# Indian Tribes: Eligibility of Indian Tribes for Financial Assistance; Final Rule ENVIRONMENTAL PROTECTION AGENCY > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-6382 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** March 23, 1994 ## Text SUMMARY: The Clean Water Act contains provisions which authorize EPA to treat Indian tribes in substantially the same manner in which it treats states for purposes of various types of financial assistance. This action contains amendments to the interim final regulations implementing that authority for financial assistance programs. The purpose of these regulatory amendments is to make it easier for tribes to obtain EPA approval to assume the role Congress envisioned for them under this statute. EFFECTIVE DATES: The amendments to the interim final rule are effective March 23, 1994. EPA will accept comments on these amendments until May 23, 1994. ADDRESSES: Comments must be mailed (in duplicate, if possible) to C. Marshall Cain, Office of Federal Activities (A-104), Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460. The docket for this rule and copies of the public documents submitted will be available for public inspection and copying at a reasonable fee at EPA Headquarters Library, Public Information Reference Unit, room 2904, 401 M Street, telephone (202) 260-5926. FOR FURTHER INFORMATION CONTACT: C. Marshall Cain, Office of Federal Activities, U.S. Environmental Protection Agency, 401 M Street, SW., Washington DC 20460, telephone (202) 260-8792. SUPPLEMENTARY INFORMATION: This preamble is organized according to the following outline: I. Introduction II. Regulations Governing Eligibility of Indian Tribes A. The Existing Process 1. Recognition and a Government 2. Jurisdiction and Capability 3. Comment Process 4. Subsequent Tribal Applications B. Workgroup Examination of Process III. Revisions to the Process in Light of Statutory Requirements A. Simplified Determination as To Recognition and Government B. Case by Case Review of Jurisdiction and Capability 1. Simplified Jurisdictional Analysis 2. Capability IV. Summary of Revised Process V. Executive Order 12866 VI. Regulatory Flexibility Act VII. Paperwork Reduction Act I. Introduction: Statutory and Regulatory Background Under its American Indian Policy, EPA works directly with tribal governments as ``sovereign entities with primary authority and responsibility for the reservation populace.'' At the time the Policy was adopted in 1984, the environmental statutes which EPA administers generally did not explicitly address the role of tribes in environmental management, but provided for a joint state and federal role in environmental management. Subsequently, three EPA regulatory statutes have been amended to address the tribal role specifically by authorizing EPA to treat tribes in a manner similar to that in which it treats states: the Clean Water Act (CWA), the Safe Drinking Water Act (SDWA), and the Clean Air Act (CAA).1 --------------------------------------------------------------------------- \1\In addition, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or ``Superfund''), which is primarily a response, rather than a regulatory statute, has also been amended to authorize EPA to treat tribal governments in substantially the same way it treats states with respect to selected provisions of the statute. --------------------------------------------------------------------------- EPA recognizes that tribes are sovereign nations with a unique legal status and a relationship to the federal government that is significantly different than that of states. EPA believes that Congress did not intend to alter this when it authorized treatment of tribes ``as States;'' rather, the purpose of the statutory amendments was to reflect an intent that, insofar as possible, tribes should assume a role in implementing the environmental statutes on tribal land comparable to the role states play on state land. All three regulatory statutes specify that, in order to receive such treatment, a tribe must be federally recognized and possess a governing body carrying out substantial duties and powers. 33 U.S.C. 1377 (e), (h) (CWA); 42 U.S.C. 300j-11 (SDWA); 42 U.S.C. 7601(d) (CAA). In addition, although there are some variations in language among the three statutes, each requires that a tribe possess civil regulatory jurisdiction to carry out the functions it seeks to exercise.2 Finally, all three require that a tribe be reasonably expected to be capable of carrying out those functions. --------------------------------------------------------------------------- \2\Under the Clean Water Act, the tribe must propose to carry out functions that ``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.'' 