MEMORANDUM OF AGREEMENT (MOA) BETWEEN (2025)

MEMORANDUM OF AGREEMENT (MOA) BETWEEN

THE SOUTHERN UTE INDIAN TRIBE

AND

THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 8

Background

The EPA issues Clean Water Act (CWA) section 402 National Pollutant Elimination System

(NPDES) permits for discharges of pollutants into waters of the United States located within the

exterior boundaries of the Southern Ute Reservation and other Indian country lands associated

with the Southern Ute Indian Tribe, such as off-reservation Tribal trust lands. 1 Consistent with

CWA section 401 and its implementing regulations at 40 CFR Part 121, the EPA cannot issue

such NPDES permits unless a Section 401 water quality certification is issued or certification is

waived. The Southern Ute Indian Tribe has been approved by the EPA as the CWA section 401

certifying authority for all discharges on Tribal trust lands within Southern Ute Reservation in

Colorado (but not for non-Tribal trust lands within the reservation), and on one off-reservation

Tribal trust parcel bordering and near the southeast corner of the reservation, pursuant to the

CWA section 518(e) treatment in the same manner as state (TAS) process.

Ordinarily, in accordance with CWA section 401 and 40 CFR Part 121, applicants for federal

permits or licenses seek water quality certifications from states or authorized Tribes2. However,

pursuant to the EPA’s NPDES permitting regulations, the EPA Regional Administrator may

forward NPDES individual permit applications to the certifying agency of the State or authorized

Tribe with a request to act on the request for certification consistent with 40 CFR Part 121. 40

CFR § 124.53(b). If the State or authorized Tribe certification has not been requested by the

time the draft permit is prepared, the Regional Administrator shall send the certifying State or

authorized Tribe certifying agency a request for certification consistent with 40 CFR Part 121 and

include a copy of the draft permit. 40 CFR § 124.53(c).

State or authorized Tribe certification shall be granted or denied within the reasonable period of

time as required by CWA section 401(a)(1). 40 CFR § 124.53(d). The State or authorized Tribe

shall send a notice of its action, including a copy of any certification, to the applicant and the

EPA Regional Administrator. Id. State or authorized Tribe certification on a draft permit may

include a statement of the extent to which each condition of the draft permit can be made less

stringent without violating the requirements of State or authorized Tribal law, including water

quality standards. 40 CFR § 124.53(e). Pursuant to 40 CFR § 121.3, the certifying authority's

Indian country is defined in 18 U.S.C. Section 1151. Indian country generally includes (1) lands within the exterior

boundaries of Indian reservations; (2) any land held in trust by the United States for an Indian tribe; and (3) any

other areas that are “Indian country” within the meaning of 18 U.S.C. Section 1151.

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CWA Section 518(e) explicitly authorizes the EPA to treat eligible Indian Tribes in the same manner as states for

purposes of CWA Section 401.

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evaluation is limited to the water quality-related impacts from the activity subject to the federal

license or permit, including the activity's construction and operation.

Purpose of the MOA

The Southern Ute Indian Tribe (hereinafter referred to as the Tribe) and the U.S. EPA Region 8

(hereinafter referred to as the EPA) (collectively, the Parties) enter into this Memorandum of

Agreement (MOA) to establish procedures by which the EPA and the Tribe intend to request and

make water quality certification decisions pursuant to Clean Water Act (CWA) section 401, 40

CFR Part 121, and 40 CFR § 124.53 for NPDES permits drafted by the EPA. This MOA addresses

the certification of EPA-issued NPDES permits only and is not applicable to any other federal

permits and licenses that may require certification pursuant to CWA section 401.

Accordingly, this MOA sets forth roles, responsibilities and communication procedures for the

EPA to work with the Tribe, as water quality certifying authority, to address requirements under

CWA section 401, and 40 CFR Part 121 and 40 CFR § 124.53.

Authority to Enter MOA

CWA sections 104(a) and (b) grant the EPA authority to encourage, cooperate with and render

technical services to individuals, including the general public, as well as public and private sector

entities to promote the coordination and acceleration of demonstrations, studies and training

relating to the causes, effects, prevention and elimination of water pollution. 33 U.S.C. 1254(a)

and (b). The EPA is using this authority to promote the coordination of efforts among all parties

to satisfy collective responsibilities under CWA section 401, in the form of this MOA.

