Indian Tribes
EPA Should Reduce the Review Time for Tribal Requests to Manage Environmental Programs Gao ID: GAO-06-95 October 31, 2005The Clean Water, Safe Drinking Water, and Clean Air Acts authorize the Environmental Protection Agency (EPA) to treat eligible Indian tribes in the same manner as a state (referred to as TAS) for implementing and managing environmental programs on Indian lands. Some states are concerned that tribes receiving authority to manage these programs may set standards that exceed the state standards and hinder states' economic development. GAO was asked to report on the (1) extent to which EPA has followed its processes for reviewing and approving tribal applications for TAS and program authorization under the three acts, (2) programs EPA uses to fund tribal environmental activities and the amount of funds provided to tribes between fiscal years 2002 and 2004, and (3) types of disagreements between parties over EPA's approval of TAS status and program authorization and methods used to address these disagreements.
EPA generally followed its established processes for reviewing and approving tribal requests for TAS and program authority under the three acts, according to GAO's analysis of approved requests. However, the review time for approving these requests generally took from about 1 year to more than 4 years. In addition, nearly all of the requests currently under review were submitted more than 1 year ago. Key factors contributing to the lengthy reviews include the multiple reviews required by the agency's regional and headquarters offices, a lack of emphasis within the agency to complete the reviews in a timely manner, and turnover of tribal and EPA staff. Moreover, EPA has not developed a written strategy that establishes overall time frames for reviewing requests. EPA officials agreed that more could be done to improve the timeliness of the review process but said that complex issues--including evolving Indian case law and jurisdictional issues--may have contributed to the lengthy reviews. Furthermore, EPA's review process is not always transparent on the status of tribes' TAS requests. Lack of transparency limits tribes' understanding of what issues may be delaying EPA's approval and what actions, if any, may be needed to address the issues. EPA provided Indian tribes about $360 million in grants to fund a broad range of tribal environmental activities from fiscal years 2002 through 2004. About half of these funds were distributed through two acts: the Indian Environmental General Assistance Program Act (about $114 million)--to help build capacity to administer environmental programs--and the Clean Water Act (about $66 million)--to help prevent and reduce water pollution. Since 1986, when Congress began amending the three environmental acts to allow TAS for tribes, disagreements over land boundaries and environmental standards have arisen between tribes, states, and others. Disagreements have been addressed through litigation, collaboration, and federal laws.
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Director: Team: Phone:GAO-06-95, Indian Tribes: EPA Should Reduce the Review Time for Tribal Requests to Manage Environmental Programs
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Report to Congressional Requesters:
October 2005:
Indian Tribes:
EPA Should Reduce the Review Time for Tribal Requests to Manage
Environmental Programs:
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-06-95]
GAO Highlights:
Highlights of GAO-06-95, a report to congressional requesters:
Why GAO Did This Study:
The Clean Water, Safe Drinking Water, and Clean Air Acts authorize the
Environmental Protection Agency (EPA) to treat eligible Indian tribes
in the same manner as a state (referred to as TAS) for implementing and
managing environmental programs on Indian lands. Some states are
concerned that tribes receiving authority to manage these programs may
set standards that exceed the state standards and hinder states‘
economic development. GAO was asked to report on the (1) extent to
which EPA has followed its processes for reviewing and approving tribal
applications for TAS and program authorization under the three acts,
(2) programs EPA uses to fund tribal environmental activities and the
amount of funds provided to tribes between fiscal years 2002 and 2004,
and (3) types of disagreements between parties over EPA‘s approval of
TAS status and program authorization and methods used to address these
disagreements.
What GAO Found:
EPA generally followed its established processes for reviewing and
approving tribal requests for TAS and program authority under the three
acts, according to GAO‘s analysis of approved requests. However, the
review time for approving these requests generally took from about 1
year to more than 4 years. In addition, nearly all of the requests
currently under review were submitted more than 1 year ago. Key factors
contributing to the lengthy reviews include the multiple reviews
required by the agency‘s regional and headquarters offices, a lack of
emphasis within the agency to complete the reviews in a timely manner,
and turnover of tribal and EPA staff. Moreover, EPA has not developed a
written strategy that establishes overall time frames for reviewing
requests. EPA officials agreed that more could be done to improve the
timeliness of the review process but said that complex issues”including
evolving Indian case law and jurisdictional issues”may have contributed
to the lengthy reviews. Furthermore, EPA‘s review process is not always
transparent on the status of tribes‘ TAS requests. Lack of transparency
limits tribes‘ understanding of what issues may be delaying EPA‘s
approval and what actions, if any, may be needed to address the issues.