33 U.S.C. 1377(e)(2). Under the Clean Air Act, ``the functions to be exercised by the Indian tribe [must] pertain to the management and protection of air resources within the exterior boundaries of the reservation or other areas within the tribe's jurisdiction.'' 42 U.S.C. 7601(d)(2)(B). Under the SDWA, the tribe must propose to exercise functions ``within the area of the Tribal Government's jurisdiction.'' 42 U.S.C. 300j-11 (b)(1)(B). --------------------------------------------------------------------------- The Agency initially chose to implement provisions of the Clean Water and Safe Drinking Water Acts regarding Indian tribes by establishing a formal prequalification process under which tribes can seek eligibility under these statutes. This prequalification process has in the past been referred to as approval for ``treatment as a state'' (``TAS''). Tribes that obtain such approval then become eligible to apply for certain grants and program approvals available to states.3 --------------------------------------------------------------------------- \3\By contrast, the provision of CERCLA authorizing EPA to afford a tribal government ``substantially the same treatment as a State'' does not establish any specific criteria a tribe must meet to qualify for such treatment. 42 U.S.C. 9626. EPA has established, by regulation, the criteria of recognition, a government, and jurisdiction, but has not adopted a formal prequalification process under CERCLA. See 40 CFR 300.515(b). The Agency is developing regulations pertaining to the treatment of American Indian tribes under the Clean Air Act. --------------------------------------------------------------------------- II. Regulations Governing Eligibility of Indian Tribes A. The Existing Process The Agency has promulgated five regulations that utilize the ``TAS'' process to date: (1) Safe Drinking Water Act National Drinking Water Regulations and Underground Injection Control Regulations for Indian Lands, 53 FR 37395 (September 26, 1988), codified at 40 CFR parts 35, 124, 141, 142, 143, 144, 145, and 146; (2) Indian Tribes: Water Quality Planning and Management, 54 FR 14353 (April 11, 1989), Comprehensive Construction Grant Regulation Revision, 55 FR 27092 (June 29, 1990) (governing grant programs under the CWA), codified at 40 CFR parts 35 and 130; (3) Amendments to the Water Quality Standards Regulation that Pertain to Standards on Indian Reservations, 56 FR 64876 (December 12, 1991), codified at 40 CFR part 131; (4) Clean Water Act, section 404 Tribal Regulations, 58 FR 8171 (February 11, 1993), codified at 40 CFR parts 232 and 233; and (5) Treatment of Indian Tribes as States for Purposes of sections 308, 309, 401, 402, and 405 of the Clean Water Act (``NPDES'') Rule, 58 FR 67966 (December 22, 1993), codified at 40 CFR parts 122, 123, 124 and 501. Under all of these regulations, before a tribe can obtain financial assistance available to states or obtain approval to operate a program which states are authorized to operate on state lands, the tribe must first formally qualify for ``treatment as a state.'' To qualify, a tribe must submit an application establishing that it is federally recognized, has a governing body carrying out substantial duties and powers, and has adequate jurisdiction and capability to carry out the proposed activities. Once a tribe obtains ``TAS'' approval, it is eligible to apply for financial assistance and program approval. 1. Recognition and Government A tribe typically establishes recognition by showing its inclusion on the list of federally recognized Tribes published by the Secretary of the Interior in the Federal Register. A tribe establishes that it meets the governmental duties and powers requirement with a narrative statement describing the form of the tribal government and the types of functions it performs, and identifying the sources of the tribe's governmental authority. 2. Jurisdiction and Capability To establish jurisdiction under the CWA grant regulations, a tribe must submit a statement signed by a tribal legal official explaining the legal basis for the Tribe's regulatory authority over its water resources. The CWA grant regulations do not require that a tribe submit any specific materials to establish capability. The other regulations specify that a tribe must submit various specific documents to establish jurisdiction, including: a map or legal description of the area over which the tribe claims jurisdiction; a statement by a tribal legal official describing the basis, nature, and subject matter of the tribe's jurisdiction; copies of all documents supporting the jurisdictional assertions; and a description of the locations of the systems or sources the tribe proposes to regulate. Similarly, to establish capability a tribe must submit a narrative statement describing tribal capability to administer an effective program, and certain specific, listed materials in support of that statement. 