Furthermore, federal agencies and certifying authorities are encouraged to enter into MOAs to

establish notification protocols and standardize the reasonable period of time for certification

decisions about permits and licenses. 88 Fed. Reg. at 66586 and 66624.

Roles and Responsibilities Pursuant to MOA

The Tribe and the EPA agree to the following items regarding water quality certification for draft

NPDES permits when the EPA is requesting certification consistent with 40 CFR § 124.53.

A) Pre-filing Meeting Requests (see 40 CFR § 121.4) – The EPA intends to request a pre-filing

meeting with the Tribe at least 30 days prior to submitting a request for certification in

accordance with the Tribe’s applicable submission procedures. In order for a pre-filing meeting

to occur, the Tribe must respond to the pre-filing meeting request prior to their receipt of the

EPA’s written certification request. Consistent with 40 CFR § 121.4, the Tribe agrees to maintain

the requirement for a pre-filing meeting request.

B) Request for Certification (see 40 CFR § 121.5) – When requesting certification in accordance

with 40 CFR § 124.53(b) or (c), the EPA will make the request in writing and include the

following information as required by 40 CFR § 121.5:

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•

•

•

Permit application;

Any readily available water quality-related materials that informed the development of

the application.

Public notice versions of the draft permit and statement of basis for the discharge.

C) Reasonable Period of Time (see 40 CFR § 121.6) – Upon receipt of the EPA’s request for

certification, the Tribe will notify the EPA of its receipt via email or any future agreed upon

means. The EPA and Tribe agree that a reasonable period of time for the Tribe to transmit a

certification decision for EPA-drafted NPDES permits is sixty (60) days. If the Tribe needs more

time to finalize a certification decision about a particular draft NPDES permit, the Tribe may:

1. Submit a written notification to the EPA for the additional amount of time needed in

accordance with 40 CFR § 121.6(d) if a longer period of time is necessary to

accommodate public notice procedures or force majeure events (including, but not

limited to, government closure or natural disasters), in which case the reasonable

period of time is automatically extended to time necessitated by the procedure or

event, or

2. For other reasons, submit a request for more time to the EPA indicating the reason for

request and the amount of time requested, in which case the EPA may agree to the

extension in writing in accordance with 40 CFR §§ 121.6(e).

Any notification or request must be received before the reasonable period of time expires. In no

circumstances may the reasonable period of time for a certification decision be extended to

more than one year from the Tribe’s receipt of the request from the EPA. CWA Section 401(a)(1)

and 40 CFR § 121.6(b).

D) Certification Decisions (see 40 CFR § 121.7) – The four ways that the Tribe may act on a

request for certification are as follows:

1. Grant certification. A grant of certification means that the Tribe has determined that the

permitted activity will comply with water quality requirements. 88 Fed. Reg. 66558,

66607 (Sept. 27, 2023). A grant of certification must be in writing and should include the

information identified in 40 CFR § 121.7(c). Additionally, if the Tribe determines that no

water quality requirements are applicable to the activity, the Act requires it to grant

certification. 40 CFR § 121.7(g). Granting certification means that the EPA may issue the

NPDES permit. CWA section 401(a)(1); 88 Fed. Reg. at 66607.

2. Grant certification with conditions. A grant of certification with conditions means that

the Tribe has determined that the permitted activity will comply with applicable water

quality requirements, but only if certain conditions are met. 88 Fed. Reg. at 66607. A

grant of certification with conditions must be in writing and should include the

information identified in 40 CFR § 121.7(d). Pursuant to CWA Section 401(d), if a grant

of certification includes conditions, the EPA must include those conditions in the NPDES

permit. 88 Fed. Reg. at 66607.

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3. Deny certification. A denial of certification means that the Tribe is not able to certify

that the permitted activity will comply with applicable water quality requirements. 88

Fed. Reg. at 66607. The denial of certification must be in writing and should include the

information identified in 40 CFR § 121.7(e). If a certifying authority denies certification,

the EPA cannot issue the NPDES permit. CWA section 401(a)(1).

