Strategy for Reviewing TAS Applications

UNITED STATES ENVIRONMENTALPROTECTIONAGENCY
WASHINGTON, D.C. 20460

JAN 2 3 2008
DEPUTY ADMINISTRATOR

MEMORANDUM
SUBJECT:

Strategy for Reviewing Tribal Eligibility Applications to Administer EPA
Regulatory Programs

FROM:
Deputy

TO:

Assistant Administrators
Regional Administrators

The purpose of this memorandum is to establish the U.S. Environmental Protection
Agency's strategy for improving the review of tribal applications for treatment in the same
manner as a state (TAS) to administer EPA regulatory programs.' This Strategy takes effect
immediately.

Background
Several federal environmental laws authorize EPA to treat eligible federally recognized
Indian tribes (tribe or tribal) in the same manner as states for implementing and managing certain
environmental programs.
The Strategy outlined in this memorandum is designed to improve both the TAS review
process and ongoing communications with tribal TAS applicants. This Strategy is the product of
an Agency-wide workgroup. To ensure that this Strategy considered the interests of tribes, EPA
partnered with a tribal workgroup, organized by EPA's National Tribal Caucus, to obtain and
provide tribal input. EPA also consulted with tribes on a government-to-government basis in
developing this Strategy.
This Strategy was developed in response to the Government Accountability Office
(GAO) report titled "Indian Tribes: EPA Should Reduce the Review Time for Tribal Requests to
Manage Environmental Programs" (GAO-06-95).~The report found that "EPA followed its

I

This Strategy document sets out the TAS process EPA intends to follow. EPA retains the discretion to deviate
from this process when appropriate. This Strategy imposes no binding legal requirements.
"he GAO report is available at http://www.gao.gov/new.items/d0695.prlf.

Internet Address (URL)

http://www.epa.gov

RecycledlRecyclable .Printed with Vegetable Oil Based Inks on 100% Postconsumer, Process Chlorine Free Recycled Paper

processes in most respects for approving tribal requests for TAS status and program
authorization for the 20 cases we reviewed, but we found some lengthy delays in these
processes.” The report also noted that some tribes are frustrated by what they perceive as
difficulty in getting clear information about the status of pending TAS applications. GAO
recommended that “EPA should develop a written strategy, including estimated time frames, for
reviewing tribes’ TAS applications for program authority and updating the tribes on the review
status.”
Applicability
This Strategy guides EPA’s internal processes for reviewing TAS eligibility applications
to administer EPA regulatory programs. This Strategy does not address the processes used to
review program submissions or TAS applications for grants or cooperative agreements.
Purpose
The purpose of this Strategy is to improve the timeliness and efficiency of EPA’s review
process and provide regular, useful TAS information to applicant tribes. This Strategy will also
strengthen implementation of EPA’s long-standing policy regarding review of TAS applications
for regulatory programs: that EPA works directly with each tribe on a government-togovernment basis throughout the application and review process and that EPA implements a
process to ensure reliably defensible decisions without undue burdens or delays.
Strategic Actions
This Strategy is designed to facilitate the timely review of TAS applications to administer
EPA regulatory programs, consistent with the above purpose, and to improve ongoing
communications with tribal applicants. Under this Strategy, EPA takes strategic actions in five
specific areas:
1. Common expectations – EPA works with tribes to establish common expectations
concerning the TAS process.
2. Tools for tribal applicants – EPA supplies additional tools to assist applicants in
preparing TAS applications and to facilitate timely reviews.
3. Internal review procedures – EPA establishes improved internal review procedures
to facilitate more efficient TAS reviews and continues to promote consistent
application of established TAS review criteria.
4. Open communications – EPA works with each tribal applicant to facilitate regular
and effective communications regarding the TAS review process.
5. Reaching out, where appropriate, to other governments and the public – EPA
identifies potential approaches for EPA to reach out to other governmental entities
and to the public to improve understanding of TAS.
Each of these strategic actions is described in detail below.

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1. Establish common expectations concerning the TAS process.
EPA generally takes a case-by-case approach in reviewing TAS applications because each tribe’s
application may present unique circumstances concerning sources of pollution, geography, or
legal authorities. Some applications raise issues about borders of or the status of certain
categories of lands within reservations. This means that the amount of information needed for an
application and the length of time to review the application can vary from application to
application. An important component of a satisfactory TAS process is for both the tribal
applicant and EPA to have an early, common understanding of what is involved in developing
and reviewing a TAS application. Common understanding establishes realistic expectations of
what preparing a complete application entails, what EPA needs to do to complete its review, and
how long the process is likely to take.
Strategic Actions:
• Meet or hold conference calls with the tribal applicant at the beginning of the TAS
application process. Ideally, participants would include the lead attorney and lead
program/technical staff assigned to the TAS application from both the tribe and EPA. In
these calls or meetings, EPA clearly identifies, to the extent practicable, each TAS step
and stage and discusses with the tribe the expected time frames for completing those
steps.
• Maintain regular communication with the tribe using, where practicable, means preferred
by the tribe. This could include meetings, telephone calls to designated tribal officials, email, or first class mail. See Section 4 for further discussion.
• Meet or hold conference calls with the tribal applicant within 45 days of the close of the
comment period to discuss the next steps and establish a tentative schedule for
completing the review if applicable regulations provide notice to appropriate government
entities and the public. 3
• Maintain continuity of EPA staff working on a tribe’s application, where possible,
including assigning backup staff to ensure continuity.
2. Supply additional tools to tribal applicants to assist in preparing TAS applications and
in facilitating timely reviews.
This Strategy provides for EPA to supply basic tools to tribal applicants for use in preparing a
TAS application.
Strategic Actions:
• Develop, where needed, and distribute on EPA’s Web site, TAS information and related
tools. 4 Tools to develop and distribute include:
o The typical procedural steps in the TAS application and review process discussed
in Section 1 above. See Attachments A and F for specific procedural steps for

3

Or within 30 days after receiving a complete TAS application if notice to appropriate governmental entities and the
public is not required.
4
TAS information and related tools are available at http://www.epa.gov/tribalportal/laws/tas.htm.

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•
•

TAS applications under the Clean Water Act (CWA) water quality standards
(WQS) and certification programs and Clean Air Act (CAA) regulatory programs.
o Examples of documentation for addressing regulatory provisions governing TAS
applications, where possible. See Attachments B, G, and H for the CWA WQS
and certification programs, the CAA regulatory programs, and the Safe Drinking
Water Act (SDWA) public water system supervision (PWSS) program.
o A Frequently Asked Questions (FAQs) document with answers concerning the
overall TAS process for regulatory programs. See Attachment E for FAQs for the
CWA WQS and certification programs and Attachment I for FAQs for the SDWA
PWSS program.
o Information on other possible approaches tribes can use to participate in
environmental programs (regulatory or non-regulatory) apart from the TAS
process. These could include various collaborative approaches, such as CWA
Section 518(d) cooperative agreements; cooperative arrangements, such as the
Direct Implementation Tribal Cooperative Agreements; grants; approaches to
environmental and human health protection based on tribal law; or non-regulatory
activities such as those described in EPA’s Final Guidance on Awards of Grants
to Indian Tribes under Section 106 of the Clean Water Act issued in 2006. 5
o Additional tools, developed as appropriate, for other TAS regulatory programs.
Assist tribes interested in obtaining copies of completed TAS applications from other
tribes with similar situations.
Develop targeted TAS training for tribes and EPA staff. For example, EPA program
offices and regions could offer an annual short course specifically on the TAS process or
develop a TAS process training module that could be incorporated into other meetings
and workshops with tribes.

3. Establish improved internal procedures to facilitate more efficient TAS reviews and
continue to promote consistent application of established TAS review criteria.
EPA places a high priority on efficient and effective reviews of TAS applications and the timely
review and completion of EPA decision documents. This Strategy updates the procedures for
review of nationally-significant issues raised by TAS determinations for environmental
regulatory programs contained in the Cannon-Perciasepe Memorandum. 6 In light of experience,
we are updating that process to promote more timely and efficient decisions on TAS applications
by having an EPA regional-headquarters team review each application. The strategic actions
below are designed to carry out this priority.

5

The Final Guidance on Awards of Grants to Indian Tribes under Section 106 of the Clean Water Act is available at
http://www.epa.gov/owm/cwfinance/106tgg07.htm.
6
This memorandum, Adoption of the Recommendations from the EPA Workgroup on Tribal Eligibility
Determinations, was issued jointly by then-General Counsel Jonathan Cannon and then-Assistant Administrator for
the National Indian Program Robert Perciasepe (March 19, 1998) and also provides other guidance that EPA
continues to use in processing TAS applications.