EPA provided Indian tribes about $360 million in grants to fund a broad
range of tribal environmental activities from fiscal years 2002 through
2004. About half of these funds were distributed through two acts: the
Indian Environmental General Assistance Program Act (about $114
million)”to help build capacity to administer environmental
programs”and the Clean Water Act (about $66 million)”to help prevent
and reduce water pollution.
Since 1986, when Congress began amending the three environmental acts
to allow TAS for tribes, disagreements over land boundaries and
environmental standards have arisen between tribes, states, and others.
Disagreements have been addressed through litigation, collaboration,
and federal laws.
States Where Tribes Are Approved for Program Authority, as of June
2005:
[See PDF for image]
[End of figure]
What GAO Recommends:
GAO recommends EPA develop a written strategy, including estimated time
frames, for reviewing tribes‘ TAS applications for program authority
and updating the tribes on the review status. In commenting on a draft
of this report, EPA agreed with GAO‘s findings and emphasized its
commitment to addressing the issues raised in the report.
www.gao.gov/cgi-bin/getrpt?GAO-06-95.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact John B. Stephenson at
(202) 512-3841 or stephensonj@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
EPA's Approval Process for TAS and Program Authorization Was Generally
Followed, but Some TAS Approvals Were Delayed by Lengthy Reviews:
EPA Provides a Variety of Grants to Help Tribes Manage Their
Environmental Programs:
Differences between Tribes and States over Environmental Issues Have
Been Addressed in Various Ways:
Conclusion:
Recommendation for Executive Action:
Agency Comments:
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Tribal Entities and Dates Requests Were Submitted and
Approved for TAS, as of June 2005:
Appendix III: TAS Requests under Review, as of June 2005:
Appendix IV: Elapsed Time for EPA's Approval of Tribes' Water Quality
Standards for 18 Clean Water Act Cases Reviewed:
Appendix V: Comments from the Environmental Protection Agency:
Appendix VI: GAO Contact and Staff Acknowledgments:
Table:
Table 1: Grant Dollars Provided to Tribes under Four EPA Acts for
Fiscal Years 2002 through 2004:
Figures:
Figure 1: States Where Tribes Have Submitted and Been Approved for TAS
under the Three Environmental Acts, as of June 2005:
Figure 2: Review Times for the 32 Requests Approved for TAS, 1991-2005:
Figure 3: Review Time for TAS Requests under Review, 1994-June 2005:
Figure 4: Number of TAS Requests Submitted and under Review, 1992-June
2005:
Figure 5: Elapsed Time for EPA's Approval of Tribes' Water Quality
Standards for 18 Clean Water Act Cases Reviewed:
Letter October 31, 2005:
The Honorable James M. Inhofe:
Chairman, Committee on Environment and Public Works:
United States Senate:
The Honorable John McCain:
Chairman,
Committee on Indian Affairs:
United States Senate:
The Clean Water Act, Safe Drinking Water Act, and Clean Air Act
authorize the Environmental Protection Agency (EPA) to treat Indian
tribes in the same manner as it does states,[Footnote 1] referred to as
TAS,[Footnote 2] for the purposes of implementing these laws on tribal
lands. Recent lawsuits and disagreements between parties over EPA's
approval of tribes' TAS status and authority to implement and enforce a
given environmental program (program authority) highlight the
sensitivities associated with TAS approval. On the one hand, tribes
want to be treated as states and assume program responsibilities to
protect their environmental resources because they are sovereign
governments and have specific knowledge of their environmental
needs.[Footnote 3] Tribes also generally believe that TAS status and
program authority are important steps in addressing the potential
impacts of economic development affecting their land. On the other
hand, in some cases, states are concerned that tribes with program
authority may impose standards that are more stringent than the
state's, resulting in a patchwork of standards within the state and
potentially hindering the state's economic development plans. In
addition, conflicts sometimes arise between states and tribes over the
extent of tribal jurisdiction in cases where Indian lands are no longer
located within formal reservations or in cases in which nontribe
members live within reservation areas.
