconsin DNR

I

39a

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

WASHINGTON, D.C..

Aug 28 1995

Office of

Water

MEMORANDUM

SUBJECT: Application for Mole Lake Band of the Lake

Superior Tribe of Chippewa Indians for

Authority to Administer the Water Quality

Standards Program

_ FROM: Robert Perciasepe /s/

- Assistant Administrator

TO: Valdas V. Adamkus

Regional Administrator, Region V

I am pleased to inform you that I have approved the

application from the Mole Lake Band, requesting authority to

administer the water quality standards program under Section

303 of the CWA, as required under the Agency's Delegation

of Authority No. 2-78 and you may so notify the Tribe.

The Mole Lake Band received "treatment as a State"

status for Section 106 on June 29, 1992. Therefore, the Tribe

need only: (1) describe the agency which will assume

primary responsibility to establish, review, implement and

revise water quality standards; and (2) describe the technical

and administrative capabilities of the staff to administer and

manage an effective water quality standards program or a

plan which proposes how the Tribe will acquire additional

administrative and technical expertise. The Mole Lake Band

has demonstrated they have the needed staff to administer the

40a

program, and they have authority over water resources on the

reservation.

I have attached a copy of the Office of General

Counsel's and Office of Enforcement's concurrence

memoranda for your records.

Should you have any questions or need further

information, you may have your staff contact Dave Sabock of.

the Water Quality Standards Branch at 260-1315.

Attachments

4la

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

WASHINGTON, D.C. 20460

OFFICE OF

ENFORCEMENT AND

COMPLIANCE ASSURANCE

MEMORANDUM

SUBJECT: Application for the Mole Lake Band of the

Lake Superior Tribe of the Chippewa Indians

for Authority to Administer the Water Quality

. Standards Program

FROM: Elaine G. Stanle,, Director /s/

Office of Compliance

TO: Robert Perciasepe

Assistant Administrator for Water

Our review of the application for the Mole Lake Band

of the Lake Superior Tribe of the Chippewa Indians for

authority to administer a water quality program under Section

303 of the Clean Water Act indicates that no enforcement

issues are raised. In accordance with section 2-78 of the

Delegations Manual, dated April 3, 1989, the Office of

Enforcement and Compliance Assurance concurs on the

application of the Mole Lake Band of the Lake Superior

Tribe of the Chippewa Indians to conduct a water quality

Standards program under Section 303 of the Clean Water Act.

cc: Kenneth A. Fenner, Region V

James J. Havard, OGC

42a

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

WASHINGTON, D.C. 20460

Aug 22 1995

OFFICE OF

GENERAL COUNSEL

MEMORANDUM

SUBJECT: Application of the Mole Lake Band of the

Lake Superior Tribe of Chippewa Indians for

Treatment In the Same Manner as a State

under Section 303 of the Clean Water Act —

REQUEST FOR CONCURRENCE

FROM: | Jonathan Z. Cannon /s/ -

Assistant Administrator (General Counsel)

TO: Robert Perciasepe i

Assistant Administrator for Water - ‘

Region V has requested the concurrence of the Office

of Water in the Region's decision to approve the application

of the Mole Lake Band of the Lake Superior Tribe of

Chippewa Indians (the Band) for treatment in the same

manner as a State under Section 303 of the Clean Water Act

(CWA). The concurrence of the Office of General Counsel

is also required under the Agency's Delegation of Authority

No. 2-78 because it is the first section 303 application from

an Indian Tribe in Region V.

Background

Section 518(e)(2) of the CWA specifies that, in order

to qualify for treatment in the same manner as a State, a

43a

Tribe must demonstrate that it: (1) is a federally recognized

Tribe, (2) has a governing body carrying out substantial

governmental duties and powers, (3) has adequate authority

Over water resources within a reservation, and (4) is

reasonably expected to be capable of administering the

program the Tribe is seeking to administer. EPA regulations

at 40 CFR § 131.8 require a Tribe to submit an application

which demonstrates that it meets each of these four criteria.

If a Tribe has previously submitted an application for

approval under another EPA program, it need only submit

any additional information unique to the current program. 40

CFR § 131.8(b)(6). '

OGC Review

We reviewed the Band's application and supporting

documents, the Regional Administrator's memorandum

outlining his proposed eligibility determination, and the

analysis of the Region V Office of Regional Counsel (ORC).

We note that the Band has already been approved for

treatment in the same manner as a State under Section 106 of

the CWA.

A. Federal _Recognition/Substantial Duties and

Powers

In approving the Band's Section 106 application, the

Agency previously determined that the Band is federally-

recognized and possesses a government exercising

substantial duties and powers. We concur in the Region's

finding that these requirements continue to be met.

B. Jurisdiction

The Band seeks approval for waters that are within its

Reservation. All lands within the Reservation are held in

trust for the Band by the Federal government. ORC has

found, and the State of Wisconsin has not disputed, that the

44a

Band has authority over the activities of Band members on

those trust lands that may impact the quality of Reservation

waters. We concur in this finding.

The State, however, questions "the ability of the

[B]and to control the activities of others on any public

waterways that are held to be within its reservation," in light

of the equal footing and public trust doctrines. Letter from

George E. Meyer, Secretary, State of Wisconsin Department

of Natural Resources to Valdas V. Adamkus, Regional

Administrator, EPA Region IV (sic), December 7, 1994. The

State argues that it owns the beds of navigable waters within

the Reservation pursuant to the equal footing doctrine. In

addition, the State asserts that any claim of authority the

Band has over waters and waterbeds is subject to the public

trust doctrine, which charges the State with the duty of

administering and protecting all navigable waters within the

State for the good of the public.

The ORC memo of May 19, 1995 concludes, and we

agree, that EPA need not answer the complicated and fact-

specific question of whether the State retains title to the beds

of navigable waters within the Mole Lake Reservation. The

answer to this question depends upon a detailed analysis of

Congressional intent at the time of creation of the Mole Lake

Reservation. The State's citation to the decision in

Wisconsin v. Baker, 698 F.2d 1323 (7 Cir. 1983) (finding

State sovereignty over navigable waters within an Indian

reservation), is of limited value here, since it deals with a

different reservation (the Lac Court Oreilles) and thus

different historical circumstances. Nonetheless, EPA need

not resolve this issue since, even if the State did retain title to

the beds of the Mole Lake Reservation, EPA could, for the

reasons expressed below, properly conclude that the Band

has adequate civil regulatory authority over the water

resources on the Reservation to establish water quality

standards under Section 303 of the CWA.

45a

As discussed in the ORC memo, under Section 518 of

the CWA, Congress clearly expressed its intent to permit

Tribes to regulate waters located within the exterior

boundaries of Indian reservations where they can

demonstrate the authority and capability to do so. All lands

within the Reservation, including those riparian to the

navigable waters for which the Band intends to set standards,

are held in trust for the Band by the Federal government. Of

course, the Band clearly has regulatory authority over all

members of the Band. Since all of the Reservation lands are

trust lands, the Band will necessarily possess authority over

all persons on Reservation lands who may be engaging in

activities that may affect the quality of those waters.

Furthermore, we understand that, as a matter of the

common law of Wisconsin, while the State may retain title

under the equal footing doctrine to the beds of navigable

lakes, title to the beds of navigable rivers, streams, or creeks

has subsequently passed to the riparian land owner, subject to

any restrictions imposed by the public trust doctrine. On the

Mole Lake Reservation, title to the beds of the streams and

creeks, even if once possessed by the State, has now passed

to the Band (as beneficial owner of the trust lands). Thus, the

Band may also exercise regulatory authority over all

activities occurring on the creeks within the Mole Lake

Reservation even if once held by the State.

In light of this pattern of ownership, we believe it is

largely irrelevant whether the Band could "control the

activities" of non-members who might be present on lakes

within the Reservation if the State holds title to the lake beds

and grants access thereto. We think the likelihood that such

activities have occurred or have had any impact on water

quality is remote. The factual situation Suggests that the

Band can adequately regulate virtually all activities which

might affect the quality of Reservation waters. We also

doubt that, in the case of a reservation such as this one, where

all the lands (except perhaps those within the navigable

46a

waters themselves) are Tribal trust lands, a court would even

find the need to examine the scope of Tribal authority over

non-members’ activities (since there are no non-Indian lands

owned in fee by non-members, only lands arguably owned by

the State).

Nonetheless, even if the scope of the Band's authority

over non-members’ activities were relevant here, we believe

that the Band could easily establish jurisdiction by showing

that the effect of the activities of such non-members on the

health and welfare_of the Band would be "serious and

substantial." EPA has already determined that, as a general

matter :

because of the mobile nature of pollutants in

surface waters and the relatively.small size of

. . . water bodies on reservations, it would be

practically very difficult to separate out the

effects of water quality impairment on non-

Indian fee land within a reservation with those

on tribal portions. In other words any

impairment that occurs on, or as a result of,

activities on non-Indian fee lands are very

likely to impair the water and critical habitat

quality of the tribal lands.

56 Fed. Reg. 64,876, 64,878 col 3. (Dec. 12, 1991).

Furthermore, the CWA _ reflects a Congressional

determination that activities which impair water quality have

a serious and substantial impact on health and welfare. This

generalized finding seems especially appropriate where, as

on the Mole Lake Reservation, all or virtually all lands are

Tribal or trust lands. In addition, the Mole Lake decision

package demonstrates that the Band is very much reliant on

the availability of the water resources within the Reservation,

as these resources sustain the lives of the Band and are

integral to the Band's cultural integrity. In particular, Rice

Lake, the largest water body, is a prime source of wild rice

47a

which serves as a significant-diet and economic resource for

the Band. Memo from Valdas V. Adamkus, Regional

Administrator, to Robert Perciasepe, Assistant Administrator

for Water, June 2, 1995. Thus, any activities of non-

members in the navigable waters of the Reservation which

would impair the water quality could be expected to have a

serious and substantial effect on the health and welfare of the

Band.

For these reasons, we support the conclusion of the

ORC that the Band has demonstrated adequate jurisdiction to

administer the Section 303 water quality standards program.

C. Capability

Region V has concluded that the Band satisfies the

capability requirement. Because this is a factual question

best addressed by the EPA office with the greatest experience

working with the Band, we defer to the Region's conclusion.

