2515ss01

Information Collection Request

for

Revised Interpretation of Clean Water Act Tribal Provision (Proposed Rule)

March 2015

EPA ICR Number 2515.01

OMB Control Number 2040-NEW

U.S. Environmental Protection Agency

Office of Water/Office of Science and Technology

1200 Pennsylvania Avenue, NW

Washington, D.C. 20460

CONTENTS

Page

1. IDENTIFICATION OF THE INFORMATION COLLECTION 3

1.1 Title of the Information Collection 3

1.2 Short Characterization/Abstract 3

2. NEED FOR AND USE OF THE COLLECTION 4

2.1 Need and Authority for the Collection 4

2.2 Practical Utility/Users of the Data 4

3. NON-DUPLICATION, CONSULTATIONS, AND OTHER

COLLECTION CRITERIA 5

3.1 Non-duplication 5

3.2 Public Notice Required Prior to ICR Submission to OMB 5

3.3 Consultations 5

3.4 Effects of Less Frequent Collection 6

3.5 General Guidelines 6

3.6 Confidentiality and Sensitive Questions 6

4. THE RESPONDENTS AND THE INFORMATION REQUESTED 6

4.1 Respondents/NAICS Codes 6

4.2 Information Requested 6

4.3 Respondent Activities 7

5. THE INFORMATION COLLECTED–AGENCY ACTIVITIES, COLLECTION METHODOLOGY, AND INFORMATION MANAGEMENT 8

5.1 Agency Activities 8

5.2 Collection Methodology and Management 8

5.3 Small Entity Flexibility 8

5.4 Collection Schedule 8

6. ESTIMATING THE BURDEN AND COST OF THE COLLECTION 9

6.1 Estimating Respondent Burden 9

6.2 Estimating Respondent Costs 9

6.3 Estimating Agency Burden and Cost 10

6.4 Reasons for Change in Burden 10

6.5 Burden Statement 10

Attachment: Derivation of Burden Estimates 12

1. IDENTIFICATION OF THE INFORMATION COLLECTION

1.1 Title of the Information Collection

The title of this Information Collection Request (ICR) is Revised Interpretation of Clean Water Act Tribal Provision (Proposed Rule).

1.2 Short Characterization/Abstract

The U.S. Environmental Protection Agency (EPA, or the Agency) developed this ICR to evaluate how the proposed rule, Revised Interpretation of Clean Water Act Tribal Provision, would affect the paperwork burden on tribal applicants.

The proposal would streamline how tribes apply for treatment in a similar manner as a state (TAS) for the water quality standards (WQS) program and other Clean Water Act (CWA) regulatory programs. EPA proposes to conclude definitively that section 518 includes an express delegation of authority by Congress to eligible Indian tribes to administer regulatory programs over their entire reservations. This reinterpretation would eliminate the need for applicant tribes to demonstrate inherent authority to regulate under the CWA, thus allowing tribes to implement the congressional delegation of authority unhindered by requirements not specified in the statute. The proposal would reduce the burden on applicant tribes and advance cooperative federalism by facilitating tribal involvement in the protection of reservation water quality as intended by Congress.

Based on input from eight tribes with relevant TAS experience, EPA estimated the burden and costs for tribes to develop TAS applications. The results discussed in this ICR show that the proposed rule would reduce the burden by an estimated 583 staff hours for a typical tribe, or 27 percent, and reduce the cost for salaries and contractor support by an estimated $70,554 per tribe, or 39 percent.

EPA’s ICR analysis included all administrative costs associated with a TAS application even if some of the costs are not strictly information collection costs. EPA was unable to differentiate the information collection costs consistently and reliably from other administrative costs such as program development costs.

The total estimated burden could overstate actual burden because (a) EPA assumed that all applications are first-time applications for CWA regulatory programs, and thus the tribes submitting them would be unable to rely on materials from previous applications for different regulatory programs; (b) EPA used a liberal estimate of the number of tribal applications to ensure that the ICR does not underestimate tribal burden; and (c) EPA used a simplifying steady-state assumption in estimating annualized costs.