EPA's Indian policy, established in 1984, states, among other things,
that EPA "will take affirmative steps to encourage and assist tribes in
assuming regulatory and program management responsibilities—within the
constraints of its authority and resources." As such, EPA offers
several financial assistance programs to tribes.[Footnote 4] For
example, the Indian General Assistance Program, established under the
Indian Environmental General Assistance Program Act of 1992, supports
tribes' efforts to develop their capability to implement environmental
programs. In addition, grants under the Clean Water, Safe Drinking
Water, and Clean Air Acts help tribes to develop water quality
programs, create drinking water protection programs, and plan and
manage air quality activities. Some of these grants require TAS status,
others do not.
To be approved for TAS, which is a prerequisite for obtaining program
authority under the three environmental acts, a tribe must demonstrate
its eligibility by showing that it (1) is officially recognized by the
Secretary of the Interior, (2) has a governing body that is currently
carrying out substantial governmental duties and powers over a defined
area, (3) has jurisdiction over the land where the resources are
located,[Footnote 5] and (4) is capable of administering the program.
Once EPA receives a tribe's application for TAS, it has 30 days to
notify appropriate governmental entities of the tribe's request.
After EPA approves a tribe's TAS request, the tribe needs to obtain EPA
authorization to implement and enforce a given program. EPA generally
recommends that tribes adopt the standards of the adjacent states when
first setting tribal standards. However, EPA does not track the extent
to which tribes adopt adjacent state standards. Under its regulations
for implementing the Clean Water Act, EPA requires a tribe to hold a
public hearing so that interested parties can review and comment on the
tribe's proposed water quality standards before EPA approves
them.[Footnote 6] EPA's regulations under the Safe Drinking Water Act
require the agency to announce in the Federal Register that the tribe
has the authority to administer a program and allow 30 days to request
a public hearing. Under its regulations for implementing the Clean Air
Act's operating permits program,[Footnote 7] EPA must also announce its
approval for a tribe to administer a program in the Federal Register;
however, the notice is not subject to public comment.
There are 562 federally recognized tribes.[Footnote 8] Fifty-seven
tribal entities have requested TAS in order to obtain program authority
under at least one of the three acts, and some for multiple programs,
for a total of 61 requests.[Footnote 9] EPA has approved 32 of these
requests and is still reviewing 29. Thirty of the approved TAS requests
were to implement a clean water program, 1 was for a safe drinking
water program, and 1 was for a clean air program. For 26 of the 32
approved TAS requests, tribes have also received EPA approval of water
quality standards, or authorization to administer public water systems
or issue and enforce federal air permits.
You asked us to report on the (1) extent to which EPA has followed its
processes for reviewing and approving tribal requests for treatment as
a state and program authorization under the Clean Water, the Safe
Drinking Water, and the Clean Air Acts; (2) programs EPA uses to fund
tribal environmental activities and the amount of funding it has
provided to tribes between fiscal years 2002 and 2004; and (3) types of
disagreements that have occurred between parties over EPA's approval of
tribes' TAS status and program authorization and the methods that have
been used to address these disagreements.
To address these issues, we met with selected officials from EPA and
the Department of the Interior's Bureau of Indian Affairs in
Washington, D.C., and three EPA regions--in Region 6 (Dallas), Region 9
(San Francisco), and Region 10 (Seattle). We chose these regions
because they had the largest number of approvals for program authority-
-18 approvals under the Clean Water Act, and 1 each under the Safe
Drinking Water and Clean Air Acts. We reviewed a total of 20 case files
in detail in these three regions--accounting for 77 percent of all
approved tribal requests (20 of 26) for program authorization under the
three acts--to determine whether EPA had followed established TAS and
program authorization processes. Our case file review included, among
other things, an assessment of whether EPA met its requirements to
notify appropriate governmental entities of a tribe's request within 30
days of receipt.[Footnote 10] We also reviewed data provided by EPA on
another 12 TAS and/or program authority approvals, bringing the total
number of TAS approvals reviewed to 32. We focused primarily on the
Clean Water Act because most activity has occurred under the act.
However, we also reviewed EPA's process for reviewing and approving
tribal requests under the Safe Drinking Water and Clean Air Acts. In
addition, we met with state officials and representatives of Indian
tribes in Arizona, New Mexico, Oklahoma, and Washington. To address the
second objective, we analyzed EPA's Integrated Grants Management System
grants data for tribes that have received financial assistance for
environmental programs for fiscal years 2002 through 2004.[Footnote 11]
We assessed the reliability of EPA's grants data system and found it
sufficiently reliable for the purposes of our report. Finally, we
interviewed selected EPA, state, and tribal officials to discuss the
methods used to address issues associated with areas of possible
disagreements, such as jurisdictional boundaries, that interested
parties may raise. A more detailed description of our scope and
methodology is presented in appendix I. We performed our work between
November 2004 and October 2005, in accordance with generally accepted
government auditing standards.