3. Comment Process Upon receiving a ``TAS'' application under these regulations, EPA notifies all ``appropriate governmental entities,''4 as to the substance of and basis for the jurisdictional assertions in the application, and invites comment on those assertions. Where comments raise a competing or conflicting jurisdictional claim, the Agency must consult with the Department of the Interior before making a final decision on the tribe's application. --------------------------------------------------------------------------- \4\The Agency defines this to include contiguous states, other tribes, and federal land agencies responsible for management of lands contiguous to the reservation. (Amendments to the Water Quality Standards Regulation that Pertain to Standards on Indian Reservations; Final Rule. 56 FR 64875, 64884 (December 12, 1991)). In response to public comments, EPA has considered, but decided against, providing interested political subdivisions of states, including local governments and water districts, the opportunity to comment on tribal jurisdictional assertions. Id. --------------------------------------------------------------------------- In practice, this comment process has sometimes led to delays in the processing and approval of tribal applications. Indeed, it has proven to be the single portion of ``TAS'' review most responsible for delays. The comment process also has created a perception that states have an oversight role in EPA's treatment of Indian tribes, which some tribes find objectionable, particularly since tribes have typically not been asked to offer their views on the scope and extent of state jurisdiction. 4. Subsequent Tribal Applications The regulations require a separate ``treatment as a state'' application for each program for which the tribe seeks such treatment. However, after an initial approval, applications for each additional program need provide only that additional information unique to the additional program. B. Workgroup Examination of Process The Agency's ``TAS'' prequalification process has proven to be burdensome, time-consuming and offensive to tribes. Accordingly, in 1992 EPA established a working group to focus on ways of improving and simplifying that process. The Agency formally adopted the Workgroup's recommendations as Agency policy by Memorandum dated November 10, 1992. That Memorandum explicitly recognized that the policies it adopted would require amendments to existing regulations. The purpose of this regulation is to amend existing financial assistance regulations under the Clean Water Act in order to implement the new policy. To the extent possible, the Agency plans to use the same process in future regulations regarding determinations of tribal eligibility. III. Revisions to the Process in Light of Statutory Requirements No statute compels the use of a formal ``TAS'' or other prequalification process separate from approval of the underlying request for a grant or program approval. The only requirements imposed by statute are that, to be eligible for financial assistance and/or program authorization, a tribe must be federally recognized, have a governing body carrying out substantial duties and powers, and have adequate jurisdiction and capability to carry out the proposed activities. Thus, EPA may authorize a tribal program or grant without formally designating the tribe as ``eligible for TAS,'' so long as the Agency establishes that the tribe meets applicable statutory requirements. In other words, the Agency can ensure compliance with statutory mandates without requiring tribes to undergo a discrete, formal process of seeking ``TAS'' approval. Accordingly, EPA is amending its regulations to eliminate ``TAS'' review as a separate step in the processing of a tribal application for a grant. Under the new, simplified process, the Agency will ensure compliance with statutory requirements as an integral part of the process of reviewing grant applications. To the extent that this rule or preamble conflicts with the language of previous rules and preambles, the language herein shall be controlling. EPA will also, as far as possible, discontinue use of the term ``treatment as a state;'' however, since this phrase is included in several statutes, its continued use may sometimes be necessary. A. Simplified Determination as to Recognition and Government As a general rule, the recognition and governmental requirements are essentially the same under the Clean Water and Safe Drinking Water Acts. The new process will reflect this by establishing identical requirements for making this showing under each statute. Moreover, the fact that a tribe has met the recognition or governmental functions requirement under either of the Water Acts will establish that it meets those requirements under both statutes. To