Because EPA has assumed that all tribal administrative costs and burden associated with the rule are information collection burden, EPA has not conducted a separate Economic Analysis.

2. NEED FOR AND USE OF THE COLLECTION

2.1 Need and Authority for the Collection

In 1987, through the Water Quality Act (P. L. 100‑4), Congress made substantial additions to the CWA. The Water Quality Act added section 518(e) which requires EPA to promulgate regulations specifying how Indian tribes would qualify to administer certain specified CWA programs. EPA published such regulations for CWA regulatory programs from 1991 through 1994 in 40 CFR sections 131.4(c), 131.8, 123.31-34, 223.60-62, and related sections.

The CWA does not require tribes to administer these programs. However, tribes seeking to be authorized must apply for and be found eligible for TAS through the procedures described in the regulations. The information a tribe submits represents a collection of information that is necessary for EPA to fulfill the Agency’s responsibilities under CWA section 518(e) in a reasonable and timely manner.

The statute and regulations specify four criteria for an Indian tribe to qualify to administer a CWA regulatory program: (a) the tribe must be federally recognized, (b) the tribe must have a governing body carrying out substantial governmental duties and powers, (c) the program must pertain to water resources within the borders of an Indian reservation, and (d) the tribe must be reasonably expected to be capable of carrying out the functions to be exercised consistent with the terms and purposes of the CWA and all applicable regulations.

The regulations cited above specify the information a tribe must submit in order for EPA to review and approve the tribe for TAS. The required information is summarized in section 4.2.

2.2 Practical Utility/Users of the Data

EPA uses the information supplied by an interested tribe to determine whether it qualifies to administer the CWA program which it seeks. EPA must assess the tribe’s information to determine whether the tribe meets the requirements specified in section 518(e) of the CWA and EPA’s implementing regulations listed in section 2.1 above.

If these information collection activities were not carried out, interested and otherwise qualified tribes would be unable to administer CWA regulatory programs, such as WQS, water quality certifications, and the National Pollutant Discharge Elimination System permit program. This would not be consistent with the CWA or federal Indian policy.

3. NON-DUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA

3.1 Non-Duplication

Under EPA’s regulations, a tribe must be approved for TAS for each program it wishes to administer. To avoid requiring tribes to submit duplicate information, EPA’s regulations specify that a tribe need only provide the required information which has not been submitted in a previous application. For example, in evaluating whether a tribe qualifies to administer WQS, EPA does not require a tribe to resubmit information from its previously-approved TAS application under section 106.

3.2 Public Notice Required Prior to Icr Submission to Omb

In compliance with the 1995 Paperwork Reduction Act, EPA is soliciting comments on this draft ICR for a 30‑day period beginning concurrently with the 60-day comment period on the proposed rule, Revised Interpretation of Clean Water Act Tribal Provision. Before finalizing the rule, EPA will submit the revised ICR to the Office of Management and Budget (OMB).

3.3 Consultations

In developing the proposed rule, EPA made a substantial effort to involve key stakeholders. In multiple meetings, EPA consulted and coordinated with tribes, states, and organizations representing tribes and states.

To help develop the burden estimate for this ICR, EPA identified eight tribes with experience in applying for TAS for WQS that were willing to provide quantitative information about the resources they expended in the application process. The tribes and the year in which their TAS approval occurred are:

• Hoopa Valley Tribe (CA) (1996)

• Hualapai Indian Tribe (AZ) (2004)

• Ute Mountain Ute (CO) (2005)

• Navajo Nation (AZ, NM, UT) (2006)

• Northern Cheyenne (MT) (2006)

• Lac du Flambeau Band of Chippewa (WI) (2008)

• Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation (WI) (2009)

• Blackfeet Tribe (MT) (2012)

The tribes provided the resource information in interviews conducted by EPA staff members in the respective regional offices.

3.4 Effects of Less Frequent Collection

Application by Indian tribes to obtain TAS to administer a CWA regulatory program is a one‑time collection of information per respondent, initiated voluntarily by interested tribes.

