# Appendix — Wisconsin v. Environmental Protection Agency

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1463%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1121

## Text

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

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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

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Map of the Sokaogon Chippewa (Mole Lake)
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la

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

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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.

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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

Tla

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 th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1463%3A02. Public record. Not legal advice.