facilitate review of tribal applications, EPA therefore requests that tribal applications inform EPA whether a tribe has been approved for ``TAS'' (under the old process) or deemed eligible to receive funding or authorization (under the revised process) for any other program. A tribe that has not done so may establish that it has been federally recognized by simply stating in its grant or program authorization application that it appears on the list of federally recognized tribes that the Secretary of the Interior publishes periodically in the Federal Register. If the tribe notifies EPA that it has been recognized but does not appear on this list because the list has not been updated, EPA will seek to verify the fact of recognition with the Department of the Interior. A tribe that has not yet made its initial governmental showing can do so by certifying that it has a government carrying out substantial governmental functions. A tribe will be able to make the required certification if it is currently performing governmental functions to promote the public health, safety, and welfare of its population. Examples of such functions include, but are not limited to, levying taxes, acquiring land by exercise of the power of eminent domain, and exercising police power. Such examples should be included in a narrative statement supporting the certification, (1) Describing the form of tribal government and the types of essential governmental functions currently performed, and (2) identifying the legal authorities for performing those functions (e.g., tribal constitutions or codes). It should be relatively easy for tribes to meet this requirement without submitting copies of specific documents unless requested to do so by the Agency. B. Case by Case Review of Jurisdiction and Capability A tribe may have jurisdiction over, and capability to carry out, certain activities (e.g., protection of the quality of a particular lake for the Clean Lakes program under the Clean Water Act), but not others (e.g., waste management on a portion of the reservation far removed from any lakes). For this reason, EPA believes that the Agency must make a specific determination that a tribe has adequate jurisdictional authority and administrative and programmatic capability before it approves each tribal program. This will ensure that tribes meet the statutory requirements Congress has established as prerequisites to tribal eligibility for each particular program. 1. Simplified Jurisdictional Analysis The portion of the jurisdictional determination under which governments comment on tribal jurisdiction will be substantially altered under this Rule. These changes are outlined below. Comments will no longer be sought from ``appropriate governmental entities'' with regard to tribal grant applications. The Agency now has extensive experience awarding grants to tribes and is capable of evaluating tribal grant applications to ensure that a tribe has adequate jurisdiction to receive grants. A separate ``TAS'' jurisdictional review is not needed to verify that a tribe meets the statutory jurisdictional requirement. This change will have the effect only of eliminating duplicative requirements. Finally, the Agency notes that certain issues concerning tribal jurisdiction may be relevant to a tribe's authority to conduct activities. For example, if a tribe and a state or another tribe disagree as to the boundary of a particular tribe's reservation, each time the tribe seeks to assert authority over the disputed area, the dispute will recur. The Agency recognizes that its determinations regarding tribal jurisdiction apply only to activities to be carried out within the scope of the grant. However, it also believes that, once it makes a jurisdictional determination in response to a tribal application regarding any EPA program, it will ordinarily make the same determination for other programs unless a subsequent application raises different legal issues. Thus, for example, once the Agency has arrived at a position concerning a boundary dispute, it will not alter that position in the absence of significant new factual or legal information. Under the new approval process, as under the old, the Agency will continue to retain authority to limit its approval of a tribal application to those land areas where the tribe has demonstrated jurisdiction. This would allow EPA to approve the portion of a tribal application covering certain areas, while withholding approval of the portion of an application addressing those land areas where tribal authority has not been satisfactorily established. See, e.g., 53 FR 37395, 37402 (September 26, 1988) (SDWA); 54 FR 14353, 14355 (April 11, 1989) (Clean Water Act Grants); 54 FR 39097, 39102 (September 12, 1989) (Clean Water Act Water Quality Standards); 58 FR 8171, 8176 (February 11, 1993) (Clean Water Act section 404); 58 FR 67966, 67972 (Clean Water Act NPDES) (December 22, 1993). 