3.5 General Guidelines

EPA reviewed this ICR for compliance with OMB’s information collection guidelines in 5 CFR 1320.5(d)(2)(iv) and concluded it is in compliance.

3.6 Confidentiality And Sensitive Questions

Tribal program applications under this ICR will contain no confidential or sensitive information.

4. THE RESPONDENTS AND THE INFORMATION REQUESTED

4.1 Respondents/Naics Codes

The following describes the universe of potential respondents. The number of annual respondents is estimated in section 6.

Any federally recognized tribe with a reservation can apply to administer a regulatory program under the CWA. There are over 300 tribes with reservations. From 1991 through 2014, 63 tribes have submitted such an application, all of which are for the WQS program. Of these, EPA has approved TAS for WQS for 49 tribes; the remaining applications are in various stages of development.

The respondents affected by this collection activity are in NAICS code 92411 “Administration of Air and Water Resources and Solid Waste Management Programs.”

4.2 Information Requested

EPA’s regulations listed in section 2.1 specify the information a tribe must provide in its application to administer a CWA regulatory program. Specifically, an interested tribe must submit:

(1) a statement that the tribe is recognized by the Secretary of the Interior;

(2) a descriptive statement demonstrating that the tribal governing body is currently carrying out substantial governmental duties and powers over a defined area;

(3) a descriptive statement of the Indian tribe’s authority to regulate water quality, including a map or legal description of the area over which the Indian tribe asserts

authority; a statement by the tribe's legal counsel (or equivalent official) which describes the basis for the tribe’s assertion of authority; a copy of documents that support the tribe's assertion of authority; and an identification of the surface waters for which the tribe proposes to administer the program;

(4) a narrative statement describing the capability of the Indian tribe to administer an effective program; and

(5) any additional documentation required by the Regional Administrator to support the application.

An interested tribe typically needs to apply only once for a program. Where a tribe has previously qualified for TAS under another program, the tribe need only provide the required information which has not been submitted in a previous application.

4.3 Respondent Activities

Respondent activities include:

• Reading the regulatory requirements and EPA guidance, obtaining any necessary background understanding, obtaining clarifications from EPA.

• Assembling information required for the application, including federal recognition documentation; descriptions of form and functions of tribal government; documentation of the tribe’s authority to carry out functions; maps and legal description of the tribal reservation; identification of surface waters to be regulated; description of the tribe’s previous management experience; descriptions of existing tribal environmental or public health programs; identification of tribal entities that exercise the tribe’s executive, legislative, and judicial functions; and a description of the tribal agency that will assume responsibility for the program.

• Developing any of the above materials that do not already exist, or revising existing materials for inclusion in the application.

• Generating any needed data, including conducting water quality monitoring, and conducting scientific analyses of the data, to assist as necessary with the application.

• Analyzing the assembled information, and analyzing any issues identified by the tribe or EPA.

• Developing a statement by the tribal legal counsel discussing the legal basis for the tribe’s assertion of authority.

• Developing a description of the technical and administrative capabilities of the staff to administer the program.

• Developing, if necessary, a plan that describes how the tribe will acquire needed expertise, and how the tribe will obtain the funds required to develop needed expertise.

• Assembling and writing the application and transmittal documents.

• Meeting with EPA as needed to discuss plans, progress and any issues in developing the application.

• Responding to comments from EPA or others.

• Transmitting the draft and final application to EPA.

• Establishing a permanent file of the TAS application that can be referenced when amending the application or applying for other EPA programs at a later date.

These activities are generally carried out by tribal staff members, with support in some instances from contractors and consultants hired by the tribe.

5. THE INFORMATION COLLECTED – AGENCY ACTIVITIES, COLLECTION METHODOLOGY, AND INFORMATION MANAGEMENT

5.1 Agency Activities

After a tribe submits an application to administer a CWA regulatory program, EPA reviews the application and uses the submitted information to determine whether the tribe meets the criteria under CWA section 518(e) and EPA’s regulations to administer the program. Under the regulations, EPA also provides an opportunity for appropriate governmental entities and the public to comment on the application. EPA considers any comments received when it makes a decision concerning the tribe’s TAS eligibility.