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Strategic Actions:
• Continue with the joint EPA headquarters-regional “team approach” that EPA began
using in late 2005 to review TAS applications for regulatory programs. 7
o The team for each TAS review is composed of EPA experts in tribal, program,
and legal matters from both the EPA region and appropriate headquarters offices.
The EPA region will have the lead for communicating with the tribe and will
generally be the lead for the team. The team will collaborate on the substantive
review of each TAS application and develop and review key TAS documents, e.g.
the Proposed Findings of Fact (where appropriate), the Decision Document, and
the Response to Comments.
o The team determines the relative efforts needed between regional and
headquarters staff to ensure full consideration of relevant issues, including those
that are nationally significant, as they arise, and how the team can expedite the
TAS review process.
o While EPA regions remain responsible for issuing the TAS documents, the team
works closely in advance of final actions to ensure that all appropriate EPA
offices are afforded an opportunity to participate in a timely manner.
o The team approach has worked successfully in the past two years, resulting in an
increasing rate of decisions on TAS applications.
• To ensure EPA executive-level involvement where needed to expedite TAS reviews,
provide regular TAS reports to EPA’s Indian Program Policy Council (IPPC). In
particular, EPA managers provide an explanation to the IPPC when an application has
remained at the same stage of EPA review for more than one quarter (90 days). The
IPPC consists of each EPA Deputy Assistant Administrator, the EPA Principal Deputy
General Counsel, and each EPA Deputy Regional Administrator for regions with
federally recognized tribes.
• Tribal leaders may request that EPA managers check the status of their TAS application
at any time.
4. Establish open communications by working with each tribal applicant to facilitate
regular and effective communications regarding the TAS review process.
Under this Strategy, EPA seeks to place a priority on regular and open communications with the
tribal applicant during the TAS review process.
Strategic Actions:
• Keep the tribe informed about the status of its application regularly, but not less
frequently than quarterly. The tribe can request that this status report be written. EPA
keeps the tribe informed of the stage and timing of the review process, the nature of
issues being addressed, and whether there are any additional steps the tribe could take to
enhance the review.

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Since the inception of the “team approach,” there has been a significant increase in the rate of TAS decisions. For
example, in the two years since August 2005, EPA has approved TAS applications from ten tribes to administer the
Water Quality Standards program. This is the largest number of such TAS approvals in a comparable period since
1996.

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•
•

Maintain regular communication with the tribe using, where practicable, means preferred
by the tribe. This could include meetings, telephone calls to designated tribal officials, email, or first class mail. It is important to maintain two-way communication at all times.
Establish a process to treat certain TAS applications as “inactive.” This can occur when
the tribe has not taken agreed-upon actions for an extended time (a year or more) and
attempts to follow up have failed. In these cases, EPA informs the tribe that its
application has been identified as being in “inactive status” for tracking purposes and that
EPA will retain the current files as inactive until notified in writing of a change in status.
Tribes are able to submit new or supplemental applications at any time. An explanation
of the steps the tribe can take to reactivate the application will be provided at the time the
tribe is notified that its application has been identified as being in “inactive status.”

5. Reach out, where appropriate, to other governments and the public to improve
understanding of TAS.
A variety of governmental entities and members of the public often express an interest in a
tribe’s TAS application. EPA and tribal applicants have sometimes found it useful to reach out
to governmental entities and members of the public and provide additional opportunities for
input during the TAS process, beyond what is required under EPA regulations. The purpose of
this strategic action is to facilitate such additional outreach where it would be beneficial in order
to facilitate timely TAS approvals.
Strategic Actions:
• EPA may sponsor outreach activities associated with a TAS application and/or assist the
tribe in its own outreach activities. EPA should consult with the tribe as to whether
particular outreach activities would be beneficial and appropriate, and should tailor the
activities to the specific circumstances. Listed below are examples of outreach
approaches that EPA and tribes have used successfully in the past. They are provided
here to outline a range of available outreach options.
o Education concerning the overall TAS process.
o Explanation of the tribe’s environmental goals and its expectations for the
environmental program for which it is applying.
o Description of the opportunities for public participation offered by EPA during
the TAS process.
o Collaborative discussions between the tribe and the state where there is mutual
interest.
• For TAS applications for the CWA’s WQS and certification programs, examples of
approaches that EPA and tribes have used to reach out to governmental entities and the
public include:
o Providing a document on FAQs to interested parties regarding the TAS process
for WQS, with answers for governmental entities and the public. FAQs can be
included in the notification packages EPA sends to appropriate governmental
entities. See FAQs in Attachment E.
o Explaining the differences between EPA’s TAS decision on eligibility for a WQS
program and EPA’s decision on actual new or revised tribal WQS.

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o Describing the process that the tribe would use to adopt standards, including roles
governments and nonmembers of the tribe will have.
o Describing possible collaborative methods to work together cooperatively on
water quality issues.
Attachments to the Strategy
This Strategy includes the following attachments to assist in implementation:
•

•
•
•
•
•

•
•
•

Attachment A is a document titled “Procedural Steps for Processing Tribal Applications
for TAS Eligibility for the Clean Water Act Water Quality Standards and Certification
Programs.” This document outlines a set of steps, including estimated time frames for
TAS WQS eligibility reviews.
Attachment B lists the regulatory provisions governing TAS eligibility under the WQS
and certification programs and provides examples of documentation for addressing those
provisions.
Attachment C provides examples of information for EPA to use in assessing tribal
authority over the activities of nonmembers on a reservation under the Montana test for
TAS WQS application reviews.
Attachment D provides an overview on the significance of TAS for WQS.
Attachment E provides answers to FAQs regarding the TAS eligibility process for the
WQS program, including public input.
Attachment F is a document titled “Procedural Steps for Processing Tribal Applications
for TAS Eligibility for Regulatory Programs under the Clean Air Act.” This document
outlines a set of steps, including estimated time frames for TAS eligibility reviews under
the CAA for the purpose of regulatory programs.
Attachment G lists the regulatory provisions governing TAS eligibility under the CAA
and provides examples of documentation for addressing those provisions.
Attachment H lists the regulatory provisions governing TAS eligibility under the SDWA
PWSS program and provides examples of documentation for addressing those provisions.
Attachment I provides answers to FAQs regarding the TAS eligibility process for the
PWSS program.

Future Updates to the Strategy
This Strategy also provides for continuous EPA review of progress under this Strategy to decide
whether further tools are needed, such as additional outreach materials or materials for other
TAS regulatory programs. The American Indian Environmental Office (AIEO) will oversee this
review and, in coordination with appropriate EPA offices, will issue new or revised attachments
to the Strategy from time-to-time as needed. The AIEO will notify affected offices when
changes are made and will maintain updated information on its Tribal Portal Web site,
http://www.epa.gov/tribalportal/.
The Strategy and attachments include estimated time frames for a number of the steps in the TAS
process for the water quality standards and air programs. This Strategy and attachments will be
reviewed and amended, as appropriate, in approximately three years to include additional

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estimated time frames for the review steps in the TAS process based on experience gained in
implementing this Strategy.

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Attachment A

Procedural Steps for Processing Tribal Applications for TAS Eligibility for the

Clean Water Act Water Quality Standards and Certification Programs 1

As a general matter, the U.S. Environmental Protection Agency process for reviewing federally
recognized Indian tribes’ (tribe or tribal) applications for treatment in the same manner as a state
(TAS) eligibility for the Clean Water Act (CWA) water quality standards (WQS) and certification
programs consists of five steps. They are:
•

Step 1: The Tribe Submits an Application. 2 Tribes are encouraged to work with EPA in
developing their TAS eligibility applications to administer a WQS and certification
program. Drafts or components of the application may be shared with EPA before being
formally submitted to the Agency. After EPA examines the tribe’s application, EPA may
request additional information.
Step

•

Description

1A

Pre-application discussions and technical assistance (if
appropriate)

1B

EPA review of pre-application materials (if requested)

1C

Tribe submits application to EPA

1D

EPA initial review and request for additional information
(as appropriate) as soon as practicable.

1E

Tribe submits additional information (if requested)

Responsibility

Joint Tribe-EPA

EPA (Region) 3
Tribe

Step 2: Comment Period. Within 30 days of receipt of an application that is ready for
review, EPA provides appropriate governmental entities with notice of the tribe’s
application, including information as to the substance and basis of the tribe’s claims
regarding authority to regulate reservation water quality, and provides 30 days for
comments on the tribe’s assertion of authority. EPA also publishes a notice in relevant
newspapers, offering the public the opportunity to provide comments on tribal authority
through appropriate governmental entities. EPA then affords the tribe the opportunity to
respond to the comments.

1

This document sets out the procedures EPA intends to follow in processing TAS applications under the
CWA WQS and certification programs. EPA retains the discretion to deviate from this process when
appropriate. This document imposes no binding legal requirements.
2
Special provisions of law apply to tribes in the State of Oklahoma. Tribes in Oklahoma should contact
EPA for more information on TAS eligibility for EPA regulatory programs.
3
EPA regions always have the lead for communicating with the tribe and will generally be the lead for the
EPA team, which consists of EPA regional and headquarters personnel, involved in processing a particular
application. The team is generally activated when an application is received and works collaboratively as
needed, especially in later stages of substantive review and preparation of decision documentation.

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Attachment A

Step

•

2A

EPA notifies appropriate governmental entities and the
public (within 30 days after receipt of a tribal application
that is ready for review)

2B

Comment period (30 days)

2C

Within 45 days of the close of the comment period, EPA
assembles comments, provides them to the tribe, and
discusses a tentative schedule and next steps

2D

Tribe responds to comments (if any)

4

4

Responsibility
EPA (Region)
Commenters
EPA (Region)
Tribe

Step 3: EPA Review. A team of EPA regional and headquarters staff reviews the
application to determine whether it meets the requirements for eligibility. EPA may
request additional information from the tribe, as appropriate.
Step

•

Description

Description

3A

EPA reviews comments and tribal response (if any)

3B

Within 90 days, to the extent practicable, of the close of
the comment period, EPA discusses the need for any
additional information with the tribe (as needed)

3C

Tribe provides additional information (if requested)

Responsibility
EPA (Team)
EPA (Region)
Tribe

Step 4: Proposed Findings of Fact (if needed). Where appropriate, EPA prepares a
proposed Findings of Fact document regarding tribal authority over nonmember activities
on the reservation that would form a basis for EPA’s decision on whether the tribe has
adequate authority for purposes of the WQS and certification programs. After EPA has
received comments from the tribe, if any, on the draft proposed findings of fact, EPA
provides the proposed findings of fact to appropriate governmental entities. EPA also
offers the public the opportunity to provide comments on the proposed factual findings
through appropriate governmental entities. The tribe is given the opportunity to respond to
comments received.