Results in Brief:
EPA followed its 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.
Specifically, for these 20 cases, EPA verified that the tribe is
federally recognized, has authority within its tribal boundaries, and
is technically capable of carrying out the requested environmental
program. However, in 17 of the 20 cases, EPA did not notify affected
governmental entities within its established 30 day time frame of a
tribe's TAS request, but instead took about 5 months, on average.
Moreover, EPA has not established overall time frames for reviewing
requests, and for the 20 cases, 10 took more than 1 year for approval
and 2 took more than 4 years. Furthermore, the lack of transparency of
EPA's review process may hinder a tribe's understanding of the status
of its request and what actions, if any, may be needed. Multiple
reviews, a lack of emphasis within EPA about the timeliness of the TAS
review, and turnover in EPA and tribal staffs contributed to delays in
the approval process. EPA officials agreed that more could be done to
improve the timeliness of its review process and stated that several
complex issues, including evolving Indian case law and jurisdictional
issues, contributed to the length of some reviews. Delays in the
approval process may hinder a tribe's efforts to control its
environmental resources. Tribal officials in one state told us that
they have not submitted a TAS request because of EPA's lengthy review
process. EPA has recently begun working with its regions to update the
status of pending TAS requests and to address how best to expedite
reviews. To improve EPA's process for reviewing tribal requests for TAS
for program authorization, we are recommending that the Administrator
of EPA develop a written strategy with estimated time frames for
reviewing and approving tribal requests for TAS for program
authorization under the three acts and periodically provide status
reports to affected tribes.
For fiscal years 2002 through 2004, EPA provided Indian tribes about
$360 million in grants to fund a broad range of environmental
activities. Half of the funds were distributed through two specific
programs: (1) the Indian General Assistance Program to help tribes
build capacity to administer environmental programs, including
planning, developing, and establishing environmental protection
programs--approximately $114 million and (2) the Clean Water Act to
help tribes prevent, reduce, and eliminate water pollution--
approximately $66 million. In addition, EPA provided funds through a
variety of other programs, including the Safe Drinking Water Act, the
Clean Air Act, the Toxic Substances Control Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act. Nearly all
tribal requests for grants are reviewed and funded at the regional
level.
Since 1986, when Congress amended the first of the three environmental
laws to allow TAS status for tribes, a number of disagreements between
tribes, states, and municipalities have arisen, concerning land
boundaries, environmental standards, and other issues. The
disagreements have been addressed in various ways, including
litigation, collaborative efforts, and changes to federal laws. In
terms of litigation, for example, in City of Albuquerque v.
Browner,[Footnote 12] the city challenged EPA's approval of the Pueblo
of Isleta tribe's water quality standards, which are more stringent
than those of New Mexico, where the Pueblo of Isleta tribe is located,
but EPA's approval was upheld. In other situations, some tribes and
states have addressed issues more collaboratively. For example, the
Navajo Nation and the Arizona Department of Environmental Quality
entered into a cooperative agreement that, among other things,
recognizes the jurisdiction of the Navajo Nation's lands within its
reservation and establishes a plan to share the cost of pilot projects.
In some cases, EPA facilitates resolution of disagreements between
states and tribes during the review process. Regarding federal
legislation, a federal statute enacted in August 2005, requires Indian
tribes in Oklahoma to enter into a cooperative agreement with the state
before EPA can approve a tribe's TAS request.[Footnote 13] Currently,
the Pawnee Nation is the only Oklahoma tribe that has been awarded TAS
status to set its own water quality standards. In addition, EPA has
established a dispute resolution mechanism under the Clean Water Act to
address disagreements between tribes and states but no parties have yet
used this mechanism to address such disagreements.
We provided EPA with a draft of this report for its review and comment.
In commenting on the draft report, EPA agreed with our findings and
stated that it was currently engaged in addressing many of the issues
we raised. EPA also provided technical comments, which we have
incorporated into this report as appropriate. Appendix V contains the
full text of the agency's comments.