5.2 Collection Methodology and Management

An interested tribe submits its application in hardcopy and/or electronic form to the EPA regional office. EPA has delegated to Regions the responsibility to review and approve tribal TAS eligibility; however, EPA headquarters must concur on the first application for each program submitted to each Region. Regional office staff members work closely with the tribes in this process. EPA headquarters staff members provide support to the regional offices in the reviews.

5.3 Small Entity Flexibility

The reporting requirements discussed in this ICR do not place a burden on any small entities.

5.4 Collection Schedule

There are no scheduling requirements for Indian tribes to apply for authorization to administer CWA regulatory programs.

6. ESTIMATING THE BURDEN AND COST OF THE COLLECTION

6.1 Estimating Respondent Burden

In order to develop the burden estimates in this section, EPA assembled and evaluated information collected from eight tribes with experience in developing TAS applications for CWA regulatory programs, as described in section 3.3. EPA’s methodology and results are described in detail in Appendix A, Derivation of Burden Estimates.

Pre-rule tribal burden: EPA estimates that a typical tribe expends 2,190 staff hours and $90,000 on contractor costs to develop a TAS application. Based on the past ten years, there have been approximately 4 new tribal TAS applications for CWA regulatory programs per year. Thus the pre-rule baseline burden comprises (4 tribes) * (2,190 hours/application) = 8,760 staff hours, and (4 tribes) * ($90,000/application) = $360,000 in contractor costs.

Post-rule tribal burden: EPA estimates that a typical tribe would expend 1,607 staff hours and $43,920 on contract costs to develop a TAS application if the proposed rule were finalized. Further, EPA estimates that an average of 6 tribes would apply for TAS to administer CWA regulatory programs per year, a 50% increase that is expected to continue for the first few years. Thus the post-rule burden would comprise (6 tribes) * (1,607 hours/application) = 9,642 staff hours and (6 tribes) * ($43,920/application) = $263,520 in contractor costs. The pace of applications could increase as tribes become more familiar with the new post-rule process.

6.2 Estimating Respondent Costs

EPA estimated tribal employee costs using an average annual salary of $54,570, which is equivalent to the salary of a GS-9, Step 10 federal employee.¹ At 2,080 labor hours per year, the hourly rate is $26.24. Overhead cost for federal and state employees are expected to be 60 percent, or $15.74 per hour, yielding a total hourly rate of $41.98.

Pre-rule annual tribal costs: Cost per application = (2,190 hours/application) * ($41.98/hour) + $90,000 contractor costs = $181,936. Total annual cost = (4 tribes) * ($181,936/application) = $727,744.

Post-rule annual tribal costs: Cost per application = (1,607 hours/application) * ($41.98/hour) + $43,920 contractor costs = $111,382. Total annual cost = (6 tribes) * ($111,382/application) = $668,292.

6.3 Estimating Agency Burden and Cost

Annual burden and costs to the federal government are detailed below. EPA employee costs were estimated assuming a GS-12 Step 1 federal employee earning $60,877 per year. At 2,080 labor hours per year, the hourly rate is $29.27. Overhead costs for federal employees are expected to be 60 percent, or $17.56 per hour, yielding a total hourly rate of $46.83.

Pre-rule Agency burden: EPA estimates that reviewing a typical application requires approximately 348 staff hours from regional and headquarters offices. The pre-rule Agency burden is (348 hours/application) * ($46.83/hour) = $16,297 per application reviewed. Thus the total pre-rule Agency burden is (4 tribes) * (348 hours/application) = 1,392 staff hours or (4 tribes) * ($16,297/application) = $65,188.