Conclusion

Based on our review, we concur in the Region's

determination that the Band may be treated in the same

manner as a State for purposes of section 303 of the CWA.

CC: Valdas V. Adamkus

Steven A. Herman

48a

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

November 28, 2001

Before

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit

“ Judge

No. 99-2618

STATE OF WISCONSIN,

Plaintiff-Appellant,

v. Appeal from the United

States District Court

ENVIRONMENTAL PROTECTION for the Eastern

AGENCY and CHRISTIE District of Wisconsin

WHITMAN, ,

Defendants-Appellees, No. 96-C-90

and Charles N. Clevert,

Judge

SOKAOGON CHIPPEWA ;

COMMUNITY,

Intervening Defendant-Appellee.

‘Pursuant to Fed. R. App. P. 43(c), Christie Whitman

is substituted as a-party for Carol M. Browner.

49a

ORDER

On consideration of the petition for rehearing and

rehearing en banc filed in the above matter by counsel for the

plaintiff-appellant, all members of the original panel voted to

DENY rehearing. No judge in regular active service

requested:a vote on rehearing en banc. Accordingly,

IT IS ORDERED that the aforesaid petition for

rehearing be, and the same is DENIED.

50a

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 5

77 WEST JACKSON BOULEVARD

CHICAGO, IL 60604-3590

“Jun 2 1995

REPLY TO THE ATTENTION OF

R-19J

MEMORANDUM

SUBJECT: Proposed Water Quality Standards Program of

the Mole Lake Band of the Lake Superior

Tribe of Chippewa Indians, Sokaogon

Chippewa Community

FROM: Valdas V. Adamkus

Regional Administrator

TO: Robert Perciasepe

Assistant Administrator for Water (4101)

This memorandum is to request your concurrence on my

decision to grant the Mole Lake Band of the Lake Superior

Tribe of Chippewa Indians, Sokaogon Chippewa Community

(the "Band") "treatment as a State" status for the Clean Water

-Act's Water Quality Standards program. As set forth below,

the Band meets all of the statutory and regulatory criteria for

such treatment. To assist you in making your determination,

I am attaching a complete package of information for your

review.

Background: The Mole Lake Reservation is located in Forest

County in northeastern Wisconsin. The reservation today

consists of approximately 1850 acres, all of which are in trust

status. The reservation land is very water rich, with many

Sla

acres and miles of surface water and wetland habitat. The

Band is very much reliant upon these resources, which

Sustain their lives and their culture physically, and are

integral to the Band's cultural identity. The resources

provide the Band with a reliable source of food, fresh water,

medicines and raw materials, while at the same time

nurturing culturally important practices such as traditional

hunting, fishing and gathering. Therefore, the Band's

intention to protect and regulate water quality within the

reservation is consistent with the desire to safeguard these

resources.

The largest area of surface water on the reservation, Rice

Lake, covers 320 acres with an additional 320 acres of

adjacent wetland habitat. A map has been attached for your

reference [Attachment 1]. Rice Lake is wholly contained

within the reservation boundaries, and is prime habitat for the

largest single stand of inland emergent wild rice in the world.

Wild rice serves as the foundation for the Band's diet, as it

has for centuries. The Rice Lake rice is also critical to the

Band's economy, with a portion of it sold to other Tribes and

inter-Tribal organizations as seed. Although the relationship

between wild rice and water quality is only beginning to be

fully understood, it is clear from the disappearance of wild

rice over much of its range that wild rice is sensitive to

environmental changes, i.e., degradation. The Band's water

quality standards provide a mechanism for protecting this

important resource.

Swamp Creek, which flows through the reservation, contains

a diverse assemblage of both cold and warm water species.

At its confluence with Rice Lake, it is considered a high

quality cold water habitat; as it leaves Rice Lake it is

designated as a high quality warm water habitat. Swamp

Creek feeds Rice Lake, accounting for nearly 35 percent of

the total volume of water in the lake.

52a

In addition, other surface water resources within and/or

partially within the reservation include: Gliske Creek, a cold

water trout stream supporting naturally viable brook and

brown trout; Logan Creek and Amuck Creek, both cold water

streams; and, Bishop Lake, a warm water habitat. There are

also large wetland complexes adjacent to each of these

resources, as well as isolated wetlands.

Statutory and Regulatory Requirements: Section 518(e) of

the Clean Water Act sets forth the requirements for a Tribe to

be treated as a State for the Water Quality Standards

program. Regulations implementing that Section are

promulgated at 40 C.F.R. Part 131.8. The Band and the

Region have met all substantive and procedural requirements

of Part 131.8, as explained below:

Section 131.8(a)(1) and (2): Federal Recognition;

Governmental Functions. These requirements are

identical to the Federal recognition and governmental

functions requirements for the Clean Water Act

Section 106 and 314 programs. Since the Band has

already demonstrated that it meets these requirements

for the Clean Water Act Section 106 and Section 314

programs [Attachments 2 and 3], it does not have to

demonstrate that it meets these requirements for this

program. 59 Fed. Reg. 64,340 (December 14, 1994).

40 C.F.R. Part 131.8(6)(6).

Section 131.8(a)(3): Jurisdiction. The Band has

demonstrated that the functions to be performed in

regulating the water quality of the surface water

resources are within its jurisdiction. Specifically, all

lands within the reservation are held in trust for the

Band by the United States and all of the water

resources lie within the reservation boundaries.

During its comment period, the State of Wisconsin

raised a competing claim of jurisdiction regarding the

status of land title to the beds of navigable waters.

53a

After consultation with the Office of General Counsel

and the Department of the Interior, the Office of

Regional Counsel has determined that the State's

argument lacks merit and that the Band has adequate

jurisdiction to receive program authorization.

[Attachment 4].

Section 131.8(a)(4):_ Capability. In my judgement,

the Band is reasonably expected to be capable of

carrying out the functions of an effective water

quality standards program in a manner consistent with

the terms and purposes of the Clean Water Act by the

existence of management and technical skills, by the

existence of institutions to exercise executive,

legislative, and judicial functions, by a history of

successful managerial performance of public health

and environmental programs, and by acceptable

accounting and procurement procedures.

The Mole Lake Band demonstrates the requisite

management and technical skills and history of

successful management performance through its

existing environmental programs. The Band has

maintained a multi-media environmental office for 4

years, with the addition of staff expertise in the areas

of water quality, data management and planning. The

Band has received numerous grants under the Clean

Water Act, Resource Conservation and Recovery Act,

the Clean Air Act and the Indian General Assistance

Program. At the present time, the Tribal

environmental department is performing reservation-

wide monitoring of its surface waters, air quality and

ground water. In addition, the Band has been

working on the development of a water quality

standards program for several years with financial

and technical assistance from the Region. The Band

has submitted several well-written drafts of the water

quality standards regulations to the Region for review

S4a

and comment and held a formal public hearing to

gather comments on its water quality standards on

May 13, 1995.

The Band's government includes a Tribal Council,

which carries out executive and legislative functions,

and a Tribal Court, which carries out judicial

functions.

The Region's oversight of Agency _ grants

administered by the Band confirms the acceptability

of the Band's accounting and procurement procedures

established in past treatment as a State applications.

Section 131.8(b): Completeness of Application. The

August 13, 1994, application submitted by the Band

contains all of the elements required by the Agency

regulations as simplified by EPA's December 12,

1994, Final Rule on Indian Tribes; Eligibility for

Program Authorization, 59 Fed. Reg. 64,339, 40

C.F.R. Part 131.8(b)(6): a narrative statement

describing the capability of the Band to administer an

effective water quality standards program, including a

description of the existing staff who will assume

primary responsibility for establishing, reviewing

implementing and revising water quality standards;

and a description of the technical and administrative

capabilities of that staff. [Attachment 5].

Section 131.8(c): Application Processing. The

Region promptly notified the Band of receipt of its

application and, within 30 days, also notified the

State of Wisconsin. The notification to the State

included information on the substance and basis of

the Band's assertion of authority to regulate the

quality of reservation waters. As set forth in the

previously cited opinion of the Office of Regional

Counsel, the State of Wisconsin raised a competing

55a

claim of jurisdiction, and the State and Band

submitted comments in support of their positions.

Based upon these comments and the opinion of the

Office of Regional Counsel, I have determined that

the Band has adequately demonstrated that it meets

the requirements of 40 C.F.R. Part 131.8(a)(3).

In sum, I recommend the Mole Lake Band of the Lake

Superior Tribe of Chippewa Indians, Sokaogon Chippewa

Community for "treatment as a State" under the Water

Quality Standards program. My staff and I believe that the

Band is capable and experienced in environmental program

management and implementation and possesses a genuine

interest in environmental protection. It is my determination,

as Regional Administrator, that the Mole Lake Band of the

Lake Superior Tribe of Chippewa Indians, Sokaogon

Chippewa Community meets all the applicable statutory and

regulatory requirements for treatment as a State and is thus

eligible to submit a water quality standards package for

approval by the Region. I request your formal concurrence

on this determination.

If you should have any questions regarding the information

submitted, please contact Barry DeGraff, acting Director of

the Water Division, at 312/353-2147.

/s/

Valdas V. Adamkus

Attachments

CONCUR:

Robert Perciasepe Date

Assistant Administrator for Water

NON

CONCUR:

Robert Perciasepe Date

Assistant Administrator for Water

56a

Attachment 4

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 5

77 WEST JACKSON BOULEVARD

CHICAGO, IL 60604-3590

MAY 19 1995

REPLY TO THE ATTENTION OF

a CM-29A

MEMORANDUM

SUBJECT: Authority of the Mole Lake Band of the Lake

Superior Chippewa Indians, Sokaogon

Chippewa Community, to Regulate the

Quality of Reservation Waters

FROM: Marc M. Radell

Associate Regional Counsel

THROUGH: Gail C. Ginsberg

Regional Counsel

TO: Valdas V. Adamkus

Regional Administrator

After reviewing the assertion by the Mole Lake Band of the

Lake Superior Chippewa Indians, Sokaogon Chippewa

Community (the "Band") of the authority to regulate the

quality of reservation waters and the competing claim of

jurisdiction raised by the State of Wisconsin, the Office of

Regional Counsel believes that the Band has the authority it

asserts. We therefore recommend that, pursuant to 40 C.F.R.