In some cases, it may be appropriate for EPA to extend the comment period. EPA coordinates with the
tribe prior to allowing an extension of the comment period.

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Attachment A

•

Step

Description

Responsibility

4A

EPA reviews comments, tribal response to comments (if
any), and additional information (if any)

EPA (Team)

4B

EPA prepares a draft proposed Findings of Fact

EPA (Team)

4C

Tribe provides comments, if any, on draft proposed
Findings of Fact

Tribe

4D

EPA issues proposed Findings of Fact and notifies
5
appropriate governmental entities and the public

EPA (Region)

4E

Comment period (30 days) 6

Commenters

4F

Within 45 days of the close of the comment period, EPA
assembles comments, provides them to the tribe, and
discusses a tentative schedule and next steps

EPA (Region)

4G

Tribe responds to comments (if any)

Tribe

Step 5: Final Decision. Based on its review of all of the materials – including the
application, any proposed findings of fact, and all comments submitted – the EPA team
prepares a draft decision document, including a response to comments, and submits it for
final review within the Agency. If EPA approves the tribe’s application, the findings of
fact may be included as an appendix to the decision document. The EPA regional office
notifies the tribe in writing of EPA’s decision regarding the tribe’s application. Where
EPA approves the application, the approval letter and the decision document are
transmitted to the tribe.
Step

Description

5A

EPA prepares decision document, response to
comments

5B

EPA regional official signs decision document and
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notifies the tribe

Responsibility
EPA (Team)
EPA (Region)

5

EPA also provides supplemental application information, if any, to appropriate governmental entities.

In some cases, it may be appropriate for EPA to extend the comment period. EPA coordinates with the

tribe prior to allowing an extension of the comment period.

7
In accordance with EPA’s delegation manual, regions will seek headquarters concurrence on the first TAS

application for each program (including WQS) within a region.

6

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Attachment A
This page deliberately blank

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Attachment B

Regulatory Requirements for TAS Eligibility Under the Clean Water Act Water

Quality Standards and Certification Programs and Examples of Supporting

Documentation

The information below identifies the regulatory requirements the U.S. Environmental Protection
Agency considers in assessing a federally recognized Indian tribe (tribe or tribal) eligibility for
treatment in the same manner as a state (TAS) under the Clean Water Act (CWA) water quality
standards (WQS) and certification programs set forth in 40 CFR 131.8 and 131.4(c) and provides
examples of documentation that has been provided by tribes to meet those requirements. 1
Regulatory Provision

Examples of Documentation

1) The Indian tribe is recognized by the Secretary
of the Interior and exercises governmental
authority over a reservation. 40 CFR 131.8(a)(1);
131.3(k) and (l).
An application must include a statement that the
tribe is recognized by the Secretary of the
Interior. 40 CFR 131(b)(1).

The Secretary of the Interior publishes in the Federal
Register (FR) a list of federally recognized Indian
tribes. See
http://www.usa.gov/Government/Tribal_Sites/
Applicants often submit a recent copy of the FR list
to establish that the tribe has federal recognition.

2) The Indian tribe has a governing body
carrying out substantial governmental duties
and powers. 40 CFR 131.8(a)(2).
An application must include a descriptive
statement demonstrating that the tribal
government is carrying out substantial
governmental duties and powers over a defined
area. 40 CFR 131.8(b)(2). The statement should:
• Describe the form of the tribal government.
40 CFR 131.8(b)(2)(i).

Applications discuss the organizational structure of
the tribe and identify and describe the entities that
exercise the executive, legislative, and judicial
functions of government.

• Describe the types of governmental
functions currently performed by the tribal
government, such as, but not limited to, the
exercise of police powers affecting (or
relating to) the health, safety, or welfare of
the affected population, taxation, and the
exercise of eminent domain.
40 CFR 131.8(b)(2)(ii).

Applications discuss specific regulatory, legislative,
executive and judicial activities the tribe undertakes,
including actions to exercise its police power to
protect the environment, e.g. establishing regulatory
programs or carrying out permitting and enforcement
activities.

• Identify the source of the tribal
government’s authority to carry out the
governmental functions currently being
performed. 40 CFR 131.8(b)(2)(iii).

Applications identify sources of the tribal
government’s authority, which may include oral or
written tradition, an oral or written tribal constitution,
tribal ordinances, codes, by-laws, charters, and
resolutions, relevant provisions of federal treaties,
executive orders or statutes, etc.

1

If information or a document is provided for one purpose, it need not be reproduced again for other
purposes, as long as it is identified and explained. Where a tribe has previously qualified for TAS for
another CWA program or Safe Drinking Water Act program, it need only submit the required information
not previously provided. See 40 CFR 131.8(b) (6).

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Attachment B
Regulatory Provision

Examples of Documentation

3) The WQS program to be administered by the
Indian tribe pertains to the management and
protection of water resources that are within the
borders of the tribe’s reservation. 40 CFR
131.8(a)(3). An application must include a
descriptive statement of the Indian tribe’s
authority to regulate water quality. 40 CFR
131.8(b)(3). That statement should include:
• A map or legal description of the area over
which the tribe asserts authority to regulate
surface water quality. 40 CFR 131.8(b)(3)(i).

Applications include maps showing the area and
water resources over which the tribe asserts
authority. Some tribes provide maps based on an
official survey by the U.S. Department of the Interior
or an official map of the reservation prepared by the
Bureau of Indian Affairs. A written legal description
discusses with some specificity the locations of the
boundaries of the reservation areas over which the
tribe asserts authority.

• A statement by the tribe’s legal counsel (or
equivalent official) that describes the basis
for the tribe’s assertion of authority, and that
may include a copy of documents such as
tribal constitutions, by-laws, charters,
executive orders, codes, ordinances, and/or
resolutions that support the tribe’s assertion
of authority. 40 CFR 131.8(b)(3)(ii).

Legal counsel statements identify and discuss the
legal basis for the tribe’s assertions of authority over
areas/waters covered by the application, with special
attention to showing the tribe has jurisdiction over
nonmember activities within the reservation, if
applicable. (Attachment C provides more
information about how EPA addresses the
jurisdiction of tribes over nonmember activities.)
Statements may provide land ownership information,
including maps and summary information on tribal
trust, Indian trust, Indian fee, nonmember fee, and
other types of land status or ownership. Statements
summarize information within relevant provisions of
listed documents and explain how the documents
support the tribe’s assertion of authority.

• An identification of the surface waters for
which the tribe proposes to establish water
quality standards.
40 CFR 131.8(b)(3)(iii).

Applications identify rivers, lakes, reservoirs,
tidelands, wetlands, or other surface waters for which
the tribe is proposing to establish water quality
standards and may include a map that shows the
locations and configurations of those waters. Where
a tribe has been developing water quality standards,
the application may use information from that effort
to identify covered surface waters.

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Attachment B
Regulatory Provision

Examples of Documentation

4) The tribe is reasonably expected to be capable
of administering an effective WQS program. 40
CFR 131.8(a)(4). The application must include a
narrative statement describing the tribe’s
capability to administer an effective program. 40
CFR 131.8(b)(4). The narrative statement should
include:
• A description of the tribe’s previous
management experience, which may include
the administration of programs and services
authorized by the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450
et seq.), the Indian Mineral Development Act
(25 U.S.C. 2101 et seq.), or the Indian
Sanitation Facility Construction Activity Act
(42 U.S.C. 2004a).
40 CFR 131.8(b)(4)(i).

In addition to experience with the federal programs
listed in the regulation, tribal applications may also
discuss the tribe's previous management experience
with its own tribal programs. This discussion need
not address environmental program management
experience, which is included in the next heading.

• A list of existing environmental or public
health programs administered by the tribal
governing body and copies of related tribal
laws, policies, and regulations. 40 CFR
131.8(b)(4)(ii).

Applications describe a tribal air, water, or waste
management program, or any other environmental or
public health programs administered by the tribe, as
well as tribal experience with resource management,
including forestry and fisheries. Relevant documents
include copies or summaries of tribal laws and
regulations governing the described program(s). A
tribe is not required to have experience in
administering environmental programs, but a tribe
with such experience may wish to provide such
information.

• A description of the entity (or entities) that
exercise the executive, legislative, and
judicial functions of the tribal government.
40 CFR 131.8(b)(4)(iii).

Applications describe the tribal governmental
system. This information may overlap with or
duplicate information about the tribal governmental
structure and functions discussed under 40 CFR
131.8(b)(2)(i) above, and a tribe may refer to, rather
than repeat, that information.

• A description of the existing, or proposed,
agency of the tribe that will assume primary
responsibility for establishing, reviewing,
implementing, and revising water quality
standards.
40 CFR 131.8(b)(4)(iv).

Applications describe the tribe’s environmental
management program. Before a tribe can be
authorized to issue water quality certifications, 40
CFR 121.1(e) requires that it identify the tribal entity
that will be responsible for conducting water quality
certifications under CWA § 401.