Post-rule Agency burden: If the proposed rule were to be finalized, EPA estimates that the pre-application staff burden would reduce by 41% to 205 staff hours or (205 staff hours) * ($46.83/hour) = $9,600 per application reviewed. Thus the total post-rule Agency burden would be (6 tribes) * (205 hours/application) = 1,230 staff hours or (6 tribes) * ($9,600/application) = $57,600.

There are no Capital Expenses and no O&M costs associated with this ICR.

6.4 Reasons for Change in Burden

The programmatic changes associated with the proposed rule would result in a reduction in per-respondent burden and cost to tribes and EPA for developing and processing TAS applications. However, the total burden for TAS applications is expected to increase due to a larger number of tribes applying each year after the rule changes.

6.5 Burden Statement

The annual public reporting and recordkeeping burden for this collection of information is estimated to be 1,607 hours plus $43,920 in contract support per response for a typical applicant tribe.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

A federal agency cannot conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

To comment on the Agency’s need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OW-2014-0461, which is available for public viewing at the Water Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Water Docket is (202) 566-2426. An electronic version of the public docket is available online for viewing at http://www.regulations.gov. Use http://www.regulations.gov to submit or view public comments, access the index listing of the contents of the public docket, and to access those documents in the public docket that are available electronically. Once in the system, select ‘search,” then key in the docket ID number identified above. Also, you can send comments to the Office of Information and Regulatory Affairs at [email protected], Attention: Desk Officer for EPA. Please include the EPA Docket ID (EPA-HQ-OW-2014-0461) and OMB Control Number (2040-NEW) in any correspondence.

ATTACHMENT

Derivation of Burden Estimates

Methodology

In order to evaluate the burden under this proposed rule, EPA obtained quantitative resource information from the eight tribes listed in section 3.3 that have experience in applying for TAS for the WQS program. From interviews with tribal staff members, EPA obtained tribal estimates of the staff hours and contractor funds the tribes actually expended in preparing their TAS applications, and an estimate of the portion of this burden that would be eliminated under the proposed rule.

Utility and Limitations

The estimates based on tribal input reflect the best available information. EPA selected the tribes because of their knowledge of the TAS process and willingness to participate. The staff members interviewed were either direct participants or observers at the time the applications were developed. They were knowledgeable about how their tribes demonstrated inherent authority and were able to discern how the level of effort would have differed if such a demonstration had not been required.

The information obtained from the tribes has certain limitations. First, some of the information could lack precision and accuracy because it depends largely on personal recollections of events from 3 to 20 years ago, depending on the tribe.

Second, this analysis included all administrative costs associated with TAS applications even if some of the costs are not strictly information collection costs. EPA was unable to differentiate the information collection costs – that is, “reporting and recordkeeping” as these terms are defined and used under the Paperwork Reduction Act – consistently and reliably from other administrative costs, such as program development costs, program implementation costs, and management oversight. The estimates of burden in this document, therefore, likely overstate the actual ICR burden by an unknown amount, but provide a reasonable estimate of the total administrative costs. Because of the interview process used, EPA has confidence that the tribes’ estimates of the relative proportion of work that the proposed rule would eliminate are fairly accurate.

Finally, the sample of eight tribes is small relative to the number of tribes with approved TAS for the WQS program (49) from which they were drawn, or the number of tribes with reservations (over 300). As a result, there is inherent variability in the data.

Assumptions for estimates

This analysis assumes that all post-rule applications would be first-time applications for a CWA regulatory program, thus the tribes would be unable to rely on materials from previous applications for different regulatory programs. Therefore, to the extent that some tribes that have applied previously for one CWA regulatory program seek a subsequent approval for a different regulatory program, the post-rule estimates of burden in this document will likely overstate the actual burden.

ICR burdens are stated as annualized burdens. In the analysis below, EPA has used a steady-state assumption to simplify the calculations of annual burden. Specifically, the analysis assumes that the rates of new tribal applications for CWA regulatory programs are steady at the same number from one year to the next. This assumption enables EPA to assume that the entire burden for a tribe occurs within the first year when calculating annual burden rates, even though in reality all applications by the eight participating tribes have required multiple years. This is because in a steady-state situation, assuming all burden occurs within one year is mathematically equivalent to a two-year application process with one-half of the burden occurring in each year, or a three-year process with one-third burden each year. To the extent that the rate of applications rises from year to year (thereby deviating from steady state) and any tribal applications take more than one year, the post-rule estimates of burden in this document will likely overstate the actual burden.