§ 131.8(c) (4), you determine that the Band has adequately

demonstrated that it meets the jurisdictional requirements of

57a

40 C.F.R. § 131.8(a) (3). In reaching our opinion, ORC

consulted with the Office of General Counsel and the

Department of Interior's Office of the Solicitor.

On August 13, 1994, the Band submitted an application to

the Region for "treatment as a State" for the Clean Water Act

Section 303 water quality standards program. On November

4, 1994, the State of Wisconsin raised a competing claim of

jurisdiction on the application and requested an additional 90

days to supplement its comments [Attachment 1].- On

November 18, 1994, you provided the Band with a copy of

the State's competing claim and provided both parties until

December 5, 1994 to submit additional comments on the

issue. The Band and State submitted additional comments to

the Region on December 5 and 7, respectively [Attachments

2 and 3].

The State of Wisconsin asserts that, pursuant to the equal

footing doctrine and the Northwest Ordinance of 1787, it

gained ownership of all lake beds within its borders when it

achieved statehood in 1848. The State also argues that the

1939 Executive Order creating the reservation does not

expressly convey the lake beds to the Band and exigent

circumstances which would suggest that conveyance was

implicit in the creation of the reservation did not exist at the

time of the Executive Order. In the absence of such express

conveyance or exigent circumstances, the State maintains,

the lake beds could not have been transferred from State

ownership. Finally, the State asserts that any claim of

authority the Band has over streams and streambeds is

subject to the Public Trust Doctrine, which charges the State

with the duty of administering ‘and protecting all navigable

waters within the State for the good of the public.

After consultation with the Office of General Counsel and

the Department of the Interior's Office of the Solicitor, ORC

believes that we need not reach the issue of ownership of

water beds within the reservation to resolve the competing

58a

claim of jurisdiction. The statutory scheme of the Clean

Water Act does not link ownership of lake beds with

regulation of water quality. Rather, the Act contemplates

geographic location of the water resources as_ the

determinative factor. Section 518(e) (2) of the Act clearly

expresses Congress's intent that American Indian Tribes are

the appropriate authorities to manage and protect water

resources within reservations. Therefore, we do not reach the

issue of whether the State owns lake beds within the Mole

Lake reservation. In addition, we believe that the

Congressional intent that Tribes regulate water quality within

reservations preempts any claim that the State may have

under the Public Trust Doctrine to regulate the water quality

of streams within the reservation. See California v. Cabazon

Band of Mission Indians, 480 U.S. 202, 216 (1987).

For these reasons, we believe that the Band has the authority

to regulate water quality within its reservation and

recommend that, pursuant to 40 C.F.R. § 131.8(c) (4), you

determine that the Band has adequately demonstrated that it

meets the jurisdictional requirements of 40 C.F.R. § 131.8(a)

(ja

Attachments

cc: Jo Lynn Traub

59a

ATTACHMENT |

State of Wisconsin \ DEPARTMENT OF NATURAL

RESOURCES

101 South Webster Street

Box 7921

Madison, Wisconsin 53707

TELEPHONE 608-266-2621

TELEFAX 608-267-3579

TDD 608-267-6897

November 4, 1994 M-2802

Mr. Valdas V. Adamkus

Administrator, Region V

United States Efivironmental Protection Agency

77 West Jackson Boulevard

Chicago, I] 60604-3590

SUBJECT: Mole Lake Band of the Lake Superior

Tribe of Chippewa Indians Request for

Authority under Section 303 of the

Clean Water Act -

Dear Mr. Adamkus:

On October 7, 1994 I received from you a letter dated

October 5, 1994 regarding the above-referenced request for

authority. You indicated in your letter that this agency has

30 days from the receipt of your letter to comment on

possible competing claims of jurisdiction. This letter is

intended to provide those comments. For the reasons stated

below, we request an additional 90 days to finalize comments

on this request.

Before I comment on possible issues of jurisdiction, I would

like to comment generally on our relationship with the

Chippewas.

60a

For well over a decade the State of Wisconsin and the

Chippewas have been involved in litigation and in less

formal dispute resolution forums regarding how natural

resources ought best be managed, and who should do the

managing. While we may have differences on these issues, I

am personally convinced that the Chippewas have a deep and

abiding interest in the protection of these resources. With

respect to implementation of the Clean Water Act, we have a

strong interest in working with tribal authorities throughout

Wisconsin to develop, where appropriate, mutually

acceptable approaches to protection of water quality.

Consequently, nothing which follows should be taken as a

statement critical of the Mole Lake Band's interest in proper

resource management.

As noted above, your request is for comments on “possible

competing claims of jurisdiction." The Department does

believe there may be a significant jurisdictional claim on

behalf of the State that may inhibit application of section 303

status to Indian Tribes in Wisconsin.

Under what has come to be known as "Wisconsin's Public

Trust Doctrine," the State of Wisconsin was granted title to

the beds of all navigable waters in the state. The origin of

this doctrine is found in the 1783 Virginia Act of Session,

Northwest Ordinance, Act of July 13, 1787, article IV, I Stat.

51. Subsequent case law has held that state title to navigable

waters superseded rights gained by the tribes in federal

treaties which created their reservations. These state rights

may preclude granting to tribes in Wisconsin Section 303

"State" designation.

As you can see, this is a complex legal issue. Rather than try

to produce a final position within a short 30-day comment

period, I am requesting that the Department be provided an

additional 90 days from the date of this letter to complete our

comments. I think this is a reasonable request, particularly in

light of the fact that your letter only asked for an

6la

identification of "possible" claims of jurisdiction. I believe

that it is in the best interests of everyone if we proceed to

address this issue before proceeding further with a section

303 "State" designation. A 90 day period for completion of

comments on this most important of issues seems very

reasonable.

Sincerely,

/s/ "George"

George E. Meyer

Secretary

ATTACHMENT 2

SOKAOGON CHIPPEWA COMMUNITY

MOLE LAKE BAND

RT. 1, BOX 625

CRANDON, WISCONSIN 54520-9635

(715) 478-2604

December 5, 1994

Valdas V. Adamkus, Administrator

United States Environmental Protection Agency

Region-V

Regional Administrator's Office, 19" Floor, Metcalf Building

77 W. Jackson Blvd.

Chicago, IL 60604-3590

Subject: Mole Lake Band of the Lake Superior

Chippewa Tribe, CWA Section 303

Treatment as A State (TAS) Application.

Dear Val:

Thank you for the opportunity to address the State of

Wisconsin's comments on this Tribe's TAS application. I am

encouraged to see that the approval process is moving ahead

quickly. My legal staff has provided a summary response to

the States competing claim of jurisdiction. This is attached

for your review and consideration.

My staff has informed me that you will consult with the

Department of Interior (DOI) on these matters. We

respectfully request to be notified of all correspondence with

DOI. We are confident that we are able to assist both your

Agency and DOI as the consultation process proceeds.

The water quality standards we provided to you on

November 18 are currently being reviewed based on

63a

comments from the water division. We hope to respond

before the holidays.

We look forward to receiving TAS and program delegation

in the near future. I will discuss this and other matters with

you as we continue to work together toward improving Tribal

relations with the Agency and the protection of the

Reservation environments.

Sincerely,

/s/

Arlyn Ackley, Sr., Tribal Chairman

Mole Lake Band of the Lake Superior Chippewa

Sokaogon Chippewa Community

enc. TAS Response —- Mole Lake Legal Department

64a

SOKAOGON CHIPPEWA COMMUNITY

MOLE LAKE BAND

RT. 1, BOX 625

CRANDON, WISCONSIN 54520-9635

(715) 478-2604

Memorandum

To: Arlyn Ackley Sr., Tribal Chairman

CC: John Griffin/DuWayne Derickson

From: Legal Department

Date: December 5, 1994

Subject: Sokaogon Chippewa Community's Request

for Program Authorization Under Clean Water

Act Section 303.

In accordance with the November 18, 1994 EPA Region V

letter, in which the agency requested information from the

tribe by December 5, 1994, the following are reasons for the

agency to reject the State of Wisconsin's (WDNR's) claim of

competing jurisdiction, as that jurisdiction might apply to the

tribe's right to gain "treatment as State" designation, and to

the tribe's right to set water quality standards on waters

within its reservation.

The WDNR, in its November 4, 1994 letter to the

EPA, claims that the State of Wisconsin's Public Trust

Doctrine, and accordingly the State of Wisconsin's title to

beds of navigable waters within the State, "may preclude

granting to tribes in Wisconsin Section 303 "State"

designation." The State fails to recognize the specific

65a

purpose of the Clean Water Act, especially the 1987

amendments, which show the federal government's manifest

intent to allow tribes to regulate water quality within the

tribe's reservation.

By enacting the Federal Water Pollution Control Act,

33 U.S.C.S. § 1251, et. seq. (1994) (popularly known as the

"Clean Water Act"), Congress declared its intent to "restore

and maintain the chemical, physical, and biological integrity

of the Nation's waters." 33 U.S.C.S. § 1251(a)(1994). The

“waters of the United States" encompass "bodies of waters

wholly within a state whose use or misuse could affect

interstate commerce." 40 C.F.R. § 230.3. By rule and by

federal court decision, "waters of the United States" include

waters overlying streams and lakebeds to which a state holds

title. United States v. Ashland Oil and Transp. Co., 504 F.2d

1317 (6 Cir. 1974).

The 1987 Amendments to the Clean Water Act added

a new section 518 which required EPA to promulgate

regulations specifying how the Agency would treat qualified

Indian Tribes as States for the purposes of, among others, the

§ 303 (water quality standards) and § 401 (certification)

programs. In its final rule, 40 C.F.R. pt. 131, (effective

January 1, 1992) the EPA recognized the federal government's

intent to allow Tribes to regulate surface water quality within

the tribe's reservation. In promulgating its final rule, the EPA

made the following comment on the tribe's right to set water

quality standards:

EPA also believes -that Congress has

expressed a preference for Tribal regulation of

surface water quality to assure compliance

with the goals of the CWA. This is confined

by the text and legislative history of section

518 itself...the treatment of Indian Tribes as

States means that Tribes are to be primarily

responsible for the protection of reservation

66a

water resources. As Senator Burdick, floor

manager of the 1987 Clean Water Act

Amendments explained, the purpose of

section 518 was to "provide for clean water

for the people of the Nation." 133 Cong. Rec.