4. Expressly waive certification. CWA section 401 explicitly provides for a constructive

waiver of certification if the certifying authority fails or refuses to act on a request for

certification within the reasonable period of time. 88 Fed. Reg. at 66608. 40 CFR §

121.7(f) provides for an express waiver of certification. An express waiver does not

mean that the Tribe has determined that the permitted activity will comply with

applicable water quality requirements. 88 Fed. Reg. at 66608. Instead, an express waiver

indicates only that the certifying authority has chosen not to act on a request for

certification. Id. An express waiver must be in writing and should include the

information identified in 40 CFR § 121.7(f). Consistent with the CWA, an express waiver

enables the EPA to proceed to issue the NPDES permit without a certification. CWA

section 401(a)(1); 88 Fed. Reg. at 66608.

E) How to Proceed in Absence of a Certification Decision (“constructive waiver,” see 40 CFR §

121.9) – If the Tribe does not act on a request for certification within the reasonable period of

time defined in section C above, the EPA intends to promptly notify the Tribe and the NPDES

permit applicant in writing that the certification requirement has been constructively waived in

accordance with 40 CFR § 121.9. This notification satisfies the requirement to obtain

certification. 40 CFR § 121.9.

F) Modification to a Grant of Certification (see 40 CFR § 121.10) – If the EPA and Tribe agree in

writing that the Tribe may modify a grant of certification (with or without conditions), the Tribe

may modify only the agreed-upon portions of the certification. The Tribe is not required to

obtain the EPA’s agreement on the language of the modification. The Tribe cannot, through a

modification, revoke a grant of certification (with or without conditions) or change a grant of

certification (with or without conditions) into a denial or waiver of certification. 40 CFR §

121.10.

G) Other Provisions

1. Authorities not altered: Nothing in this MOA alters, limits, or supersedes the authorities

and responsibilities of any Party on any matter within its respective jurisdiction. Nothing

in this MOA shall require any of the Parties to perform beyond its respective authority.

2. Financial obligations: Nothing in this MOA shall require any of the Parties to assume any

obligation or expend any sum in excess of authorization and appropriations available.

3. Immunity and Defenses Retained: Each Party retains all immunities and defenses

provided by law with respect to any action based on or occurring as a result of this MOA.

This MOA does not create any right or benefit, substantive or procedural, enforceable by

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law or equity, by persons who are not party to this agreement, against the Southern Ute

Indian Tribe or the EPA, their officers or employees, or any other person. This MOA does

not apply to any person outside of the Southern Ute Indian Tribe and the EPA.

4. Management of information: The parties to this MOA understand that certain records

and information developed as a result of this MOA may be subject to the requirements

of the Freedom of Information Act (FOIA) and other federal statutes.

5. Each of the signatories warrants that he or she is authorized to enter this MOA on behalf

of the Party on whose behalf the signatory has executed the MOA.

6. This MOA may be executed in counterpart originals and each copy will have the same

force and effect as signed by all Parties.

Administration of the MOA

1. Approval. This MOA becomes effective upon signature by the authorized officials

designated below.

2. Amendment. Either the EPA or the Tribe may modify this MOA at any time through

written agreement with the other party.

3. Termination. Any Party may end its participation in this MOA by providing written notice

to the other Party sixty days prior to termination. CWA Section 401, 40 CFR Part 121 and

40 CFR § 124.53 requirements remain applicable to all parties in the event of

termination of this MOA.

4. Signatures. The parties hereto have executed this MOA on the dates shown below.

The parties execute this MOA by virtue of their signatures below.

Digitally signed by Mark A.

Mark A.

Hutson

Date: 2025.06.27 14:28:55

Hutson

-06'00'

________________________________

Mark Hutson, Environmental Programs

Department Director

Southern Ute Indan Tribe

Digitally signed by SARAH

SARAH

BAHRMAN

2025.06.30 16:19:03

BAHRMAN Date:

-06'00'

________________________________

Sarah Bahrman, Acting Director

Water Division, U.S. EPA Region 8

____________

Date

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Date

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