2. Capability EPA must continue to make a separate determination of tribal capability for each program for which it approves a tribe. However, the Safe Drinking Water Act, Water Quality Standards, and section 404 regulations would be amended to conform to the CWA grant regulations, which do not specifically prescribe the material a tribe must submit to establish capability. Ordinarily, the inquiry EPA will make into the capability of any applicant, tribal or state, for a grant or program approval would be sufficient to enable the Agency to determine whether a tribe meets the statutory capability requirement. See, e.g., 40 CFR part 31 (grant regulations applicable to states and tribes); 40 CFR 142.3 (Public Water System primary enforcement responsibility requirements at parts 141, 142 apply to tribes); 145.1(h) (Underground Injection Control requirements of parts 124, 144, 145, and 146 that apply to states generally apply to tribes). Nevertheless, EPA may request that the tribe provide a narrative statement or other documents showing that the tribe is capable of administering the program for which it is seeking approval. In evaluating tribal capability, EPA will consider: (1) The tribe's previous management experience; (2) existing environmental or public health programs administered by the tribe; (3) the mechanisms in place for carrying out the executive, legislative and judicial functions of the tribal government; (4) the relationship between regulated entities and the administrative agency of the tribal government which will be the regulator; and (5) the technical and administrative capabilities of the staff to administer and manage the program. EPA recognizes that certain tribes may not have substantial experience administering environmental programs; a lack of such experience will not preclude a tribe from demonstrating capability, so long as it shows that it has the necessary management and technical and related skills or submits a plan describing how it will acquire those skills. IV. Summary of Revised Process Under the new process, tribes will continue to seek grants under the authority of statutes authorizing EPA to treat eligible tribes in a manner similar to that in which it treats states. For instance, tribes seeking approval of an NPDES or Wetlands permits program will comply with the applicable provisions of 40 CFR parts 123 or 233. However, tribes will now generally be required to submit only a single application to demonstrate eligibility for the grant, without the need for a separate application for ``TAS.'' EPA will verify that the tribe meets all statutory prerequisites for eligibility in the process of reviewing the single tribal application. EPA believes that the changes outlined in this notice will simplify and streamline the process of assessing tribal eligibility while still ensuring full compliance with all applicable statutes. The Agency expects that the new process will reduce the burdens and barriers to tribes of participating in environmental management. V. Executive Order 12866 OMB has reviewed this action under the terms of Executive Order 12886. VI. Regulatory Flexibility Act EPA did not develop a Regulatory Flexibility Analysis for the amendments in this rule. This is because they are exempt from notice and comment rulemaking under section 553(a)(2) of the Administrative Procedure Act (5 U.S.C. 553(a)(2)) and therefore are not subject to the analytical requirements of sections 603 and 604 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 603 and 604). VII. Paperwork Reduction Act The proposed regulations contain no new or additional information collection activities and, therefore, no information collection request will be submitted to the Office of Management and Budget for review in compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. List of Subjects 40 CFR Part 35 Environmental protection, Air pollution control, Coastal zone, Grant programs-environmental protection, Grant programs-Indians, Hazardous waste, Indians, Intergovernmental relations, Pesticides and pests, Reporting and recordkeeping requirements, Superfund, Waste treatment and disposal, Water pollution control, Water supply. 