$1018 (daily ed. Jan. 21, 1987). This goal

was to be accomplished, he asserted, by

giving "tribes" ...the primary authority to set

water quality standards to assure fishable and

swimmable water and to satisfy all beneficial

uses." Id., cited in 56 Fed. Reg. 64878-79

(1991). (emphasis added).

Because federal preemption principles apply, neither

the Wisconsin Public Trust Doctrine, nor the State of

Wisconsin's alleged ownership of the beds of navigable waters

in Wisconsin allows the State to compete with the tribe's right,

pursuant to federal legislation and agency rule, to receive

"treatment as State" status, and to set surface water quality

standards. Federal preemption occurs when a state law

conflicts with a valid exercise of a congressional power. The

federal law overrides any contrary state law pursuant to the

Supremacy Clause, U.S. Const., art. VI, sec. 2: A federal

statute or an agency regulation can preempt state authority.

Chrysler Corp. v. Brown, 441 U.S. 281, 295-96 (1979).’

Another case that shows the preemption power of a federal law

or agency regulation over alleged State authority is Minnesota v. Block,

660 F.2d 1240 (8" Cir. 1981). Pursuant to the Boundary Waters Canoe

Area Wilderness Act of 1978, the Department of Interior prohibited the

use of motorized crafts within the federal reservation (Boundary Waters

Canoe Wilderness Area). The State of Minnesota argued against the

prohibition of motorized crafts, by arguing the regulation affected state-

owned waters. Acknowledging that the State of Minnesota owns the beds

of all the lakes and rivers within the federal reservation (BWCWA), the

court held, pursuant to the Supremacy Clause (U.S. Constitution), that the

federal regulations, based on congressional intent, applied to the state-

owned waters within the federal reservation.

67a

The WDNR has hinted that State of Wisconsin v. Baker,

698 F.2d 1323 (1983) supports the State's claim of competing

jurisdiction. The WDNR will likely argue that language found

at page. 1335 of the Baker opinion supports the WDNR's claim

against the Sokaogon Band:

[W]e agree with Judge Doyle that the 1854

treaty did not convey to the Band (Lac Courte

Oreilles Band of Lake Superior Chippewa)

sovereignty over navigable waters within its

reservation and that exclusive sovereignty

over them is in the State. 524 F.Supp. at 733-

35. Baker at 1335.

Unlike the Lac Courte Oreilles Band in Baker, the

Sokaogon Band's right to obtain "TAS" status, and to set water

quality standards on its reservation waters arises from specific

federal law, not from a treaty. The 1987 CWA Amendments,

including sec. 518 are more recent than the 1983 Baker

_decision.

Furthermore, a 1987 United States Supreme Court

decision, Utah Division of State Lands v. United States, et _al.,

482 U.S. 193 (1987), again enunciates the principle that the

Federal Government maintains control of navigable waters

overlying state-owned lakebeds. Utah Division was a dispute

between the federal and state government over oil and gas

leases on state-owned lakebeds. The Court ultimately held for

the State of Utah, using the "equal footing doctrine" as the basis

for the State's right to title of the bed. However, the Court

distinguished the Federal Government's rights to the waters over

the state-owned beds:

~

[MJoreover, even if the land under

navigable waters passes to the State, the

federal government may still control,

develop, and use the waters for its own

purposes. Arizona v. California, 373 U.S.

68a

546, 597-98 (1963). Congress for example,

may intend to create a reservoir, but also

intend to let the State obtain title to the land

underneath the reservoir upon entry into

statehood. Such an intent is not unusual. In

Montana _v. United States, 450 U.S. 544

(1981), we found that Congress intended to

permit the State to take title to the bed of a

navigable river even though the river was in

the midst of an Indian Reservation, and in

United States v. Holt State Bank, supra, we

held that Congress intended the State to hold

title to the bed of a navigable lake wholly

within the boundaries of an _ Indian

Reservation. Utah Division at 202. (emphasis

~-added)

Therefore, Baker's claim that "exclusive sovereignty

over them [navigable waters] is in the State" overstated the

State's power in relation to conflicting federal. power. The

Federal Government has recognized that Tribes may be treated

as States, and indeed, as explained above, that Tribes would be

given preference in setting water quality standards on the

Tribes' reservations. Tribes qualify for treatment as states for

purposes of grants for pollution control programs, grants for the

construction of treatment facilities, establishment of water

quality standards and tribal implementation plans,

implementation of permit systems, and participation in the clean

lakes program. See C.W.A., 33 U.S.C. sec. 1377(e) (1994).

Congressional intent and recent caselaw supports preemption of

the State of Wisconsin's alleged claims of competing

jurisdiction. Therefore the Sokaogon Chippewa Community

should respectfully request that the EPA Region V grant the

Tribe's CWA section 303 Treatment as A State for program

authorization.

69a

ATTACHMENT 3

tate of Wisconsin \ DEPARTMENT OF NATURAL

RESOURCES

101 South Webster Street

Box 7921

Madison, Wisconsin 53707

TELEPHONE 608-266-2621

TELEFAX 608-267-3579

TDD 608-267-6897

December 7, 1994 M-2802

Mr. Valdas V. Adamkus,

Administrator, Region IV Via FAX: _12-5-94

United States Environmental

Protection Agency Via U.S. Mail: _12-6-94

77 West Jackson Boulevard

Chicago, IL 60604-3590

SUBJECT: — Continuation of State Comments

Regarding the Mole Lake Band's

Request for Authority under Section

303 of the Clean Water Act

Dear Mr. Adamkus:

Thank you for the opportunity to expand our comments on

the Mole Lake Band's request for jurisdiction over navigable

waters for the purpose of establishing water quality

standards.

The State of Wisconsin enjoys sovereignty over all navigable

waters located within state boundaries based on the public

trust doctrine and the underlying equal footing doctrine. The

public trust doctrine provides that the State, in its sovereign

Capacity, bears the responsibility of insuring that all

navigable waters are maintained and protected for public use.

The public's right to the use of all navigable waters, and the

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State's duty to protect those waters, vested at the time of

Wisconsin's admission to the Union in 1848.

The equal footing doctrine is based on English common law

principles which dictate that ownership of submerged lands is

of the utmost importance to the sovereign's ability to control

the use of navigable waters. Moreover, according to English

common law, all submerged lands beneath navigable waters

were presumed to be owned by the sovereign. Shively v.

Bowlby, 152 U.S. 2, 11-12 (1894). Therefore, when the

thirteen original colonies gained their independence from

Great Britain, they succeeded to the English crown's title to

the beds and banks of navigable waters. Pursuant to the

continuing adherence to this doctrine, the Northwest

Ordinance of 1787 declared that when new states were

created from the lands within the Northwest Territory (which

included Wisconsin), these states were to enjoy the same

status as the original thirteen colonies upon admission to the

Union. The thirteen original states ceded the Northwest

Territory to the federal government on several conditions.

Specifically, the federal government was (1) to hold lands

underlying navigable waters only in trust for the future

States, (2) to admit all new states to the Union with the same

rights of sovereignty as the original states, and (3) to allow

the navigable waters of these new states to be "common

highways and forever free."

Title to submerged lands vested automatically in the state

upon admission to the Union without further action from

Congress. Shively, 152 U.S. at 15. Based on the "equal

footing" and "public trust" doctrines, the Wisconsin Supreme

Court has held that:

The United States never had title, in the

Northwest Territory... to the beds of lakes,

ponds, and navigable rivers, except in trust for

public purposes; and its trust in that regard

was transferred to the state, and must there

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continue forever, so far as necessary to the

enjoyment thereof by the people of this

commonwealth. Illinois Steel Co. v. Bilot,

109 Wis. 418, 426 (1901).

Thus, when Wisconsin achieved statehood in 1848,

ownership of all submerged lands under navigable waters

vested in the State. Wisconsin subsequently embraced and

preserved the "forever free" concept for navigable waters

through passage of the Wisconsin Enabling Act, sec. 3, 9

Stats. 56, and under the State Constitution. Const., art. IX,

sec. 1. Numerous cases throughout the state's history

reaffirm the public's right to the use of all navigable waters

within the boundaries of the state. See generally Diana

Shooting Club v. Husting, 156 Wis. 261 (1914); Muench v.

Public Service Commission, 261 Wis. 492 (1952).

The establishment of the Mole Lake Reservation in 1939

with the purchase of 1,680 acres by the federal government

could not create tribal ownership of submerged lakebeds

within or adjacent to the reservation. These lands (i.e. the

lakebeds) were already owned by the State of Wisconsin.

The United States Supreme Court has stated that the

presumption should always be against the transfer of

ownership of submerged lands.

In Montana v. United States, 67 L.Ed 2d 493 (1981), the

United States Supreme Court discussed the effect of the

creation of an Indian reservation on state ownership of

submerged lands. Id. at 501. The Court concluded that since

the control over submerged lands beneath navigable waters is

so strongly identified with the sovereign power of

government, "it will not be held that the United States has

conveyed such land except because of some international

duty or public exigency." Id. at 502. The Court further noted

that courts should "begin with a strong presumption against

conveyance by the United States and must not infer such a

72a

conveyance .. unless the intention was definitely declared or

otherwise made plain." Id.

Thus, according to Montana, the presumption is strong

against a conveyance of submerged lands to a tribe upon the

creation of a reservation. Such a conveyance can only be

shown if (1) the intent to transfer title to submerged lands is

specifically expressed in the language of the treaty or (2) if

exigent circumstances existed at the time of the signing of the

treaty which would suggest that the conveyance was implicit

in the creation of the reservation. Here the reservation was

not created by the treaty, but by an executive order issued

pursuant to Section 7 of the Indian Reorganization Act of

1934, 25 U.S.C. 467. The state is aware of no metes and

bounds description of the reservation which would include

navigable lakebeds. Rather, the reservation was created by

the purchase of upland acreage. In any case there is no treaty

record of an intent to abrogate the state's rights to navigable

waters. In Wisconsin v. Baker, 698 F.2d 1323 (7 Cir.