• A description of the technical and
administrative capabilities of the staff to
administer and manage an effective water
quality standards program or a plan that
proposes how the tribe will acquire
additional administrative and technical
expertise. The plan must address how the
tribe will obtain the funds to acquire the
administrative and technical expertise. 40
CFR 131.8(b)(4)(v).

Applications describe the qualifications of tribal staff,
including resumes. Position descriptions are also
useful documentation, since individual staff may
change in future years. Or an application may
include a plan that describes how the tribe will
acquire the needed expertise to operate an effective
program and how it will obtain the funds required to
develop technical and administrative expertise.
Evidence of management of previous EPA financial
grants may be included. A tribe may choose, but is
not required, to submit draft water quality standards
as part of the showing of capability.

15

Attachment B
Regulatory Provision
5) Additional documentation required by EPA
that, in EPA’s judgment, is necessary to support
a tribal application.
40 CFR 131.8(b)(5).

16

Examples of Documentation
Additional documentation from a tribe when needed
to clarify or supplement the application.

Attachment C

Examples of Information to Show Tribal Authority over Nonmember Activities
Under Montana v. United States: Impacts of Nonmember Activities on Tribal
Political Integrity, Economic Security, or Health or Welfare 1
The information below briefly summarizes the jurisdictional showing a tribe must generally make
to establish eligibility for treatment in the same manner as a state (TAS) approval for the water
quality standards (WQS) and certification programs and provides examples of the types of
information federally recognized Indian tribes (tribe or tribal) have found useful in making that
showing. Please note, the showing any specific tribe must make will be case-specific, based on
facts applicable to the tribe’s reservation. Thus, a tribe using these examples should carefully
consider how each example applies to the tribe’s reservation – some examples may be helpful and
appropriate, but others may have only limited application, or may not apply at all. Finally, a tribe
may find that the facts concerning its reservation make it appropriate to provide information not
contained in these examples.

Introduction
The Clean Water Act (CWA) Section 518(e) (2) authorizes the U.S. Environmental Protection
Agency to treat a tribe as a state for functions that pertain to management and protection of water
resources “within the borders of an Indian reservation.” EPA has interpreted this provision to
require that a tribe show authority over the water resources for which it seeks TAS approval,
including any authority the tribe asserts over nonmember activities on the reservation. 56 Fed.
Reg. 64876, 64880 (Dec. 12, 1991). EPA analyzes a tribe’s inherent authority over nonmember
activities under the test established in Montana v. United States, 450 U.S. 544 (1981) (Montana
test). Montana held that absent a federal grant of authority, tribes generally lack inherent
jurisdiction over nonmember activities on nonmember fee land, but retain inherent civil
jurisdiction over nonmember activities within the reservation where (i) nonmembers enter into
“consensual relationships with the tribe or its members, through commercial dealing, contracts,
leases, or other arrangements” or (ii) “… [nonmember] conduct threatens or has some direct
effect on the political integrity, the economic security, or the health or welfare of the tribe.” Id. at
566.
In the preamble to EPA’s 1991 water quality standards regulation, the Agency noted that, in
applying the second prong of the Montana test and assessing the impacts of nonmember
activities on a tribe, EPA will rely upon an operating rule that evaluates whether the potential
impacts of regulated activities on the tribe are serious and substantial. 56 Fed. Reg. at 64878-79.
EPA also recognized that the analysis of whether the Montana test is met in a particular situation
necessarily depends on the specific circumstances presented by the tribe’s application. Id. at
64878. Thus, EPA’s approach to the second prong of the Montana test involves a fact-specific
inquiry to determine whether the tribe has shown that existing and potential nonmember activities

1

EPA first announced this test in the Water Quality Standards preamble, but generally uses the test
whenever it needs to determine a tribe’s inherent authority over nonmember activities.

17

Attachment C
within the reservation affecting water quality have or may have serious and substantial direct
impacts on the political integrity, economic security, or health or welfare of the tribe.

Examples of General Information to Support a Claim of Inherent Authority to
Protect Water Quality 2
To support a claim of inherent authority to protect water quality, a tribal application documents
the importance of protecting reservation waters to the tribe. General information that may help in
showing this importance could describe how the following relate to water quality protection for
these waters:
• The tribe:
o tribal culture
o tribal political and social organization
o tribal lifestyles, folkways, and values
o tribal religion
• The reservation:
o economic activity currently taking place
o economic activity that the reservation’s characteristics could support, such as
information about:
• natural resources
• climate
• soil conditions
• topography
The following types of land use information could be relevant to this inquiry:
• A copy of the Bureau of Indian Affairs map of the area over which the Indian tribe
asserts authority for purposes of the TAS application under Section 518 of the CWA
• Land ownership information (maps and summary information on tribal trust, Indian trust,
Indian fee, nonmember fee and other lands)
• Zoning maps and information about the tribe’s zoning requirements
• Sewer districts or irrigation districts (maps and summary information)
• Water Resources and hydrogeology of the reservation:
o Watersheds (maps and summary information about how water flows from lands
into downstream water bodies)
o Water bodies on and around the reservation (location, description, water quality
issues, uses, environmental sensitivity)
o Wetlands and sensitive areas
o Groundwater and surface water, including hydrogeologic connectivity, and how
pollution in one surface water body can migrate to other water bodies, or to
ground water that may be used as a drinking water source

2

The discussion below and the examples of information provided in tribal applications generally focus on
the second prong of the Montana test relating to impacts of nonmember activities. Tribes should, however,
also consider providing information regarding consensual relationships with nonmembers that may be
relevant to a demonstration of authority under the first prong of the test.

18

Attachment C
In addition to the above, EPA’s analysis may focus on the following specific types of
information:

Examples of Information About Uses of Water to be Protected
Tribal applications have identified various ways tribes use or depend on reservation waters:
• Cultural, ceremonial, etc.
• Domestic drinking water supply
• Fisheries management
• Fishing, gathering plants, and other in-water activities
• Fish and wildlife watering habitat
• Ranching/grazing (stock watering)
• Recreation
• Water rights
• Agriculture (source of irrigation water)

Examples of Nonmember Activities Identified in Tribal Applications
EPA analyzes nonmember activities that actually occur on the reservation or that could occur,
consistent with the reservation’s characteristics, and the environmental consequences of those
activities, including the following:
• Agriculture:
o Uses of pesticides or fertilizers
o Diversion of water for irrigation
• Businesses, Schools, Places of Worship:
o Wastewater facilities or septic systems
o Underground storage tanks
o Industrial operations
o Automotive repair chemicals
• Construction:
o Stormwater runoff
o Erosion and sedimentation
o Increase in amount of impervious surfaces
o Use of road chemicals
o Operation of vehicles and machinery
• Energy Development and Transport (e.g. pipelines):
o Oil and gas operations
o Coal or other mining operations
• Ranching/Grazing:
o Streambank erosion
o Concentrated animal feeding operations
o Animal access to surface water
• Residences:
o Wastewater facilities or septic systems
o Use of lawn chemicals
o Improper disposal of household hazardous chemicals

19

Attachment C
•

•

Forestry and Timber harvesting:
o Erosion
o Reduction in extent or quality of stream buffers
Recreation:
o Boating
o Fueling facilities
o Waste facilities or septic systems
o Marinas and docks
o Increase in aquatic invasive species

Examples of How Pollutants May Affect a Tribe
Applications have also discussed how pollutants actually or potentially released by nonmember
activities could affect the tribe, its members, or its resources. Those discussions have included
the following types of information:
• Impact of pollution on natural resources available to tribal members – shellfish, fin fish,
plants (e.g. wild rice)
• Impact of pollution on natural resources affecting the income of the tribe and tribal
members
• Impact of pollution on drinking water sources:
o Human health
o Costs of meeting treatment requirements
o Costs and difficulties caused by need to obtain water supplies from other sources

20

Attachment D

Overview of a Tribe’s TAS Eligibility for the
CWA Water Quality Standards Program
This document briefly describes the significance of a federally recognized Indian tribe’s (tribe or
tribal) application for the U.S. Environmental Protection Agency’s approval to be treated in the
same manner as a state (TAS) under Section 518(e) of the Clean Water Act (CWA) for purposes
of water quality standards (WQS) and certification programs. The CWA authorizes TAS for a
tribe that meets the requirements set forth in CWA Section 518(e) and 40 CFR 131.8, which
include a showing that the tribe has adequate authority over the reservation waters covered by the
application. Before making a decision on an application, EPA provides notice to appropriate
governmental entities, as well as other interested stakeholders, as to the substance and basis of the
tribe’s assertions regarding its authority.
When EPA approves a tribe’s TAS application the tribe becomes eligible to seek federal approval
of its WQS. WQS consist of designated uses for water bodies, water quality criteria to protect
those uses, and an antidegradation policy consistent with 40 CFR 131.12. A tribe’s WQS would
establish water quality goals for specific water bodies and serve as the regulatory basis for
establishing water quality-based treatment controls and strategies. To obtain federal approval of
its standards, a tribe must develop proposed standards, make them available for public comment,
hold a public hearing regarding those proposed standards, and submit them to EPA for approval.
Upon EPA approval, tribal WQS would apply to the reservation waters covered by the tribal TAS
application. However, under the CWA, standards do not impose any direct enforceable
requirements on any party, unless and until they are incorporated into a permit or used as the
basis for some other regulatory decision.
WQS are an important step in protecting water quality. Such protection benefits everyone,
including tribal members and nonmembers (including property owners), by helping ensure that
waters are fishable and swimmable.
In addition, when EPA determines a tribe is eligible for TAS for purposes of WQS, the tribe is
likewise eligible for and (once it designates a certifying agency, see 40 CFR 121.1(e)) assumes
authority for issuing water quality certifications under CWA Section 401 for the reservation
waters covered by the approval (see 40 CFR 131.4(c)). Under CWA Section 401, a federal entity
cannot issue a permit or license to discharge into waters of the United States unless the relevant
state or eligible tribe certifies that the discharge will comply with applicable water quality
requirements, including WQS, or waives such certification. EPA retains authority for issuing
water quality certifications within Indian country where a tribe has not been approved as eligible
for TAS for WQS and water quality certifications. EPA regulations at 40 CFR part 121 address
issuance of water quality certifications.
TAS approval for WQS does not give a tribe authority to administer the National Pollutant
Discharge Elimination System or any other federal permitting program. Federal approval for
issuing permits would require a separate TAS approval.