Background:
The Clean Water, Safe Drinking Water, and Clean Air Acts emphasize the
importance of state involvement in protecting the environment and
public health and allow EPA to authorize states to implement their own
programs in lieu of the federal program--referred to as program
authorization. From 1986 to 1990, Congress amended these three acts to
authorize EPA to treat Indian tribes in the same manner as states for
purposes of program authorization.
Under EPA's implementation of the Clean Water Act, a tribe may submit a
request to EPA for TAS status and then submit a request for approval of
its adopted water quality standards, or submit both the TAS request and
the water quality standards approval request at the same time. Section
518 of the Clean Water Act lists the eligibility criteria EPA will use
to approve TAS status and to authorize Indian tribes to administer
Clean Water Act programs.
In applying for TAS under the Clean Water Act, a tribe, among other
things, submits a descriptive statement that includes a map or legal
description of the area over which the tribe intends to assert
jurisdiction. For purposes of this discussion, Indian lands can be
separated into three general categories: (1) lands within the exterior
boundaries of a formal reservation, (2) tribal trust lands lying
outside formal reservation boundaries, and (3) individual allotments
lying outside reservation boundaries.[Footnote 14] EPA considers lands
within the boundaries of a formal reservation and tribal trust lands
lying outside of formal boundaries to be reservations for purposes of
section 518 of the Clean Water Act. For the third category--individual
allotments--EPA has not historically considered the Clean Water Act to
cover allotments outside of reservations.
EPA follows similar processes for TAS under the Clean Water, Safe
Drinking Water, and Clean Air Acts. EPA's approval process for tribal
requests for TAS begins in its regional offices, where officials verify
that the requests meet eligibility requirements. EPA also requires its
headquarters staff to review the first TAS request received and
approved in each region under the Clean Water and Safe Drinking Water
Acts[Footnote 15] and to review all other TAS requests, that appear to
be nationally significant because, for example, of new legal issues.
Where practical, regional and headquarters reviews are conducted
concurrently, according to EPA officials. Except for specific tasks,
such as the 30-day public comment period, EPA has not established time
frames or goals for the length of its review process.
In addition to relevant statutory and regulatory guidance, EPA may
refer to federal case law concerning Indian tribes when reviewing a
tribe's TAS request, which we refer to as Indian case law in this
report. For example, EPA uses Indian case law to determine whether a
tribe has the authority to regulate an activity on land owned by
nonmembers but located within a reservation. In particular, in 1981,
the Supreme Court held that, as a general rule, absent delegation by
federal statute or treaty, Indian tribes lack authority to regulate the
conduct of nonmembers on non-Indian land within reservation boundaries,
except when (1) nonmembers enter into a consensual relationship with
the tribe or (2) activities by nonmembers on lands within the
reservation threaten or have a direct effect on the political
integrity, economic security, or health or welfare of the tribe. This
ruling is known as the Montana test.[Footnote 16]
With respect to program authorization, EPA's review process is
generally the same for tribes and states. Specifically:
* For the Clean Water Act, EPA determines, for example, whether the (1)
water uses are consistent with the requirements of the act, (2) adopted
criteria protect the designated water uses, and (3) appropriate
technical and scientific data and analyses have been used. The Clean
Water Act allows states and tribes to establish water quality standards
that are more stringent than federal requirements.
* Under the Safe Drinking Water Act, EPA requires states and tribes to
demonstrate the capability to administer primary enforcement
responsibility in a number of key areas. Among other things, EPA
determines whether the state or tribe has (1) adopted drinking water
regulations that meet or exceed EPA's national primary drinking water
regulations; (2) adopted and is implementing adequate procedures for
enforcing its regulations, including demonstrating authority to assess
penalties for violations; and (3) adopted and can implement an adequate
plan to provide safe drinking water under emergency circumstances, such
as hurricanes and other natural disasters.
* Under the Clean Air Act, EPA can authorize states and tribes to issue
and enforce federal air permits. For this authority, the tribe must,
among other things, submit a legal opinion, stating that the laws of
the Indian tribe provide adequate authority to carry out all aspects of
the delegated program. EPA and the eligible tribe then sign a
Delegation of Authority Agreement, which specifies the provisions that
the tribe is authorized to implement on behalf of EPA. EPA is
responsible for announcing this delegation in the Federal Register.