1983), the Seventh Circuit Court of Appeals applied this

standard to another Wisconsin Chippewa tribe's claim to

jurisdiction over navigable waters. The court interpreted the

relevant treaty language, and ruled that establishing a

reservation "for the use of" the Chippewa tribe did not

explicitly transfer jurisdiction over navigable waters within

the reservation to the tribe. The Court also rejected the

Tribe's contention that the circumstances at the signing of the

treaty were sufficiently exigent to imply that the federal

government intended to transfer sovereignty to the Tribe.

Finally, any claim of authority over streams and streambeds

must also be examined in light of the Public Trust Doctrine.

While Wisconsin law recognizes that streambeds are owned

by the adjacent riparian, this right is subject to the pre-

existing rights of the State of Wisconsin under the Public

Trust Doctrine. The State of Wisconsin is charged with the

duty of administering and protecting all navigable waters for

the good of the public and insuring that all navigable waters

73a

remain “forever free” for the people to use. Wis. Const., art.

IX., sec. 1. Private ownership of the land beneath navigable

waters is subject to the state's sovereignty over those waters

which was obtained upon statehood and its powers to

preserve them as "forever free" and open for public use.

The Mole Lake Band, in spite of its quasi-sovereign status

has only very limited authority to regulate the waters within

its reservation boundaries. While the State of Wisconsin is

not attempting here to assert jurisdiction over the activities of

the Mole Lake Band, it must question the ability of the band

to control the activities of others on any public waterways

that are held to be within its reservation. To put it simply,

EPA may have the authority to delegate state status, but the

Mole Lake Band does not have jurisdiction to fully

implement that authority.

Sincerely,

/s/

George E. Meyer

Secretary

v:\9501\lc9adamk.mal

cc: Governor Tommy Thompson

Attorney General James Doyle

Arlyn Ackley, Chairman, Sokaogon Chippewa

Community

Erhard Huettl, Chairman, Forest County Board

74a

33 U.S.C.S.

§ 1313. Water quality standards and implementation

plans

(a) Existing water quality standards. (1) In order to carry

out the purpose of this chapter, any water quality standard

applicable to interstate waters which was adopted by any

State and submitted to, and approved by, or is awaiting

approval by, the Administrator pursuant to this Act as in

effect immediately prior to October 18, 1972, shall remain

in effect unless the Administrator determined that such

standard is not consistent with the applicable requirements

of this Act as in effect immediately prior to October 18,

1972. If the Administrator makes such a determination he

shall, within three months after October 18, 1972, notify

the State and specify the changes needed to meet such

requirements. If such changes are not adopted by the State

within ninety days after the date of such notification, the

Administrator shall promulgate such changes in

accordance with subsection (b) of this section.

(2) Any State which, before October 18, 1972, has

adopted, pursuant to its own law, water quality standards

applicable to intrastate waters shall submit such standards

to the Administrator within thirty days after October 18,

1972. Each such standard shall remain in effect, in the

same manner and to the same extent as any other water

quality standard established under this chapter unless the

Administrator determines that such standard is

inconsistent with the applicable requirements of this Act

as in effect immediately prior to October 18, 1972. If the

Administrator makes such a determination he shall not

later than the one hundred and twentieth day after the date

of submission of such standards, notify the State and

specify the changes needed to meet such requirements. If

such changes are not adopted by the State within ninety

days after such notification, the Administrator shall

75a

promulgate such changes in accordance with subsection

(b) of this section.

(3)(A) Any State which prior to October 18, 1972, has not

adopted pursuant to its own laws water quality

standards applicable to intrastate waters shall, not later

tha) one hundred and eighty days after October 18,

1972, adopt and submit such standards to the

Administrator.

(B) If the Administrator determines that any such

Standards are consistent with the applicable

requirements of this Act as in effect immediately prior

to October 18, 1972, he shall approve such standards.

(C) If the Administrator determines that any such

standards are not consistent with the applicable

requirements of this Act as in effect immediately prior

to October 18, 1972, he shall, not later than the

ninetieth day after the date of submission of such

Standards, notify the State and specify the changes to

meet such requirements. If such changes are not

adopted by the State within ninety days after the date of

notification, the Administrator shall promulgate such

." standards pursuant to subsection-(b) of this section.

(b) Proposed regulations. (1) The Administrator shall

promptly prepare and publish proposed regulations setting

forth water quality standards for a State in accordance

with the applicable requirements of this Act as in effect

immediately prior to October 18, 1972, if—

(A) the State fails to submit water quality standards

within the times prescribed in subsection (a) of this

section.

(B) a water quality standard submitted by such State

under subsection (a) of this section is determined by the

Administrator not to be consistent with the applicable

requirements of subsection (a) of this section.

(2) The Administrator shall promulgate any water quality

standard published in a proposed regulation not later

than one hundred and ninety days after the date he

76a

publishes any such proposed standard, unless prior to

such promulgation, such State has adopted a water

quality standard which the Administrator determines to

be in accordance with subsection (a) of this section.

(c) Review; revised standards; publication. (1) The

Governor of a State or the State water pollution control

agency of such State shall from time to time (but at ieast

once each three year period beginning with October 18,

1972) hold public hearings for the purpose of reviewing

applicable water quality standards and, as appropriate,

modifying and adopting standards. Results of such review

shall be made available to the Administrator.

(2)(A) Whenever the State revises or adopts a new

standard, such revised or new standard shall be

submitted to the Administrator. Such revised or new

water quality standard shall consist of the designated

uses of the navigable waters involved and the water

quality criteria for such waters based upon such uses.

Such standards shall be such as to protect the public

health or welfare, enhance the quality of water and

serve the purposes of this chapter. Such standards shall

be established taking into consideration their use and

value for public water supplies, propagation of fish and

wildlife, recreational purposes, and agricultural,

industrial, and other purposes, and also taking into

consideration their use and value for navigation.

(B) Whenever a State reviews water quality standards

pursuant to paragraph (1) of this subsection, or revises

or adopts new standards pursuant to this paragraph,

such State Shall adopt criteria for all toxic pollutants

listed pursuant to section 1317(a)(1) of this title for

which criteria have been published under section

1314(a) of this title, the discharge or presence of which

in the affected waters could reasonably be expected to

interfere with those designated uses adopted by the

State, as necessary to support such designated uses.

Such criteria shall be specific numerical criteria for

77a

such toxic pollutants. Where such numerical criteria are

not available, whenever a State reviews water quality

standards pursuant to paragraph (1), or revises or adopts

new standards pursuant to this paragraph, such State

shall adopt criteria based on biological monitoring or

assessment methods consistent with information

published pursuant to section 1314(a)(8) of this title.

Nothing in this section shall be construed to limit or

delay the use of effluent limitations or other permit

conditions based on or involving biological monitoring

or assessment methods or previously adopted numerical

criteria.

(3) If the Administrator, within sixty days after the date of

submission of the revised or new standard, determines that

such standard meets the requirements of this chapter, such

standard shall thereafter be the water quality standard for

the applicable waters of that State. If the Administrator

determines that any such revised or new standard is not

consistent with the applicable requirements of this chapter,

he shall not later than the ninetieth day after the date of

submission of such standard notify the State and specify

the changes to meet such requirements. If such changes

are not adopted by the State within ninety days after the

date of notification, the Administrator shall promulgate

such standard pursuant to paragraph (4) of this subsection.

(4) The Administrator shall promptly prepare and publish

proposed regulations setting forth a revised or new water

quality standard for the navigable waters involved—

(A) if a revised or new water quality standard submitted

by such State under paragraph (3) of this subsection for

such waters is determined by the Administrator not to

be consistent with the applicable requirements of this

chapter, or

(B) in any case where the Administrator determines that

a revised or new standard is necessary to meet the

requirements of this chapter.

The Administrator shall promulgate any revised or new

standard under this paragraph not later than ninety days

78a

after he publishes such proposed standards, unless prior to

such promulgation, such State has adopted a revised or

new water quality standard which the Administrator

determines to be in accordance with this chapter.

(d) Identification of areas with insufficient controls;

maximum daily load; certain effluent limitations

revision. (1)(A) Each State shall identify those waters

within its boundaries for which the effluent limitations

required by section 1311(b)(1)(A) and_ section

1311(b)(1)(B) of this title are not stringent enough to

implement any water quality standard applicable to

such waters. The State shall establish a priority ranking

for such waters, taking into account the severity of the

pollution and the uses to be made of such waters.

(B) Each State shall identify those waters or parts

thereof within its boundaries for which controls on

thermal discharges under section 1311 of this title are

not stringent enough to assure protection and

propagation of a balanced indigenous population of

shellfish, fish, and wildlife.

(C) Each State shall establish for the waters identified

in paragraph (1)(A) of this subsection, and in

accordance with the priority ranking, the total

maximum daily load, for those pollutants which the

Administrator identifies under section 1314(a)(2) of

this title as suitable for such calculation. Such load shall

be established at a level necessary to implement the

applicable water quality standards with seasonal

variations and a margin of safety which takes into

account any lack of knowledge concerning the

relationship between effluent limitations and water

quality.

(D) Each State shall estimate for the waters identified in

paragraph (1)(B) of this subsection the total maximum

daily thermal load required to assure protection and

propagation of a balanced, indigenous population of

shellfish, fish and wildlife. Such estimates shall take

79a

into account the normal water temperatures, flow rates,

seasonal variations, existing sources of heat input, and

the dissipative capacity of the identified waters or parts

thereof. Such estimates shall include a calculation of

the maximum heat input that can be made into each

such part and shall include a margin of safety which

takes into account any lack of knowledge concerning

the development of thermal water quality criteria for

such protection and propagation in the identified waters

or parts thereof.

(2) Each State shall submit to the Administrator from time

to time, with the first such submission not later than one

hundred and eighty days after the date of publication of

the first identification of pollutants under section

1314(a)(2)(D) of this title, for his approval the waters

identified and the loads established under paragraphs

(1)(A), (1)(B), (1)(C), and (1)(D) of this subsection. The

Administrator shall either approve or disapprove such

identification and load not later than thirty days after the

date of submission. If the Administrator approves such

identification and load, such State shall incorporate them

into its current plan under subsection (e) of this section. If

the Administrator disapproves such identification and

load, he shall not later than thirty days after the date of

such disapproval identify such waters in such State and

establish such loads for such waters as he determines

necessary to implement the water quality standards

applicable to such waters and upon such identification and

establishment the State shall incorporate them into its

current plan under subsection (e) of this section.