21

Attachment D
This page deliberately blank

22

Attachment E

Frequently Asked Questions: TAS Eligibility Process for the Clean Water Act
Water Quality Standards and Certification Programs
This document provides answers to FAQs about the treatment in the same manner as a state
(TAS) eligibility process for the Clean Water Act (CWA) water quality standards (WQS) and
certification programs. It explains the processes under which governmental entities or other
stakeholders can provide input during the U.S. Environmental Protection Agency’s review of
TAS eligibility applications and on WQS proposed by a federally recognized Indian tribe (tribe or
tribal). It also provides information on how WQS and certifications are implemented through
other CWA programs.
1. What requirements must a tribe meet in order to obtain approval of a TAS application
under the CWA?
Answer: In 1987, Congress amended the CWA by adding Section 518 to address the role of
tribes. Section 518 provides a method for tribes to be treated in the same manner as states for
certain CWA programs. Section 518(e) describes the criteria a tribe must meet in order to be
eligible for TAS. In accordance with CWA Section 518(e), EPA established regulations at 40
CFR 131.8 that describe the process and requirements for TAS approval to establish WQS
and provide water quality certifications under the CWA (see also 40 CFR 131.4(c)). To
obtain approval for WQS TAS under CWA Section 518(e) and EPA regulations at 40 CFR
131.8, a tribe must show that it:
•

is federally recognized by the Secretary of the U.S. Department of the Interior;

•

has a governing body carrying out substantial governmental duties and powers over a
reservation;

•

is proposing to carry out water quality standards functions that pertain to the
management and protection of water resources within a reservation and has authority
to regulate water quality; and

•

is reasonably expected to be capable of carrying out the functions of an effective
WQS program.

2. What public participation opportunities are available for TAS applications?
Answer: Under EPA’s regulations, EPA provides notice of a tribe’s assertion of authority
over waters included in its TAS application to appropriate governmental entities (states,
tribes, and other federal entities located contiguous to the reservation of the tribe applying for
TAS) for comment. Comments are limited to the tribe’s assertion of authority. EPA also
provides notice to local governments and the public, whose comments are submitted through
appropriate governmental entities. In addition, EPA provides similar opportunities for
comment regarding tribal authority over nonmember activities when it develops a Proposed
Findings of Fact document and makes that available for review prior to issuing a decision.
3. What does it mean if a tribe receives TAS for WQS and 401 certification under the
CWA?
Answer: Once EPA approves a tribe’s TAS status for a particular program under the CWA,
the tribe is generally eligible to administer that program as a state would, with TAS status
limited to the specific program covered by EPA’s TAS decision. Thus, when a tribe submits
a TAS application requesting CWA authority under Section 303(c) and Section 401, EPA’s

23

Attachment E
approval of the TAS application would apply only to those programs, and only to the
reservation waters for which the tribe seeks approval.
4. Is EPA’s approval of a TAS application for Sections 303(c) and 401 of the CWA the
same as EPA approval of tribal WQS?
Answer: No. TAS approval is not the same as EPA approval of tribal WQS. TAS makes a
tribe eligible to administer a WQS program. A tribe with TAS must still obtain federal
approval of the WQS it submits to EPA before those standards can become effective under
the CWA.
WQS consist of designated uses for water bodies, water quality criteria to protect those uses,
and an antidegradation policy consistent with 40 CFR 131.12. A tribe’s WQS would set
goals for how clean reservation waters covered by the TAS approval should be and establish
benchmarks for how activities that affect those waters can maintain acceptable water quality.
EPA approval of the tribe’s standards would enable the standards to serve as a basis for
limitations in permits for discharges into reservation waters and would enable reservation
waters to be protected by federally approved tribal CWA standards just as waters outside
Indian country may be protected by federally approved state CWA standards.
5. What is the process for development and EPA review of tribal WQS?
Answer: Like states, all tribes with TAS must follow the procedures for developing EPAapproved standards set forth at 40 CFR 131.20. Thus a tribe would develop proposed
standards, make them available to the public, hold a public hearing regarding the proposed
standards, and submit standards to EPA for approval within 30 days of adopting the
standards. A tribe with TAS that has previously developed and adopted WQS under tribal
law may use this process to seek EPA approval for its existing standards, or, where necessary,
may modify its standards to comply with the CWA. Or a tribe may develop new standards
and seek EPA approval of such standards. But in every case, a tribe with TAS must obtain
EPA approval of its standards following the same process a state must follow before the
standards take effect under the CWA.
6. Will the public be able to comment on the tribe’s WQS?
Answer: Yes. The tribe would need to hold a public hearing for the purpose of reviewing
water quality standards in accordance with provisions of tribal law, as provided in EPA’s
water quality standards regulation at 40 CFR part 131, and the public participation
regulations at 40 CFR part 25, including the requirement to make the proposed standards and
supporting analyses available to the public prior to the hearing. See 40 CFR 131.20. The tribe
would evaluate the public’s comments, adopt any appropriate revisions, and then submit the
WQS to EPA for review. EPA reviews the tribe’s standards following the same process it
uses to review WQS submitted by a state. The tribe’s WQS would be in effect under the
CWA only after EPA approval.
7. Do federally approved state WQS apply to waters in Indian country?
Answer: State standards generally do not apply to waters in Indian country under the CWA
unless the state has demonstrated authority to set such standards and EPA has expressly
found state authority and approved state standards for Indian country.
8. Are state and tribal WQS expected to be compatible?
Answer: Tribal WQS should be developed considering the quality and designated uses of
waters entering and leaving reservations. EPA’s regulations require that a state or tribe
ensure that its WQS provide for the attainment and maintenance of the WQS of downstream

24

Attachment E
waters. See 40 CFR 131.10. Thus, it is important that the tribes recognize what the
surrounding state (or another Indian reservation) WQS are even though there is no
requirement to match those standards.
EPA has recommended to tribes that they use the standards of the adjacent states as a starting
point for developing tribal standards. In most cases, the state standards are based on EPA’s
recommendations for narrative and numeric criteria. EPA’s experience has been that tribes
often set standards that are based on, or are similar to, standards set by an adjacent state.
Often, even if there are differences between a tribe’s and a state’s use designations, the water
quality criteria used by each jurisdiction to protect those uses are largely the same. Approved
tribes, as well as states, often adopt water quality criteria that are the same as EPA’s current
national recommendations. Where differences exist in numeric criteria for a particular
substance, it may simply be due to the timing of the state’s and tribe’s WQS revisions.
To the extent that differences do exist between state and tribal standards, a tribe and state may
work together to resolve differences on a case-by-case basis, just as neighboring states work
out differences. EPA regulations also provide for a mechanism to address disputes between
states and tribes arising as a result of differing WQS adopted on common bodies of water
where the difference in WQS results in unreasonable consequences. See 40 CFR 131.7.
9. Once a tribe has received TAS for Sections 303(c) and 401 of the CWA, can a tribe issue
National Pollutant Discharge Eliminations System (NPDES) Permits?
Answer: No. EPA will continue to issue NPDES permits for the reservation. The tribe’s
TAS for WQS applies only to the tribe’s authority to establish WQS under Section 303(c) of
the CWA for reservation waters covered by the application and to issue water quality
certifications under Section 401 of the CWA for federal permits and licenses for activities
that discharge to those waters. A tribe must qualify for TAS status for each provision of the
CWA or environmental program that it seeks to implement. At this time, no tribe has been
approved for TAS status to administer the NPDES or any other CWA permit program on its
reservation. An NPDES permit issued by EPA would need to contain any limits necessary to
ensure compliance with EPA-approved tribal WQS. For a discharge upstream of the
reservation, an NPDES permit must include conditions that ensure compliance with the
applicable water quality requirements of the downstream waters covered by a TAS approval.
See 40 CFR 122.4(d); 40 CFR 122.44(d) (3) and (4).
10. Once a tribe has received TAS for Sections 303(c) and 401 of the CWA, can the tribe
prepare Section 401 Water Quality Certifications?
Answer: Once a tribe with TAS designates a certifying agency, see 40 CFR 121.1(e), that
agency becomes authorized to prepare water quality certifications for federal permits and
licenses for activities that may result in any discharge to the reservation waters covered by the
TAS approval. Where EPA approves a tribe for TAS for purposes of WQS, the tribe likewise
is eligible to the same extent as a state for purposes of certifications conducted under Section
401 of the CWA. EPA regulations (40 CFR part 121) address the issuance of water quality
certifications by states and tribes with TAS.
This means that a tribe would evaluate whether a discharge under a federal license or permit
would be consistent with the tribe’s WQS and decide whether to grant, deny, or condition a
water quality certification under Section 401 of the CWA. Thus, a federally issued NPDES
or Section 404 permit for a facility (or activity) discharging into reservation waters covered
by the TAS approval could not be issued without a tribal CWA Section 401 certification or
waiver. EPA retains authority for issuing water quality certifications where a tribe has not
been approved for TAS for WQS and water quality certifications. The CWA also provides a

