Section 518 of the Clean Water Act (CWA) authorizes the EPA to treat Indian Tribes in the same manner as a State (TAS) for the purposes of administering and implementing a water quality standards program (CWA Section 303). Coupled with this is also the authority to review and certify (or not certify) certain permits written by the EPA, States, and the Army Corps. of Engineers that may adversely affect the waters over which the Tribe has authority (CWA Section 401).

To qualify, tribes must meet the criteria described in the CWA Section 518  This involves an extensive and in-depth review by EPA at various levels by the respective EPA Regional staff—both water quality technical staff and legal staff. If regional EPA staff determines that the application is appropriate and complete, they make a recommendation to EPA headquarters to approve the application. It is then reviewed at the headquarters level and that staff may authorize the EPA Regional Administrator to approve the application.

The paragraph above is a very simple description of the process, and because each application is reviewed on a case-by-case basis, each review involves unique characteristics and case review. The process can be quite complicated, especially whenTribes are asserting jurisdiction over “fee lands” or “allotted lands” where non-tribal members may live or work or where the land status is not explicitly determined to be “held in trust” for the tribe in question. The process can often take years to unfold.

In September of 2005, the EPA approved the Ute Mountain Ute Tribe’s application to be treated in the same manner as a State for the purposes of implementing Clean Water Act Section 303 and 401. Here are the approval letter and decision document.