(3) For the specific purpose of developing information,

each State shall identify all waters within its boundaries

which it has not identified under paragraph (1)(A) and

(1)(B) of this subsection and estimate for such waters the

total maximum daily load with seasonal variations and

margins of safety, for those pollutants which the

Administrator identifies under section 1314(a)(2) of this

title as suitable for such calculation and for thermal

80a

discharges, at a level that would assure protection and

propagation of a balanced indigenous population of fish,

Shellfish and wildlife.

(4) Limitations on revision of certain effluent limitations.

(A) Standard not attained. For waters identified under

paragraph (1)(A) where the applicable water quality

standard has not yet been attained, any effluent

limitation based on a total maximum daily load or other

waste load allocation established under this section may

be revised only if (i) the cumulative effect of all such

revised effluent limitations based on such total

maximum daily load or waste load allocation will

assure the attainment of such water quality standard, or

(ii) the designated use which is not being attained is

removed in accordance with regulations established

under this section.

(B) Standard attained. For waters identified under

paragraph (i)(A) where the quality of such waters

equals or exceeds levels necessary to protect the

designated use for such waters or otherwise required by

applicable water quality standards, any effluent

limitation based on a total maximum daily load or other

waste load allocation established under this section, or

any water quality standard established under this

section, or any other permitting standard may be

revised only if such revision is subject to and consistent

with the antidegradation policy established under this

section.

(e) Continuing planning process. (1) Each State shall have

a continuing planning process approved under paragraph

(2) of this subsection which is consistent with this chapter.

(2) Each State shall submit not later than 120 days after

October 18, 1972, to the Administrator for his approval a

proposed continuing planning process which is consistent

with this chapter. Not later than thirty days after the date

of submission of such a process the Administrator shall

either approve or disapprove such process. The

8la

Administrator shall from time to time review each State's

approved planning process for the purpose of insuring that

such planning process is at all times consistent with this

chapter. The Administrator shall not approve any State

permit program under subchapter IV of this chapter for

any State which does not have an approved continuing

planning process under this section.

(3) The Administrator shall approve any continuing

planning process submitted to him under this section

which will result in plans for all navigable waters within

such State, which include, but are not limited to, the

following:

(A) effluent limitations and schedules of compliance at

least as stringent as those required by section

1311(b)(1), section 1311(b)(2), section 1316, and

section 1317 of this title, and at least as stringent as any

requirements contained in any applicable water quality

standard in effect under authority of this section;

(B) the incorporation of all elements of any applicable

area-wide waste management plans under section 1288

of this title, and applicable basin plans under section

1289 of this title;

(C) total maximum daily load for pollutants in

accordance with subsection (d) of this section;

(D) procedures for revision;

(E) adequate authority for intergovernmental

cooperation;

(F) adequate implementation, including schedules of

compliance, for revised or new water quality standards,

under subsection (c) of this section:

(G) controls over the disposition of all residual waste

from any water treatment processing;

(H) an inventory and ranking, in order of priority, of

needs for construction of waste treatment works

required to meet the applicable requirements of sections

1311 and 1312 of this title.

82a

(f) Earlier compliance. Nothing in this section shall be

construed to affect any effluent limitation, or schedule of

compliance required by any State to be implemented prior to

the dates set forth in sections 1311(b)(1) and 1311(b)(2) of

this title nor to preclude any State from requiring compliance

with any effluent limitation or schedule of compliance at

dates earlier than such dates.

_ (g) Heat standards. Water quality standards relating to heat

shall be consistent with the requirements of section 1326 of

this title.

(h) Thermal water quality standards. For the purposes of

this chapter the term "water quality standards" includes

thermal water quality standards.

(i) Coastal recreation water quality criteria. (1) Adoption

by States. (A) Initial criteria and standards. Not later

than 42 months after October 10, 2000, each State

having coastal recreation waters shall adopt and submit

to the Administrator water quality criteria and standards

for the coastal recreation waters of the State for those

pathogens and pathogen indicators for which the

Administrator has published criteria under section

1314(a) of this title.

(B) New or revised criteria and standards. Not later

than 36 months after the date of publication by the

Administrator of new or revised water quality criteria

under section 1314(a)(9) of this title, each State having

coastal recreation waters shall adopt and submit to the

Administrator new or revised water quality standards

for the coastal recreation waters of the State for all

pathogens and pathogen indicators to which the new or

revised water quality criteria are applicable.

(2) Failure of States to adopt. (A) In general. If a State

fails to adopt water quality criteria and standards in

accordance with paragraph (1)(A) that are as protective

of human health as the criteria for pathogens and

83a

pathogen indicators for coastal recreation waters

published by the Administrator, the Administrator shall

promptly propose regulations for the State setting forth

revised or new water quality standards for pathogens

and pathogen indicators described in paragraph (1)(A)

for coastal recreation waters of the State.

(B) Exception. If the Administrator proposes

regulations for a State described in subparagraph (A)

under subsection (c)(4)(B), the Administrator shall

publish any revised or new standard under this

subsection not later than 42 months after October 10,

2000.

(3) Applicability. Except as expressly provided by this

subsection, the requirements and procedures of subsection

(c) apply to this subsection, including the requirement in

subsection (c)(2)(A) that the criteria protect public health

and welfare.

84a

§ 1370. State authority

Except as expressly provided in this chapter, nothing in this

chapter shall (1) preclude or deny the right of any State or

political subdivision thereof or interstate agency to adopt or

enforce (A) any standard or limitation respecting discharges

of pollutants, or (B) any requirement respecting control or

abatement of pollution; except that if an effluent limitation,

or other limitation, effluent standard, prohibition,

pretreatment standard, or standard of performance is in _.

under this chapter, such State or political subdivision or

interstate agency may not adopt or enforce any effluent

limitation, or other limitation, effluent standard, prohibition,

pretreatment standard, or standard of performance which is

less stringent than the effluent limitation, or other limitation,

effluent standard, prohibition, pretreatment standard, or

standard of performance under this chapter; or (2) be

construed as impairing or in any manner affecting any right

or jurisdiction of the States with respect to the waters

(including boundary waters) of such States.

85a

§ 1377. Indian tribes

(a) Policy. Nothing in this section shall be construed to

affect the application of section 1251(g) of this title, and all

of the provisions of this section shall be carried out in

accordance with the provisions of such section 1251(g) of

this title. Indian tribes shall be treated as States for purposes

of such section 1251(g) of this title.

(b) Assessment of sewage treatment needs; report. The

Administrator, in cooperation with the Director of the Indian

Health Service, shall assess the need for sewage treatment

works to serve Indian tribes, the degree to which such needs

will be met through funds allotted to States under section

1285 of this title and priority lists under section 1296 of this

title, and any obstacles which prevent such needs from being

met. Not later than one year after February 4, 1987, the

Administrator shall submit a report to Congress on the

assessment under this subsection, along with

recommendations specifying (1) how the Administrator

intends to provide assistance to Indian tribes to develop

waste treatment management plans and to construct treatment

works under this chapter, and (2) methods by: which the

participation in and administration of programs under this

chapter by Indian tribes can be maximized.

(c) Reservation of funds. The Administrator shall reserve

each fiscal year beginning after September 30, 1986, before

allotments to the States under section 1285(e) of this title,

one- half of one percent of the sums appropriated under

section 1287 of this title. Sums reserved under this

subsection shall be available only for grants for the

development of waste treatment management plans and for

the construction of sewage treatment works to serve Indian

tribes, as defined in subsection (h) of this section and former

Indian reservations in Oklahoma (as determined by the

Secretary of the Interior) and Alaska Native Villages as

defined in Public Law 92-203 [43 USCS §§ 1601 et seq.].

86a

|

(d) Cooperative agreements. In order to ensure the

consistent implementation of the requirements of this

chapter, an Indian tribe and the State or States in which the

lands of such tribe are located may enter into a cooperative

agreement, subject to the review and approval of the

Administrator, to jointly plan and administer the

requirements of this chapter.

(e) Treatment as States. The Administrator is authorized to

treat an Indian tribe as a State for purposes of subchapter II

of this chapter and sections 1254, 1256, 1313, 1315, 1318,

1319, 1324, 1329, 1341, 1342, 1344, and 1346 of this title to

the degree necessary to carry out the objectives of this

section, but only if—

(1) the Indian tribe has a governing body carrying out

substantial governmental duties and powers;

(2) 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, held by the United

States in trust for Indians, held by a member of an Indian

tribe if such property interest is subject to a trust

restriction on alienation, or otherwise within the borders of

an Indian reservation; and

(3) the Indian tribe is reasonably expected to be capable,

in the Administrator's judgment, of carrying out the

functions to be exercised in a manner consistent with the

terms and purposes of this chapter and of all applicable

regulations.

Such treatment as a State may include the direct-provision of

funds reserved under subsection (c) of this section to the

governing bodies of Indian tribes, and the determination of

-priorities by Indian tribes, where not determined by the

Administrator in cooperation with the Director of the Indian

Health Service. The Administrator, in cooperation with the

Director of the Indian Health Service, is authorized to make

grants under subchapter II of this chapter in an amount not to

exceed 100 percent of the cost of a project. Not later than 18

———————————————————o |

87a

months after February 4, 1987, the Administrator shall, in

consultation with Indian tribes, promulgate final regulations

which specify how Indian tribes shall be treated as States for

purposes of this chapter. The Administrator shall, in

promulgating such regulations, consult affected States

sharing common water bodies and provide a mechanism for

the resolution of any unreasonable consequences that may

arise as a result of differing water quality standards that may

be set by States and Indian tribes located on common bodies

of water. Such mechanism shall provide for explicit

consideration of relevant factors including, but not limited to,

the effects of differing water quality permit requirements on

upstream and downstream dischargers, economic impacts,

and present and historical uses and quality of the waters

subject to such standards. Such mechanism should provide

for the avoidance of such unreasonable consequences in a

manner consistent with the objective of this chapter.