Since 1988, 57 of the 562 federally recognized tribal entities in the
United States have submitted 61 requests seeking TAS for program
authority under the three acts;[Footnote 17] these entities are from 17
states. Of the 61 TAS requests, EPA has approved 32: 30 under the Clean
Water Act, 1 under the Safe Drinking Water Act, and 1 under the Clean
Air Act. The remainder are under review. Of the 32 approved TAS
requests, 26 have also been approved for program authority--24 for
Clean Water, 1 for Safe Drinking Water, and 1 for Clean Air.[Footnote
18] Figure 1 shows the states where tribes have submitted and been
approved for TAS status under the three environmental acts, the number
of TAS submittals, and the number of TAS approvals in each state.
Figure 1: States Where Tribes Have Submitted and Been Approved for TAS
under the Three Environmental Acts, as of June 2005:
[See PDF for image]
[End of figure]
EPA relies on grants as one of its primary ways to carry out its
mission of protecting human health and safeguarding the environment.
Each fiscal year, EPA awards approximately $4 billion in grants to
state and local governments, tribes, educational, nonprofit
organizations, and other entities for projects that range from
conducting environmental research to constructing wastewater treatment
facilities to developing regulatory programs. The funds are generally
based on formulas laid out under each law or regulation. To be eligible
for most EPA grant programs, a tribe must be federally
recognized.[Footnote 19] In addition, for some grant programs, such as
section 106--for the prevention, reduction, and elimination of water
pollution--under the Clean Water Act, a tribe must also have obtained
TAS status to be eligible. For other grants, such as section 105--to
develop and administer programs that prevent and control air pollution
or implement national air quality standards--under the Clean Air Act, a
tribe is not required to have TAS status, but TAS status has a
substantially lower matching contribution requirement (from 5 percent
with TAS status to 40 percent without). The grants' TAS criteria are
less demanding and thus the review process is less rigorous than the
review process for TAS for program authority. In addition, the grant
decision is based solely on EPA's expertise, and EPA does not generally
get public comments on whether the tribe has jurisdiction.[Footnote 20]
Approval for TAS for grant purposes does not qualify tribes for TAS for
program authority purposes; however, tribes may use their TAS grant
status to help demonstrate capability to administer a program when
applying for program authority TAS. Finally, for other grant programs,
such as the Indian General Assistance Program, no TAS requirement
exists.
Financial assistance for tribal environmental programs is funded under
EPA's State and Tribal Assistance Grants appropriation. The funds are
generally based on specific formulas laid out in law or regulation, and
regions that have the largest number of tribes receive the largest
proportion of grant awards and grant dollars. The five states receiving
the most tribal grants--Alaska, Arizona, California, New Mexico, and
Oklahoma--are located in EPA's Regions 6, 9, and 10. Of the 1,343
grants awarded to Indian tribes under the Clean Water, Safe Drinking
Water, Clean Air, and Indian General Assistance Program Acts between
fiscal years 2002 through 2004, about 99 percent were awarded by EPA's
regions.
Each grant program has its own request and award process and grant
opportunities are based on funding availability. As a result, a tribe
may receive a grant in one year and not in another. While funding of
tribal grants has remained relatively constant, according to EPA
officials, the agency's outreach to tribes and the growing awareness of
environmental issues among tribes, has led to steadily increasing
numbers of requests and grants being awarded.
EPA's Approval Process for TAS and Program Authorization Was Generally
Followed, but Some TAS Approvals Were Delayed by Lengthy Reviews:
For the 20 cases we examined in detail, EPA followed its processes for
approving tribal requests for TAS and for program authorization, except
for adhering to the 30-day time frame for notifying governmental
entities. However, for these 20 cases, as well as for another 12 tribal
requests for TAS that EPA approved,[Footnote 21] the TAS review process
was often lengthy.[Footnote 22] In addition to those 32 TAS approvals,
EPA is currently reviewing 29 TAS requests, 27 of which were submitted
more than a year ago. EPA officials agreed that more could be done to
improve the timeliness of the review process, and the agency has
recently begun working with its regions to determine the status of
outstanding requests and how best to expedite reviews. The officials
stated that evolving Indian case law and complexities associated with
some jurisdictional issues sometimes required them to spend more time
evaluating tribal TAS requests. Delays in the approval process may
hinder a tribe's efforts to control its environmental resources.
Furthermore, as we learned during our review, lengthy delays and a lack
of transparency in the review process may discourage tribes from even
submitting requests for TAS status. In terms of tribal requests for
approval of water quality standards, EPA approved most tribal requests
in less than 1 year but the agency generally did not meet its own
standard for approval within 60 days.