25

Attachment E
tribe with TAS a formal role in commenting on federal licenses or permits for discharges
upstream from or adjacent to tribal waters. See CWA Section 401(a) (2).
11. Does TAS approval for Sections 303(c) and 401 of the CWA give a tribe enforcement
authority for WQS under the CWA?
Answer: No. EPA’s approval of a tribe’s TAS application would not provide any
enforcement authority to the tribe under the CWA. WQS help protect and improve water
quality, but do not impose any directly enforceable requirements on any party. They do serve
as a basis for specific control actions, such as effluent limitations in permits, that are
enforceable, but the tribe’s TAS approval to establish WQS and provide water quality
certifications does not provide the tribe with any authority to enforce the standards. EPA
would remain the entity with enforcement authority under the CWA. Unless and until a tribe
is federally approved to implement a federal permitting program, if a tribe chooses to
establish any regulations or enforcement measures to enforce the standards, it must do so
under tribal law pursuant to the tribe’s inherent authority as a sovereign government.
Under the CWA, a tribe’s WQS would serve as benchmarks for water quality when EPA
issues NPDES permits to facilities or when the U.S. Army Corps of Engineers issues Section
404 permits for activities that discharge to the reservation waters covered by the TAS
approval. EPA or the Corps of Engineers is responsible for both issuing and enforcing these
permits, which would include any conditions based on a tribe’s Section 401 certification.
12. How would tribal water quality standards affect Total Maximum Daily Loads
(TMDLs)?
Answer: A TMDL is a “pollution budget” for a water body that is failing to meet applicable
WQS. A TMDL includes (1) a calculation of the maximum amount of a pollutant that a
water body can receive and still meet WQS and (2) allocations of that total pollutant load to
its point and nonpoint sources.
Water bodies on a reservation that have been listed under Section 303(d) of the CWA as not
meeting applicable WQS require development of a TMDL set at a level that will implement
the applicable WQS with seasonal variations and a margin of safety. For reservation waters,
EPA could establish any needed TMDLs until the tribe obtains TAS for the TMDL program.
TAS approval for TMDLs under Section 303(d) requires a separate approval beyond a TAS
approval for Section 303(c) and Section 401 of the CWA.

26

Attachment F

Procedural Steps for Processing Tribal Applications for TAS Eligibility for
Regulatory Programs Under the Clean Air Act 1
The U.S. Environmental Protection Agency process for reviewing a federally-recognized tribe’s
(tribe or tribal) application for treatment in the same manner as a state (TAS) eligibility to
administer a regulatory program under the Clean Air Act (CAA) consists of four steps. They are:
•

Step 1: The Tribe Submits an Application. 2 Tribes are encouraged to work with EPA in
developing their TAS eligibility applications to administer CAA programs. Drafts or
components of the application may be shared with EPA before being formally submitted to
the Agency. After EPA examines the tribe’s application, EPA may request additional
information.
Step

•

Description

1A

Pre-application discussions and technical assistance if
appropriate

1B

EPA review of pre-application materials (if requested)

1C

Tribe submits application to EPA

1D

EPA notifies the tribe of receipt of the application, and, as
needed, requests additional information from the tribe,
within 30 days of receipt of the application

1E

Tribe submits additional information (if applicable)

Responsibility

Joint Tribe-EPA

EPA (Region)
Tribe

Step 2: EPA Review. EPA reviews the initial or revised application to verify that it is
complete, i.e. includes all the basic information required for an eligibility determination.
When EPA determines it has received a complete, initial application, it notifies the tribe
that the application is complete, and provides notice to appropriate governmental entities
regarding the application.
Step

Description

Responsibility

2A

EPA reviews application and determines if the application is
complete

EPA (Region)

2B

EPA notifies all appropriate governmental entities of the
application and how it identifies the reservation’s
boundaries, and of any assertions regarding tribal authority
over non-reservation areas, within 30 days of receipt of
initial, complete application

EPA (Region)

2C

EPA notifies the tribe, in writing, that the application is
complete no later than when EPA provides the notification
in Step 2B

EPA (Region)

1

This document sets out the procedures EPA intends to follow in processing TAS applications under the
CAA. EPA retains the discretion to deviate from this process when appropriate. This document imposes
no binding legal requirements.
2
Special provisions of law may apply to tribes in the State of Oklahoma. Tribes in Oklahoma should
contact EPA for more information on TAS eligibility for EPA regulatory programs.

27

Attachment F
•

Step 3: Comment Period (if needed). Appropriate governmental entities and the public
have 30 days to comment regarding the reservation’s boundaries and tribal authority over
non-reservation areas. See 40 CFR 49.9(b). EPA provides the comments to the tribe,
which has the opportunity to respond. Where there is a dispute concerning tribal authority
that EPA cannot promptly resolve, it may approve the portion of an application addressing
undisputed areas. See 40 CFR 49.9(e).
Step

•

Responsibility

3A

Appropriate governmental entities and the public have the
opportunity to comment regarding the reservation’s
boundaries or tribal authority over non-reservation areas;
comments are generally due within 30 days

Commenters

3B

EPA provides the comments to the tribe within 30 days of
the close of the comment period

EPA (Region)

3C

The tribe reviews the comments and may respond

Tribe

Step 4: Final TAS Eligibility Decision. Based on its review of all the material –
including the application, the administrative record, comments submitted, and any tribal
responses – if EPA is prepared to approve the tribe’s TAS application, the EPA team
produces a draft decision document, including a response to comments for final review
within the Agency. 3 The regional office notifies the tribe in writing of EPA’s approval of
the tribe’s TAS application. The approval letter and the decision document are transmitted
to the tribe. A determination by the EPA Regional Administrator concerning the
boundaries of a reservation or tribal jurisdiction over non-reservation areas applies to all
future CAA applications from the tribe, with no further notice to governmental entities
unless the application presents different jurisdictional issues or significant new factual or
legal information relevant to jurisdiction. See 40 CFR 49.9(f).
Step

3

Description

Description

Responsibility

4A

EPA prepares decision document and response to
comments

4B

EPA regional official signs decision document

EPA (Region)

4C

EPA notifies tribe of decision within 30 days of signature

EPA (Region)

EPA (Team)

If the EPA Regional Administrator determines that a tribe meets the requirements of 40 CFR 49.6 for
purposes of a CAA provision, the tribe is eligible to be treated in the same manner as a state with respect to
that provision. The eligibility will extend to all areas within the exterior boundaries of the tribe’s
reservation, as determined by the EPA Regional Administrator, and any other areas the EPA Regional
Administrator has determined to be within the tribe’s jurisdiction. See 40 CFR 49.9(g).

28

Attachment G

Regulatory Requirements for TAS Eligibility Under the Clean Air Act and
Examples of Supporting Documentation
The information below identifies the regulatory requirements the U.S. Environmental Protection
Agency considers in assessing a federally recognized Indian tribe’s (tribe or tribal) application for
treatment in the same manner as a state (TAS) under the Clean Air Act (CAA) Tribal Authority
Rule set forth in 40 CFR part 49 and provides examples of documentation that has been provided
by tribes to meet those requirements. 1
Regulatory Provision

Examples of Documentation

1) An Indian tribe must be federally recognized.
40 CFR 49.6(a). To meet this requirement, a tribe
should provide a concise statement that it is
recognized by the Secretary of the Interior.
40 CFR 49.7(a) (1).

The Secretary of the Interior publishes in the Federal
Register (FR) a list of federally recognized Indian
tribes. Applicants often submit a recent copy of the
FR list to establish that the tribe has federal
recognition.

2) The tribe has a governing body carrying out
substantial governmental duties and powers. 40
CFR 49.6(b). An application should include a
descriptive statement demonstrating that it is
currently carrying out substantial governmental
duties and powers over a defined area. 40 CFR
49.7(a) (2). The statement should:
• Describe the form of the tribal government.
40 CFR 49.7(a) (2) (i).

Applications discuss the organizational structure of
the tribe and identify and describe the entities that
exercise the executive, legislative, and judicial
functions of government.

• Describe the types of government functions
currently performed by the tribal governing
body such as, but not limited to, the exercise
of police powers affecting (or relating to) the
health, safety, and welfare of the affected
population; taxation; and the exercise of the
power of eminent domain.
40 CFR 49.7(a) (2) (ii).

Applications discuss specific regulatory, legislative,
executive and judicial activities the tribe undertakes,
including actions to exercise its police power to
protect the environment, e.g. establishing regulatory
programs or carrying out permitting and enforcement
activities.

• Identify the source of the tribal government's
authority to carry out the governmental
functions currently being performed.
40 CFR 49.7(a) (2) (iii).

Applications identify sources of the tribal
government’s authority, which may include oral or
written tradition, an oral or written tribal constitution,
tribal ordinances, codes, by-laws, charters, and
resolutions, relevant provisions of federal treaties,
executive orders or statutes, etc.