(f) Grants for nonpoint source programs. The

Administrator shall make grants to an Indian tribe under

section 1329 of this title as though such tribe was a State. Not

more than one-third of one percent of the amount

appropriated for any fiscal year under section 1329 of this

title may be used to make grants under this subsection. In

addition to the requirements of section 1329 of this title, an

Indian tribe shall be required to meet the requirements of

paragraphs (1), (2), and (3) of subsection (d) of this section in

order to receive such a grant.

(g) Alaska Native organizations. No provision of this

chapter shall be construed to—

(1) grant, enlarge, or diminish, or in any way affect the

scope of the governmental authority, if any, of any Alaska

Native organization, including any federally-recognized

tribe, traditional Alaska Native council, or Native council

organized pursuant to the Act of June 18, 1934 (48 Stat.

987), over lands or persons in Alaska;

88a

(2) create or validate any assertion by such organization or

any form of governmental authority over lands or persons

in Alaska; or

(3) in any way affect any assertion that Indian country, as

defined in section 1151 of Title 18, exists or does not exist

in Alaska.

(h) Definitions. For purposes of this section, the term—

(1) "Federal Indian reservation" means all land within the

limits of any Indian reservation under the jurisdiction of

the United States Government, notwithstanding the

issuance of any patent, and including rights-of-way

running through the reservation; and

(2) "Indian tribe" means any Indian tribe, band, group, or

community recognized by the Secretary of the Interior and

exercising governmental authority over a Federal Indian

reservation.

89a

CODE OF FEDERAL REGULATIONS

TITLE 40--PROTECTION OF ENVIRONMENT

CHAPTER I--ENVIRONMENTAL PROTECTION

AGENCY

SUBCHAPTER D--WATER PROGRAMS

PART 131--WATER QUALITY STANDARDS

SUBPART A--GENERAL PROVISIONS

S 131.8 Requirements for Indian Tribes to administer a water

quality standards program.

(a) The Regional Administrator, as determined based

on OMB Circular A-105, may accept and approve a tribal

application for purposes of administering a water quality

standards program if the Tribe meets the following criteria:

(1) The Indian Tribe is recognized by the Secretary of

the Interior and meets the definitions in s 131.3 (k) and (1),

(2) The Indian Tribe has a governing body carrying out

substantial governmental duties and powers,

(3) The water quality standards program to be

administered by the Indian Tribe pertains to the management

and protection of water resources which are within the borders

of the Indian reservation and held by the Indian Tribe, within

the borders of the Indian reservation and held by the United

States in trust for Indians, within the borders of the Indian

reservation and held by a member of the Indian Tribe if such

property interest is subject to a trust restriction on alienation, or

otherwise within the borders of the Indian reservation, and

(4) The Indian Tribe is reasonably expected to be

capable, in the Regional Administrator's judgment, of carrying

out the functions of an effective water quality standards

program in a manner consistent with the terms and purposes of

the Act and applicable regulations.

(b) Requests by Indian Tribes for administration of a

water quality standards program should be submitted to the

lead EPA Regional Administrator. The application shall

include the following information:

90a

(1) A statement that the Tribe is recognized by the

Secretary of the Interior.

(2) A descriptive statement demonstrating that the

Tribal governing body is currently carrying out substantial

governmental duties and powers over a defined area. The

statement should:

(i) Describe the form of the Tribal government;

(ii) Describe the types of governmental functions

currently performed by the Tribal governing body such as, but

not limited to, the exercise of police powers affecting (or

relating to) the health, safety, and welfare of the affected

population, taxation, and the exercise of the power of eminent

domain; and

(iii) Identify the source of the Tribal government's

authority to carry out the governmental functions currently

being performed.

(3) A descriptive statement of the Indian Tribe's

authority to regulate water quality. The statement should

include:

(i) A map or legal description of the area over which

the Indian Tribe asserts authority to regulate surface water

quality;

(ii) A statement by the Tribe's legal counsel (or

equivalent official) which describes the basis for the Tribes

assertion of authority and which may include a copy of

documents such as Tribal constitutions, by-laws, charters,

executive orders, codes, ordinances, and/or resolutions which

support the Tribe's assertion of authority; and

(iii) An identification of the surface waters for which

the Tribe proposes to establish water quality standards.

(4) A narrative statement describing the capability of

the Indian Tribe to administer an effective water quality

standards program. The narrative statement should include:

(i) A description of the Indian Tribe's previous

management experience which may include, the administration

of programs and services authorized by the Indian

Self-Determination and Education Assistance Act (25 U.S.C.

450 et seq.), the Indian Mineral Development Act (25 U.S.C.

9la

2101 et seq.), or the Indian Sanitation Facility Construction

Activity Act (42 U.S.C. 2004a);

(ii) A list of existing environmental or public health

programs administered by the Tribal governing body and

copies of related Tribal laws, policies, and regulations;

(iii) A description of the entity (or entities) which

exercise the executive, legislative, and judicial functions of the

Tribal government;

(iv) A description of the existing, or proposed, agency

of the Indian Tribe which will assume primary responsibility

for establishing, reviewing, implementing and revising water

quality standards;

(v) A description of the technical and administrative

capabilities of the staff to administer and manage an effective

water quality standards program or a plan which proposes how

the Tribe will acquire additional administrative and technical

expertise. The plan must address how the Tribe will obtain the

funds to acquire the administrative and technical expertise.

(5) Additional documentation required by the Regional

Administrator which, in the judgment of the Regional

Administrator, is necessary to support a Tribal application.

(6) Where the Tribe has previously qualified for

eligibility or treatment as a State under a Clean Water Act or

Safe Drinking Water Act program, the Tribe need only provide

the required information which has not been submitted in a

previous application.

(c) Procedure for processing an Indian Tribe's

application.

(1) The Regional Administrator shall process an

application of an Indian Tribe submitted pursuant to s 131.8(b)

in a timely manner. He shall promptly notify the Indian Tribe

of receipt of the application.

(2) Within 30 days after receipt of the Indian Tribe's

application, the Regional Administrator shall provide

appropriate notice. Notice shall:

(i) Include information on the substance and basis of

the Tribe's assertion of authority to regulate the quality of

reservation waters; and

\

92a

(ii) Be provided to all appropriate governmental

entities.

(3) The Regional Administrator shall provide 30 days

for comments to be submitted on the Tribal application.

Comments shail be limited to the Tribe's assertion of authority.

(4) If a Tribe's asserted authority is subject to a

competing or conflicting claim, the Regional Administrator,

after due consideration, and in consideration of other

comments received, shall determine whether the Tribe has

adequately demonstrated that it meets the requirements of s

131.8(a)(3).

(5) Where the Regional Administrator determines that a

Tribe meets the requirements of this section, he shall promptly

provide written notification to the Indian Tribe that the Tribe is

authorized to administer the Water Quality Standards program.

[56 FR 64895, Dec. 12, 1991; 59 FR 64344, Dec. 14, 1994]

CHAPTER I--ENVIRONMENTAL PROTECTION

AGENCY

Source: 57 FR 28087, 28088, June 24, 1992, unless

otherwise noted. :

PART 131--WATER QUALITY STANDARDS

Authority: 33 U.S.C. 1251 et seq.

Source: 48 FR 51405, Nov. 8, 1983; 57 FR 60910,

Dec. 22, 1992, unless otherwise noted.

93a

56 FR 64876 Thursday, December 12, 1991

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[WH-FRL-4038-8]

Amendments to the Water Quality Standards Regulation That

Pertain to Standards on Indian Reservations

AGENCY: Environmental Protection

Agency

ACTION: Final rule.

... *64877

C. Response to Public Comments

* * *

*64877

1. Treatment of Tribes as States

Comments on the Authority Requirements

a. The Scope of Inherent Tribal Authority

Comment: The issue of whether and how EPA should

require Tribes to demonstrate that they meet the requirements

of section 518(e)(2) of the CWA, ie., that they can

demonstrate authority to regulate water quality within the

boundaries of their reservations, attracted significant comment.

Numerous commenters remarked on the significance of the

Supreme Court's decision in Brendale v. Confederated Tribes

and Bands of the Yakima Nation, 492 U.S. 408, (1989) for

EPA's programs and today's regulations, although there were

widely differing views of how to read the decision. Several

94a

commenters asserted that Brendale clearly indicates that an

Indian Tribe may not enforce its water quality standards

against non-members of the Tribe on non-Indian-owned fee

lands within the boundaries of the reservation or that, at the

very least, the Tribe must include detailed factuai information

that describes the non-Indian lands the Tribe proposes to

regulate and the reasons supporting its jurisdictional assertions.

By contrast, other commenters asserted that Tribes

invariably possess inherent authority to regulate all reservation

waters, and that EPA should presume the existence of such

authority and not require Tribes to make any specific factual

showing. These commenters asserted that such authority over

environmental matters was recognized in Montana v. United

States, 450 U.S. 544 (1981), and not diminished by Brendale.

Response: EPA does not read the holding in Brendale

as preventing EPA from recognizing Tribes as States for

purposes of regulating water quality on fee lands within the

reservation, even if section 518 is not an express delegation of

authority (an issue discussed in detail below). In Brendale,

both the State of Washington and the Yakima Nation asserted

authority to zone non-Indian real estate developments on two

parcels within the Yakima reservation, one in an area that was

primarily Tribal, the other in an area where much of the land

was owned in fee by nonmembers. Although the Court

analyzed the issues anc the appropriate interpretation of

Montana at considerable length, the nine members split 4:2:3

in reaching the decision that the Tribe should have exclusive

zoning authority over property in the Tribal area and the State

should have exclusive zoning authority over non-Indian owned

property in the fee area. The decision reflects some difficult

issues in this area of the law and, as the comments indicated,

has generated considerable controversy over the extent of

Tribal authority.

Given the lack of a majority rationale, the primary

significance of Brendale is in its result, which was fully

consistent with Montana v. United States, which previously

had held that:

95a

To be sure, Indian tribes retain inherent sovereign power to

exercise some forms of civil jurisdiction over non-Indians on

their reservations, even on non-Indian fee lands. A tribe may

regulate * * * the activities of non-members who enter

consensual relationships with the tribe or its members, through

commercial dealing, contracts, leases, or other arrangements *

* *. A tribe may also retain inherent power to exercise civil

authority over the conduct of non-Indians on fee lands within

its reservation when that conduct threatens or has some direct

effect on the political integrity, the economic security, or the

health or welfare of the tribe.