EPA Followed Its Procedures for Reviewing and Approving Tribal
Requests, except for Timely Notification to Affected Governmental
Entities:
According to our review of 20 approved cases in Regions 6, 9, and 10,
EPA generally followed its established processes for reviewing and
approving TAS requests. For example, EPA's files included the required
documentation to support its decision to approve a TAS request. First,
EPA always ensured that the tribe included a statement that the tribe
is recognized by the Secretary of the Interior.
Second, we found that EPA always ensured that tribes provided a
statement that their governing body is carrying out substantial
governmental duties and powers. To meet this requirement, tribes (1)
described the form of tribal government; (2) described the types of
governmental functions currently performed by the tribal governing
body; and (3) identified the source of the tribal government's
authority to carry out these governmental functions. Among other
things, tribes provided tribal constitutions, by-laws, and treaties to
demonstrate that they were carrying out substantial governmental duties
and powers.
Third, the cases we reviewed showed that EPA always ensured that the
tribe documented its jurisdiction. Specifically, the files showed that
EPA collected a map or legal description of the area over which the
tribe intended to regulate--surface water quality, drinking water, or
air quality; a statement by the tribe's legal counsel describing the
basis for the tribe's assertion of authority; and documentation
identifying the resources for which the tribe proposed to establish
environmental standards. Some cases indicated that EPA followed up with
a tribe when the request lacked adequate documentation to meet this
requirement.
Finally, EPA ensured that tribes submitted a narrative statement
describing their capability to administer the program to which they
were applying. For example, EPA ensured that tribes submitted a
description of:
* their previous management experience;
* existing environmental or public health programs administered by the
tribal governing body and copies of related tribal laws, policies, and
regulations;
* the entity that exercises the executive, legislative, and judicial
functions of the government;
* the existing, or proposed, agency that will assume primary
responsibility for the environmental standards; and:
* the staffs' technical and administrative capabilities for managing an
effective program, and a plan for how the tribe will acquire and fund
additional expertise.
Additionally, EPA is required to promptly notify the tribe when the
agency has received the TAS request. In three cases, EPA did not have
evidence showing that it had notified the tribe that it had received
the tribe's request. In these cases, an EPA regional official told us,
the agency may have telephoned the tribe to acknowledge receipt of the
tribe's request, and this information would not necessarily be
documented.
The only two time frames EPA has established require the agency to
provide (1) appropriate notice to affected governmental entities within
30 days of receipt of a tribe's request for TAS and (2) interested
parties with 30 days to comment on the tribe's request.[Footnote 23]
For the 20 cases we reviewed, EPA always provided affected governmental
entities and interested parties 30 days to comment. However, in 17 of
the 20 cases, EPA did not notify affected governmental entities within
its established 30-day time frame of a tribe's TAS request, but instead
took about 5 months, on average.[Footnote 24] EPA officials told us
that, in most cases, they worked with Indian tribes to develop their
TAS applications prior to the tribe's submission of its application.
However, they said that in some cases, applications were still not
complete when they were received, resulting in delays in providing
notification to governmental entities. EPA said it does not like to
notify affected governmental entities of a tribal request until EPA
agrees with the tribe that the application is complete.
EPA's Process for Approving TAS Requests Was Often Lengthy and Not
Guided by Clear Time Frames:
Figure 2 shows the review times for the 32 TAS requests approved from
1991 through June 2005. Appendix II provides additional details on the
32 tribal entities that were approved for TAS as of June 2005, the
dates that the requests were submitted, and the date EPA approved them.
Figure 2: Review Times for the 32 Requests Approved for TAS, 1991-2005:
[See PDF for image]
Note: Of the 32 cases, 30 were approved under the Clean Water Act, 1
under the Safe Drinking Water Act, and 1 under the Clean Air Act. Of
the 32 cases, 26 were approved for program authority.
[End of figure]
Review times for the 32 requests ranged from 3 months to nearly 7
years. As figure 2 shows, 19 of the TAS reviews took 1 year or more for
approval. Specifically, for the 20 cases we examined, 10 took more than
1 year for approval, with 2 taking more than 4 years. EPA regulations
require that the agency process TAS requests in a "timely" manner and
internal guidance issued in 1998 emphasizes the importance of an
efficient review process. However, EPA has never developed a written
strategy that clarifies what it means by timeliness, including
performance goals, and does not routinely track the time it takes to
complete its review of these requests.