1

Where the applicant has previously received authorization for a CAA program or for any other EPAadministered program, the applicant need only identify the prior authorization and provide the required
information that has not been submitted in the previous application. 40 CFR 49.7(a) (8).

29

Attachment G

Regulatory Provision

Examples of Documentation

3) The functions to be exercised by the Indian
tribe pertain to the management and protection
of air resources within the exterior boundaries of
the reservation or other areas within the tribe’s
jurisdiction. 40 CFR 49.6(c). A tribe’s application
should include a descriptive statement of the
Indian tribe’s authority to regulate air quality. 40
CFR 49.7(a) (3).
ƒ For applications covering areas within the
exterior boundaries of the applicant’s
reservation, the statement must identify with
clarity and precision the exterior boundaries
of the reservation including, for example, a
map and legal description of the area.
40 CFR 49.7(a) (3).

EPA interprets CAA § 301(d) as a Congressional
delegation of authority to eligible federally
recognized tribes for all air resources within a
reservation. Thus, a tribe’s application must
establish the reservation’s location and boundaries.
Applications include maps showing the area and air
resources over which the tribe asserts authority. A
map may be based on an official survey by the U.S.
Department of the Interior or an official map of the
reservation prepared by the Bureau of Indian Affairs.
A written legal description discusses with some
specificity the locations of the boundaries of the
reservation areas over which the tribe asserts
authority.

• For tribal applications covering areas
outside the boundaries of the reservation,
the statement should include:

30

o A map or legal description of the area
over which the application asserts
authority. 40 CFR 49.7(a) (3) (i).

Applications include maps showing the area and air
resources over which the tribe asserts authority. A
map may be based on an official survey by the U.S.
Department of the Interior or an official map of the
reservation prepared by the Bureau of Indian Affairs.
A written legal description discusses with some
specificity the locations of the boundaries of the
reservation areas over which the tribe asserts
authority.

o A statement by the applicant's legal
counsel (or equivalent official) that
describes the basis for the tribe's
assertion of authority (including the
nature or subject matter of the asserted
regulatory authority) which may include
a copy of documents such as tribal
constitutions, by-laws, charters,
executive orders, codes, ordinances,
and/or resolutions that support the
tribe's assertion of authority.
40 CFR 49.7(a) (3) (ii).

Legal counsel statements identify and discuss the
legal basis for the tribe’s assertions of authority over
areas covered by the application, with special
attention to showing the tribe has jurisdiction over
nonmember activities, if applicable.

Attachment G

Regulatory Provision

Examples of Documentation

4) The tribe is reasonably expected to be capable
of effectively administering the Clean Air Act
program for which the tribe is seeking approval.
40 CFR 49.6(d). The application should include:
• A narrative statement describing the
capability of the applicant to administer
effectively the Clean Air Act program for
which the tribe is seeking approval. The
narrative statement must demonstrate the
applicant's capability consistent with the
applicable provisions of the Clean Air Act
and implementing regulations.
40 CFR 49.7(a) (4).

Examples of the recommended content of this
narrative are listed below:

And, if requested by the Regional Administrator,
the statement may include:
• A description of the Indian tribe's previous
management experience which may include
the administration of programs and services
authorized by the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450,
et seq.), the Indian Mineral Development Act
(25 U.S.C. 2101, et seq.), or the Indian
Sanitation Facility Construction Activity Act
(42 U.S.C. 2004a). 40 CFR 49.7(a) (4) (i).

In addition to experience with the federal programs
listed in the regulation, tribal applications may also
discuss the tribe's previous management experience
with its own tribal programs. This discussion need
not address environmental program management
experience, which is included in the next heading.

• A list of existing environmental or public
health programs administered by the tribal
governing body and a copy of related tribal
laws, policies, and regulations.
40 CFR 49.7(a) (4) (ii).

Applications describe a tribal air, water, or waste
management program, or any other environmental or
public health programs administered by the tribe, as
well as tribal experience with resource management.
Relevant documents include copies or summaries of
tribal laws and regulations governing the described
program(s). A tribe is not required to have
experience in administering environmental
programs, but a tribe with such experience may wish
to provide such information.

• A description of the entity (or entities) that
exercise the executive, legislative, and
judicial functions of the tribal government.
40 CFR 49.7(a) (4) (iii).

Applications describe the tribal governmental
system. This information may overlap with or
duplicate information about the tribal governmental
structure and functions discussed under 40 CFR
49.7(a) (2) above, and a tribe may refer to, rather
than repeat, that information.

• A description of the existing, or proposed,
agency of the Indian tribe that will assume
primary responsibility for administering a
Clean Air Act program (including a
description of the relationship between the
existing or proposed agency and its
regulated entities). 40 CFR 49.7(a) (4) (iv).

Applications describe the tribe’s environmental
management program.

31

Attachment G
Regulatory Provision
• A description of the technical and
administrative capabilities of the staff to
administer and manage an effective air
quality program or a plan which proposes
how the tribe will acquire administrative and
technical expertise. The plan should
address how the tribe will obtain the funds to
acquire the administrative and technical
expertise.
40 CFR 49.7(a) (4) (v).
5) Additional information required by EPA that, in
EPA’s judgment, is necessary to support a tribal
application. 40 CFR 49.7(a) (7).

32

Examples of Documentation
Applications describe the qualifications of tribal staff,
including resumes. Position descriptions are also
useful documentation, since individual staff may
change in future years. Or an application may
include a plan that describes how the tribe will
acquire the needed expertise to operate an effective
program and how it will obtain the funds required to
develop technical and administrative expertise.

Additional documentation from a tribe when needed
to clarify or supplement the application.

Attachment H

Regulatory Requirements for TAS Eligibility Under the Safe Drinking Water Act
Public Water System Supervision Program and Examples of Supporting
Documentation
The information below identifies the regulatory requirements that the U.S. Environmental
Protection Agency considers in assessing a federally recognized Indian tribe’s (tribe or tribal)
application for treatment in the same manner as a state (TAS) as part of its review of a tribal
application for primary enforcement responsibility to implement the national standards for the
Safe Drinking Water Act public water system supervision (PWSS) program under 40 CFR part
142, subpart B. This document addresses the TAS requirements set forth in 40 CFR 142.72 and
142.76 and provides examples of documentation that can meet those requirements. 1
Regulatory Provision

Examples of Documentation

1) The Indian tribe must be federally recognized
by the Secretary of the Interior. 40 CFR 142.72(a).
To meet this requirement, the tribe’s application
must include a statement that the tribe is
recognized by the Secretary of the Interior.
40 CFR 142.76(a)

The Secretary of the Interior publishes in the Federal
Register (FR) a list of federally recognized Indian
tribes. Applicants often submit a recent copy of the
FR list to establish that the tribe has federal
recognition.

2) The Indian tribe has a tribal governing body
carrying out substantial governmental duties and
powers. 40 CFR 142.72(b). An application must
include a concise, descriptive statement
demonstrating that the tribal governing body is
currently carrying out substantial governmental
duties and powers over a defined area. 40 CFR
142.76(b). That statement should:
• Describe the form of the tribal government.
40 CFR 142.76(b) (1).

An application may discuss the organizational
structure of the tribe and identify and describe the
entities that exercise the executive, legislative, and
judicial functions of government.

• Describe the types of governmental
functions currently performed by the tribal
governing body such as, but not limited to,
the exercise of police powers affecting (or
relating to) the health, safety, and welfare of
the affected population; taxation; and the
exercise of the power of eminent domain.
40 CFR 142.76(b) (2).

An application may discuss specific regulatory,
legislative, executive, and judicial activities the tribe
undertakes, including actions to exercise its police
power to protect the environment, e.g. establishing
regulatory programs or carrying out permitting and
enforcement activities.

• Identify the sources of the tribal
government's authority to carry out the
governmental functions currently being
performed. 40 CFR 142.76(b) (3).

Applications identify sources of the tribal
government’s authority, which may include oral or
written tradition, an oral or written tribal constitution,
tribal ordinances, codes, by-laws, charters,
resolutions, relevant provisions of federal treaties,
executive orders, or statutes, etc.

1

Where the applicant has previously been granted TAS eligibility for a Safe Drinking Water Act, Clean
Water Act, or Clean Air Act program, the applicant need only provide the required information unique to
the Public Water System Supervision program. See 40 CFR 142.76(f).

33

Attachment H
Regulatory Provision

Examples of Documentation

3) The Indian tribe demonstrates that the
functions to be performed in regulating the
public water systems that the applicant intends
to regulate are within the area of the Indian tribal
government’s jurisdiction. 40 CFR 142.72(c). 2
The application must include:
• A map or legal description of the area over
which the Indian tribe asserts jurisdiction.
40 CFR 142.76(c).

Applications include maps showing the area and
public water systems over which the tribe asserts
authority. Some tribes provide maps based on an
official survey by the U.S. Department of the Interior
or an official map of the reservation prepared by the
Bureau of Indian Affairs. A written legal description
discusses with some specificity the locations of the
boundaries of the reservation areas over which the
tribe asserts authority.

• A statement by the Tribal Attorney General
(or equivalent official) that describes the
basis for the tribe’s jurisdictional assertions
(including the nature or subject matter of the
asserted jurisdiction) and a copy of those
documents such as tribal constitutions, bylaws, charters, executive orders, codes,
ordinances, and/or resolutions that the tribe
believes are relevant to its assertions
regarding jurisdiction. 40 CFR 142.76(c).