40 CFR Part 130 Environmental protection, Grant programs-environmental protection, Indians-lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water pollution control, Water supply. Dated: March 10, 1994. Carol M. Browner, Administrator. For the reasons set forth in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows: PART 35--STATE AND LOCAL ASSISTANCE Subpart A--Financial Assistance for Continuing Environmental Programs 1. The authority citation for subpart A of part 35 continues to read as follows: Authority: Secs. 105 and 301(a) of the Clean Air Act, as amended (42 U.S.C. 7405 and 7601(a); Secs. 106, 205(g), 205(j), 208, 319, 501(a), and 518 of the Clean Water Act, as amended (33 U.S.C. 1256, 1285(g), 1285(j), 1288, 1361(a) and 1377); secs. 1443, 1450, and 1451 of the Safe Drinking Water Act (42 U.S.C. 300j-2, 300j-9 and 300j-11); secs. 2002(a) and 3011 of the Solid Waste Disposal Act, as amended by the Resource Conservation, and Recovery Act of 1976 (42 U.S.C. 6912(a), 6931, 6947, and 6949); and secs. 4, 23, and 25(a) of the Federal Insecticide, Fungicide and Rodenticide Act, as amended (7 U.S.C. 136(b), 136(u) and 136w(a). 2. Section 35.105 is amended by adding a definition of Eligible Indian Tribe in alphabetical order and by revising the definition of ``State'' to read as follows: Sec. 35.105 Definitions. * * * * Eligible Indian Tribe means for purposes of the Clean Water Act, any federally recognized Indian Tribe that meets the requirements set forth at 40 CFR 130.6(d). * * * * * State means within the context of Public Water Systems Supervision and Underground Water Source Protection grants or of financial assistance programs under the Clean Water Act, one of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Trust Territories of the Pacific Islands or an eligible Indian Tribe. * * * * * Sec. 35.115 [Amended] 3. Section 35.115 is amended by revising the phrase ``Indian Tribes treated as States'' in paragraphs (b), (d), and (f) to read ``eligible Indian Tribes'' and paragraph (g) is amended by revising the phrase ``Indian Tribe treated as a State'' to read ``eligible Indian Tribe''. Sec. 35.155 [Amended] 4. In Sec. 35.155 paragraph (c) is amended by revising the phrase ``Indian Tribes treated as States'' to read ``eligible Indian Tribes''. Sec. 35.250 [Amended] 5. Section 35.250 is amended by revising the phrase ``Indian Tribes treated as States'' to read ``eligible Indian Tribes.'' Sec. 35.255 [Amended] 6. Section 35.255(b) is amended by revising the phrase ``Indian Tribes treated as States'' to read ``eligible Indian Tribes''. Sec. 35.260 [Amended] 7. In Sec. 35.260 paragraph (a) is amended by revising the phrase ``Indian Tribes treated as States'' to read ``eligible Indian Tribes'' and paragraph (b) is amended by revising the phrase ``Indian Tribe treated as a State'' to read ``eligible Indian Tribe''. Secs. 35.265, 35.365 and 35.755 [Amended] 8. Sections 35.265(a), 35.365(a)(1), 35.755(a), and 35.755(b)(1) are amended by revising the phrase ``requirements for treatment as a State in accordance with 40 CFR 130.6(d) and 130.15'' to read ``requirements set forth at 40 CFR 130.6(d)''. Secs. 35.350 and 35.750 [Amended] 9. Sections 35.350 introductory text and 35.750 are amended by revising the phrase ``Indian Tribes treated as States'' to read ``eligible Indian Tribes''. Sec. 35.400 [Amended] 10. Section 35.400 is amended by revising the phrase ``Indian Tribes treated as States for'' to read ``eligible Indian Tribes under''. Sec. 35.1605-9 [Amended] 11. Section 35.1605-9 is amended by revising the phrase ``treated as a State'' in the heading to read ``set forth at 40 CFR 130.6(d)'' and by revising the phrase ``set forth for treatment as a State in accordance with 40 CFR 130.6(d) and 130.15'' to read ``set forth at 40 CFR 130.6(d)''. Sec. 35.1620-1 [Amended] 12. Section 35.1620-1 (c) is amended by revising the phrase ``treated as States'' in the paragraph heading to read ``eligible Indian Tribe'' and by revising the phrase ``Indian tribe treated as a State'' to read ``eligible Indian Tribe''. Sec. 35.415 [Amended] 13. Section 35.415(a)(1) is amended by removing the words ``-- Treatment of Indian Tribes as States''. Sec. 35.450 [Amended] 14. Section 35.450 is amended by revising the phrase ``Indian Tribes treated as States for'' to read ``eligible Indian Tribes under''. Sec. 35.465 [Amended] 15. Section 35.465(a)(1) is amended by removing the words ``-- Treatment of Indian Tribes as States''. PART 130--WATER QUALITY PLANNING AND MANAGEMENT 1. The authority citation for part 130 continues to read as follows: Authority: 33 U.S.C. 1251 et. seq. Sec. 130.1 [Amended] 1. Section 130.1(a) is amended by revising the phrase ``Indian Tribe treated as a State'' to read ``eligible Indian Tribe''. Sec. 130.6 [Amended] 2. Section 130.6(d) introductory text is amended by revising the phrase ``may be treated as a State'' to read ``is eligible''. Sec. 130.15 [Amended] 3. Section 130.15 is amended by revising the phrase ``for treatment as a State'' in the heading to read ``for Indian tribes''; by removing the phrase ``for treatment as a State'' from paragraph (a); by removing paragraphs (b), (c), and (d); and by removing the paragraph designation ``(a)'' from the remaining text. [FR Doc. 94-6382 Filed 3-22-94; 8:45 am] BILLING CODE 6560-50-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-6382. Public record. Not legal advice.