Estimates of total pre-rule burden

Table 1 shows the estimates provided by the tribes for the work done to prepare TAS applications, including providing additional information EPA requested in the course of the application process. Based on this information, EPA estimates that the pre-rule burden for a typical tribe would be 2,190 burden hours and $90,000 of contractor support. EPA used a median rather than an average for these estimates to reflect the non-normal distribution of values.

Table 1: Per-tribe burden estimates, pre-rule

Tribe	Staff hours	Contractor support
A	1,295	$90,000
B	1,611	$102,000
C	1,640	$10,000
D	2,190	$8,100
E	3,605	$96,300
F	9,736	$90,000
G	12,298	$2,700
H	20,800	$270,000
Median*	2,190	$90,000

*Excluding Tribe H, considered an outlier because of unique processes used in developing its TAS application.

EPA data for the past 10 years show that between 1 and 5 tribes have been applying for TAS for a CWA regulatory program each year, with a 75^th percentile of 4.0. EPA chose to use the 75^th percentile value to ensure the ICR does not underestimate the total burden to tribes. Therefore, EPA’s estimate of the pre-rule rate of new applications submitted is 4 tribes per year, resulting in a total pre-rule burden estimate of (4 tribes) * (2,190 hours/application) = 8,760 total burden hours and (4 tribes) * ($90,000) = $360,000 contractor support costs.

Estimates of total post-rule burden

Table 2 shows the estimates provided by the tribes for the percentage of the work done to prepare TAS applications that would be eliminated by the proposed rule. Based on this information, EPA estimates that the effect of the proposed rule would be to reduce tribal staff hours to prepare TAS application by an average of 26.6%, and to reduce contractor support costs by an average of 51.2%.

Table 2: Percentage of burden eliminated by the proposed rule

Tribe	% of Staff hours	% of Contractor support
A	5.5%	33.3%
B	33.3%	29.4%
C	15.9%	32.5%
D	14.7%	37.1%
E	11.5%	44.1%
F	15.6%	33.3%
G	50.0%	100.0%
H	66.7%	100.0%
Average	26.6%	51.2%

Table 3 shows the estimated post-rule burden per tribe, developed by applying the average percentage reductions in Table 2 to the typical tribal pre-rule burden estimates in Table 1. From this information, EPA estimates the proposed rule would eliminate 583 staff burden hours, or 27 percent, and $46,080 contractor support costs, or 51 percent, for the typical tribe applying for TAS for a CWA regulatory program.

Table 3: Estimated post-rule burden per tribe

	Staff hours	Contractor support
(a) Pre-rule burden estimates (from Table 1)	2,190	$90,000
(b) Percentage eliminated by the proposed rule (from Table 2)	26.6%	51.2%
(c) Amount eliminated by the proposed rule, (a)*(b)	583	$46,080
(d) Post rule burden, (a) – (c)	1,607	$43,920

Also from Table 3, EPA estimates that the post-rule burden to develop TAS applications would be 1,607 staff hours and $43,920 contractor support costs for a typical tribe. Because the lower per-tribe burden could encourage more tribes to apply for TAS than in the past, EPA estimates that in the first three years the proposed rule could increase the rate of new applications from the pre-rule rate of 4 per year to a post-rule rate of approximately 6 per year. Based on these factors, EPA estimates that the total annual post-rule burden for the next few years would comprise (6 tribes) * (1,607 hours) = 9,642 staff hours and (6 tribes) * ($43,920/application) = $263,520 in contractor costs. After that time, EPA expects the pace of applications could increase as tribes become more familiar with the post-rule process.

1General Schedule rate, effective January 2014, assuming base pay rate with no locality adjustment.

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