Legal counsel statements identify and discuss the
legal basis for the tribe’s assertions of authority over
areas/water systems covered by the application, with
special attention to showing the tribe has jurisdiction
over nonmember activities, if applicable. Statements
may provide land ownership information, including
maps and summary information on tribal trust, Indian
trust, Indian fee, nonmember fee, and other types of
land status or ownership. Statements summarize
information within relevant provisions of listed
documents and explain how the documents support
the tribe’s assertion of authority.

• A description of the locations of the public
water systems the tribe proposes to
regulate. 40 CFR 142.76(c).

Applications identify the public water systems for
which the tribe intends to regulate, describe their
locations, and may include a map that shows the
locations and configurations of those public water
systems.

2

This overlaps with the requirement that a state or tribe seeking primacy must demonstrate that its laws and
ordinances to carry out the PWSS program were duly adopted and are enforceable, 40 CFR 142.11(a) (7)
(i), and that it has adequate authority to carry out primary enforcement responsibility. 40 CFR 142.11(a) (7)
(ii).

34

Attachment H

Regulatory Provision

Examples of Documentation

4) The Indian tribe is reasonably expected to be
capable of administering (in a manner consistent
with the terms and purposes of the Safe Drinking
Water Act and all applicable regulations) an
effective Public Water System Supervision
program. 40 CFR 142.72(d). The application must
include a narrative statement describing the
capability of the Indian tribe to administer an
effective Public Water System Supervision
program. 40 CFR 142.76(d). That statement
should include:
• A description of the Indian tribe's previous
management experience, which may include
the administration of programs and services
authorized by the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450
et seq.), the Indian Mineral Development Act
(25 U.S.C. 2101, et seq.), or the Indian
Sanitation Facility Construction Activity Act
(42 U.S.C. 2004a). 40 CFR 142.76(d) (1).

In addition to experience with the federal programs
listed in the regulation, tribal applications may also
discuss the tribe's previous management experience
with its own tribal programs. This discussion need
not address environmental program management
experience, which is included in the next heading.

• A list of existing environmental or public
health programs administered by the tribal
governing body and a copy of related tribal
laws, regulations, and policies.
40 CFR 142.76(d) (2).

Applications describe a tribal air, water, or waste
management program, or any other environmental or
public health programs administered by the tribe, as
well as tribal experience with resource management,
including forestry and fisheries. Relevant documents
include copies or summaries of tribal laws and
regulations governing the described program(s). A
tribe is not required to have experience in
administering environmental programs, but a tribe
with such experience may wish to provide such
information.

• A description of the Indian tribe’s accounting Applications may describe the system of recordand procurement systems. 40 CFR 142.76(d) keeping and accounting the applicant uses for
managing tribal funds and how it procures goods or
(3).
services. A tribe that has received EPA financial
assistance will have managed procurement under its
grant using a system consistent with the
procurement requirements set forth at 40 CFR 31.36.
• A description of the entity (or entities) that
exercise the executive, legislative, and
judicial functions of the tribal government.
40 CFR 142.76(d) (4).

Applications describe the tribal governmental
system. This information may overlap with or
duplicate information about the tribal governmental
structure and functions discussed under 40 CFR
142.76(b) (1) above, and a tribe may refer to, rather
than repeat, that information.

• A description of the existing, or proposed,
agency of the Indian tribe that will assume
primary enforcement responsibility,
including a description of the relationship
between owners/operators of the public
water systems and the agency.
40 CFR 142.76(d) (5).

Applications describe the tribe’s environmental
management program.

35

Attachment H
Regulatory Provision
• A description of the technical and
administrative capabilities of the staff to
administer and manage an effective Public
Water System Supervision program or a plan
that proposes how the tribe will acquire
additional administrative and/or technical
expertise. The plan must address how the
tribe will obtain the funds to acquire the
additional administrative and technical
expertise. 40 CFR 142.76(d) (6).
5) Additional information required by EPA that, in
EPA’s judgment, is necessary to support a
tribe’s eligibility. 40 CFR 142.76(e).

36

Examples of Documentation
Applications describe the qualifications of tribal staff,
including resumes. Position descriptions are also
useful documentation, since individual staff may
change in future years. Or an application may
include a plan that describes how the tribe will
acquire the needed expertise to operate an effective
program and how it will obtain the funds required to
develop technical and administrative expertise.
Evidence of management of EPA grants may also be
included.
Additional documentation as requested from a tribe
by EPA may be needed to clarify or supplement the
application.

Attachment I
Frequently Asked Questions: TAS Eligibility Process for the Safe Drinking Water
Act Public Water System Supervision Program
This document provides answers to FAQs about the treatment in the same manner as a state
(TAS) eligibility process for the Safe Drinking Water (SDWA) Public Water System Supervision
(PWSS) program.
1. What is the Public Water System Supervision program?
Answer: The SDWA is designed to protect public health through maintaining and improving
the quality of the nation’s drinking waters. The 1974 law was amended in 1986 to address
federally recognized Indian tribes (tribes or tribal) and further amended in 1996. The SDWA
authorizes many actions to protect drinking water and its sources. Through the PWSS
program, the U.S. Environmental Protection Agency implements and enforces drinking water
standards to protect public health.
2. What water systems are regulated under the SDWA?
Answer: The SDWA regulates water systems that serve 25 or more persons or have at least
15 connections. Regulated systems can be either privately or publicly owned. The SDWA
does not regulate private wells or systems that serve fewer than 25 individuals.
3. What is TAS?
Answer: The SDWA authorizes EPA to treat eligible Indian tribes in the same manner as a
state for the purpose of assuming primary enforcement responsibility for the PWSS program.
A tribe must obtain TAS eligibility approval in order to assume such a role. TAS is sought in
conjunction with primacy or a program development grant and is not a separate process.
4. What is Primacy?
Answer: Tribes may be approved for primary enforcement responsibility (or “primacy”) to
implement the national standards for the PWSS program at public water systems under their
jurisdiction. For a tribe to obtain primacy, EPA must approve the tribe for TAS and
determine that the tribe meets the requirements for primacy under Section 1413(a) of the
SDWA, 42 U.S.C. § 300g-2(a), and 40 CFR part 142, subpart B. TAS is sought in
conjunction with primacy and is not a separate process. The Tribal Primacy: An Overview
brochure (EPA 816-K-02-007) provides more details about primacy requirements for the
PWSS program. EPA regions retain primary enforcement authority for the PWSS program in
the absence of an EPA-approved PWSS program in Indian country.
5. Can my tribe receive funding from EPA to develop a primacy program?
Answer: Yes. The SDWA authorizes financial assistance to states and to tribes with TAS
approval for the PWSS program to develop primacy programs. As part of the process for
obtaining a PWSS grant to develop a primacy program, a tribe must obtain approval for TAS
for purposes of receiving a grant.
6. Is my tribe eligible for TAS for the PWSS Program?
Answer: There are four requirements for tribal TAS eligibility. A tribe must 1) be
recognized by the Secretary of the Interior; 2) have a functional tribal government responsible
for the health, safety, and welfare of the tribal community; 3) be able to demonstrate that the

37

Attachment I
regulatory functions to be performed in the public water systems are within the Indian tribal
government’s jurisdiction; and 4) be capable of administering an effective PWSS program
consistent with the SDWA and all applicable regulations. 40 CFR 142.72
7. How can my tribe apply for TAS?
Answer: Your tribe applies for TAS as part of the process of applying for a grant or for
primacy. To apply for TAS, your tribe must meet the TAS eligibility requirements at 40 CFR
142.72 by providing the following information identified in 40 CFR 142.76: 1) a statement
that the tribe is recognized by the Secretary of the Interior; 2) information about the tribal
government; 3) proof of tribal authority; and 4) a description of administrative capabilities.
The EPA Administrator may request further documentation necessary to support a tribe’s
eligibility for TAS.
More detailed information about the TAS application process and application materials can
be found in the Treatment in the Same Manner as a State (TAS) for the Public Water System
Supervision (PWSS) Program Fact Sheet (EPA 816-F-07-006) and in Attachment H of this
TAS review strategy.
8. What if my tribe has already met the requirements for TAS eligibility under the SDWA
for the Underground Injection Control (UIC) Program, the Clean Water Act (CWA), or
the Clean Air Act (CAA)?
Answer: If the EPA Administrator has previously determined that a tribe has met the
requirements for TAS eligibility under the SDWA for the UIC Program, the CWA, or the
CAA, then that tribe only needs to provide information unique to the PWSS program. More
details can be found in the Treatment in the Same Manner as a State (TAS) for the Public
Water System Supervision (PWSS) Program Fact Sheet (EPA 816-F-07-006) (see paragraphs
3, 4e, and 4f under TAS Application Materials).
9. Where should my tribe send the application materials?
Answer: You will want to work closely with the EPA regional office as you are preparing
your application. The EPA regional office can answer questions and provide guidance while
you prepare your application. When completed, applications should be sent to the EPA
regional office that currently implements and enforces the SDWA for your tribe. To find
information about which EPA region works with your tribe, visit
http://www.epa.gov/indian/map.htm.
10. Where can I get more information about TAS?
Answer: The Treatment in the Same Manner as a State (TAS) for the Public Water System
Supervision (PWSS) Program Fact Sheet (EPA 816-F-07-006) and Attachment H of this TAS
review strategy provide detailed information about the TAS application process and
application materials. EPA’s American Indian Environmental Office also has information on
TAS as well as other laws, regulations, and guidance related to Indian country on its Web site
at http://www.epa.gov/indian/.

38