Montana, 450 U.S. at 565-66 (citations omitted).

In Brendale, the Court applied this test, finding Tribal

authority over activities that would threaten the health and

welfare of the Tribe, 492 U.S. at 443-444 (Stevens, J., writing

for the Court); id. at 449-450 (Blackmun, J. concurring).

Conversely, the Court found no Tribal jurisdiction where the

proposed activities "would not threaten the Tribe's * * * health

or welfare." Id. at 432 (White, J., writing for the Court). The

Agency therefore disagrees with commenters who argue that

Brendale somehow overrules Montana.

As further discussed below, EPA agrees with certain

commenters that pending further judicial or *64878

Congressional guidance on the extent to which section 518

delegates additional authority to Tribes, the ultimate decision

regarding Tribal authority must be made on a Tribe-by-Tribe

basis and has finalized the proposed process for making those

determinations. Thus, EPA rejects the suggestion of other

commenters that EPA make a conclusive statement regarding

the extent of Tribal jurisdiction over fee lands for all Tribes and

all waters or even a statement regarding any particular

reservation, except in the context of an actual treatment as a

State application. This is consistent with the approach the

Agency adopted under the Safe Drinking Water Act, when it

determined that it would not "automatically assume," or adopt,

in the first instance, a rebuttable presumption of tribal authority

over all water within a reservation that would operate even in

the absence of any factual evidence. See 53 FR 37396, 37399

96a

(September 26, 1988). Nonetheless, EPA sees no reason in

light of Brendale to assume that Tribes would be per se unable

to demonstrate authority over water quality management on fee

lands within reservation borders. Rather, as discussed below,

EPA believes that as a general matter there are substantial legal

and factual reasons to assume that Tribes ordinarily have the

legal authority to regulate surface water quality within a

reservation.

In evaluating whether a tribe has authority to regulate a

particular activity on land owned in fee by nonmembers but

located within a reservation, EPA will examine the Tribe's

authority in light of the evolving case law as reflected in

Montana and Brendale. The extent of such tribal authority

depends on the effect of that activity on the tribe. As discussed

above, in the absence of a contrary statutory policy, a tribe may

regulate the activities of non-Indians on fee lands within its

reservation when those activities threaten or have a direct effect

on the political integrity, the economic security, or the health or

welfare of the tribe. Montana, 450 US. at 565-66. However,

in Brendale several justices argued that for a tribe to have "a

protectable interest" in an activity, the activity's effect should

be "demonstrably serious." Brendale, 1492 U.S. at 431 (White,

J.). In addition, in a more recent case involving tribal criminal

jurisdiction, a majority of the Court indicated in dicta that a

tribe may exercise civil authority "where the exercise of tribal

authority is vital to the maintenance of tribal integrity and

self-determination." Duro v. Reina, 110 S.Ct. 2053, 2061

(1990). See also Brendale, 492 U.S. at 450 (Blackmun, J.)

(test for inherent tribal authority whether activities "implicate a

significant tribal interest"); id. at 462 (Blackmun, J.) (test for

inherent tribal authority whether exercise of authority

"fundamental to the political and economic security of the

tribe").

As discussed above, the Supreme Court, in recent

cases, has explored several options to assure that the impacts

upon tribes of the activities of non-Indians on fee land, under

the Montana test, are more than de minimis, although to date

the Court has not agreed, in a case on point, on any one

97a

reformulation of the test. In response to this uncertainty, the

Agency will apply, as an interim operating rule, a formulation

of the standard that will require a showing that the potential

impacts of regulated activities on the tribe are serious and

substantial.

The choice of an Agency operating rule containing this

standard is taken solely as a matter of prudence in light of

judicial uncertainty and does not reflect an Agency

endorsement of this standard per se. Moreover, as discussed

below, the Agency believes that the activities regulated under

the various environmental statutes generally have serious and

substantial impacts on human health and welfare. As a result,

the Agency believes that tribes will usually be able to meet the

Agency's operating rule, and that use of such a rule by the

Agency should not create an improper burden of proof on

tribes or create the administratively undesirable result of

checkerboarding reservations.

_ Whether a tribe has jurisdiction over activities by

nonmembers will be determined case-by-case, based on factual

findings. The determination as to whether the required effect is

present in a particular case depends on the circumstances.

Nonetheless, the Agency may also take into account the

provisions of environmental statutes, and any legislative

findings that the effects of the activity are serious in making a

generalized finding that Tribes are likely to possess sufficient

inherent authority to control reservation environmental quality.

See, e.g., Keystone Bituminous Coal Assoc. v. DeBenedictis,

480 U.S. 470, 476-77 and notes 6, 7 (1987). As a result, in

making the required factual findings as to the impact of a

water-related activity on a particular tribe, it may not be

necessary to develop an extensive and detailed record in each

case. The Agency may also rely on its special expertise and

practical experience regarding the importance of water

management, recognizing that clean water, including critical

habitat (i.e., wetlands, bottom sediments, spawning beds, etc.),

is absolutely crucial to the survival of many Indian

reservations.

98a

The Agency believes that Congressional enactment of

the Clean Water Act establishes a strong federal interest in

effective management of water quality. Indeed, the primary

objective of the CWA "is to restore and maintain the chemical,

physical, and biological integrity of the Nation's waters"

(section 101(a)) and, to achieve that objective, the Act

establishes the goal of eliminating all discharges of pollutants

into the navigable waters of the U.S. and attaining a level of

water quality which is fishable and swimmable (section

101(a)(1)-(2)). Thus the statute itself constitutes, in effect, a

legislative determination that activities which affect surface

water and critical habitat quality may have serious and

substantial impacts.

EPA also notes that, because of the mobile nature of

pollutants in surface waters and the relatively small length/size

of stream segments or other water bodies on reservations, it

would be practically very difficult to separate out the effects of

water quality impairment on non-Indian fee land within a

reservation with those on tribal portions. In other words, any

impairment that occurs on, or as a result of, activities on

non-Indian fee lands are very likely to impair the water and

critical habitat quality of the tribal lands. This also suggests

that the serious and substantial effects of water quality

impairment within the non-Indian portions of a reservation are

very likely to affect the tribal interest in water quality. EPA

believes that a "checkerboard" system of regulation, whereby

the Tribe and State split up regulation of surface water quality

on the reservation, would ignore the difficulties of assuring

compliance with water quality standards when two different

sovereign entities are establishing standards for the same small

stream segments.

EPA also believes that Congress has expressed a

preference for Tribal regulation of surface water quality to

assure compliance with the goals of the CWA. This is

confirmed by the text and legislative history of section 518

itself. The CWA establishes a policy of "recogniz[ing],

preserv[ing]. and protect[ing] the primary responsibilities and

rights of States to prevent, reduce, and eliminate pollution,

99a _

[and] to plan the development and use (including restoration,

preservation, and enhancement) of land and water resources"

section 101(b). By extension, *64879 the treatment of Indian

Tribes as States means that Tribes are to be primarily

responsible for the protection of reservation water resources.

As Senator Burdick, floor manager of the 1987 CWA

Amendments, explained, the purpose of section 518 was to

“provide clean water for the people of this Nation." 133 Cong.

Rec. $1018 (daily ed. Jan 21, 1987). This goal was to be

accomplished, he asserted, by giving "tribes * * * the primary

authority to set water quality standards to assure fishable and

swimmable water and to satisfy all beneficial uses." Id.

In light of the Agency's statutory responsibility for

implementing the environmental statutes, its interpretations of

the intent of Congress in allowing for tribal management of

water quality within the reservation are entitled to substantial

deference. Washington Dept. of Ecology v. EPA, 752 F. 2d

1465, 1469 (9th Cir. 1985); see generally Chevron, USA v.

NRDC, 467 U.S. 837, 843-45 (1984).

The Agency also believes that the effects on tribal

health and welfare necessary to support Tribal regulation of

non-Indian activities on the reservation may be easier to

establish in the context of water quality management than with

regard to zoning, which was at issue in Brendale. There is a

significant distinction between land use planning and water

quality management. The Supreme Court has explicitly

recognized such a distinction: "Land use planning in essence

chooses particular uses for the land; environmental regulation *

* * does not mandate particular uses of the land but requires

only that, however the land is used, damage to the environment

is kept within prescribed limits." California Coastal

Commission v. Granite Rock Co., 480 U.S. 572, 587 (1987).

The Court has relied on this distinction to support a finding that

States retain authority to carry out environmental regulation

even in cases where their ability to carry out general land use

regulation is preempted by federal law. Id. at 587-89.

Further, water quality management serves the purpose

of protecting public health and safety, which is a core

100a

governmental function, whose exercise is critical to

self-government. The special status of governmental actions to

protect public health and safety is well established.’ By

contrast, the power to zone can be exercised to achieve

purposes which have little or no direct nexus to public health

and safety. See e.g. Brendale, see, e.g., Brendale, 492 U.S. at

420 n.5 (White, J.) (listing broad range of consequences of

state zoning decision). Moreover, water pollution is by nature

highly mobile, freely migrating from one local jurisdiction to

another, sometimes over large distances. By contrast, zoning

regulates the uses of particular properties with impacts that are

much more likely to be contained within a given local

jurisdiction.

Operationally, EPA's generalized findings regarding the

relationship of water quality to tribal health and welfare will

affect the legal analysis of a tribal submission by, in effect,

supplementing the factual showing a tribe makes in applying

for treatment as a State. Thus, a tribal submission meeting the

requirements of s 131.8 of this regulation will need to make a

relatively simple showing of facts that there are waters within

the reservation used by the Tribe or tribal members, (and thus

that the Tribe or tribal members could be subject to exposure to

pollutants present in, or introduced into, those waters) and that

the waters and critical habitat are subject to protection under

the Clean Water Act. The Tribe must also explicitly assert that

impairment of such waters by the activities of non-Indians,

would have a serious and substantial effect on the health and

welfare of the Tribe. Once the Tribe meets this initial burden,

EPA will, in light of the facts presented by the tribe and the

generalized statutory and factual findings regarding the

importance of reservation water quality discussed above,

presume that there has been an adequate showing of tribal

jurisdiction of fee lands, unless an appropriate governmental

> This special status has been reaffirmed by all nine justices in the context of

Fifth Amendment takin

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