Reviews for Pending TAS Requests Continue to Be Lengthy:
Figure 3 shows the 29 TAS requests under review as of June 2005 and the
time elapsed between the request and June 2005. As the figure shows,
the time required for reviewing these TAS requests is generally taking
1 or more years, with 24 of the TAS requests under review for more than
2 years; 2 of the 24 requests have been under review for over 10 years.
See appendix III for the details on the dates that requests were
submitted.
Figure 3: Review Time for TAS Requests under Review, 1994-June 2005:
[See PDF for image]
[End of figure]
The number of TAS requests awaiting EPA approval has increased along
with the average review time. Specifically, as of 1998, 12 requests
were under review, and by June 2005, this number had increased to 29.
In addition, the average review time for TAS requests approved as of
1998 was 12 months and the average review time for TAS requests
approved between 1998 and June 2005 was 28 months. The average review
time for the 29 TAS requests pending as of June 2005 was about 63
months (or over 5 years). Figure 4 shows the number of requests
submitted and the number that remained under review at the end of each
year, from 1992 through June 2005.
Figure 4: Number of TAS Requests Submitted and under Review, 1992-June
2005:
[See PDF for image]
Note: One TAS request was submitted in 1988. The total number of TAS
requests submitted for program authority between 1988 and June 2005 was
61.
[End of figure]
According to EPA officials, 15 of the 29 TAS requests currently
awaiting approval require some type of action on the part of the tribe,
such as providing additional documentation on the tribe's jurisdiction.
The other 14 requests are awaiting EPA action, such as analysis and
discussion with the tribe, consideration of comments received, and
final regional and headquarters review.
Several Factors Cited for Delays in the TAS Approval Process:
According to EPA officials, several factors contribute to lengthy TAS
reviews. First, both regional offices and headquarters often review the
requests. Regional offices have primary responsibility for reviewing
and approving TAS requests, but EPA headquarters may repeat the review
to ensure that the regional review fully addressed all legal
requirements. EPA's policy is for headquarters to review the first TAS
request received and approved in each region under the Clean Water and
Safe Drinking Water Acts[Footnote 25] and to review all other TAS
requests, that appear to be nationally significant because, for
example, of new legal issues. In this regard, officials cited evolving
Indian case law and complexities associated with some jurisdictional
issues as significant contributing factors to added review time. In
some cases, EPA officials explained, multiple reviews occur because,
for example, a tribe may assert jurisdiction over lands outside of its
recognized boundaries. These assertions have led to disagreements among
the states and tribes, contributing to delays in EPA's review process.
Moreover, EPA has never disapproved a tribe's TAS request. Rather than
disapprove a tribe's request, EPA continues working with the tribe
until it meets all the eligibility requirements, which could contribute
to delays. EPA officials explained that to the extent possible, it
conducts its regional and headquarters reviews concurrently.
Second, EPA did not emphasize timely review of TAS requests for some of
the 20 cases we reviewed. For example:
* In one case, 20 months after receiving a tribe's TAS request, EPA
asked for necessary information on the tribe's water bodies, water
uses, and land status. This information should have been included in
the original request and followed up on at the time. EPA provided a
variety of reasons for delays in this tribe's review, including a lack
of timely communication between the tribe and EPA. Based on the
problems experienced in this case, EPA's responsible regional office
reported that it has taken steps to increase its tribal outreach
activities.
* In another case, 23 months after receiving supportive comments from
governmental entities and over 1 year after regional counsel agreed
that the tribe met all the legal requirements, EPA continued to request
additional information regarding the tribe's jurisdiction. According to
EPA officials, the agency inadvertently misfiled part of the tribe's
application paperwork and was waiting for the tribe to provide a
replacement copy of the jurisdictional map so EPA could complete its
review.
* Finally, in one case under review for more than 4 years, the tribe
amended its request in response to public comments. However, EPA was
still requesting basic documentation that should have been included in
the original request--2 years into the process. Furthermore, more than
1 year before approving the tribe's TAS request, EPA determined that
the request raised no nationally significant issues and stated that the
tribal boundaries were clear. EPA officials agreed that there was a
delay, but stated that they were not requesting basic documentation,
such as the tribal constitution and codes, for the first time after the
case had been in review for 2 years. Rather, the region had misplaced
the original information provided by the tribe, and EPA was requesting
that the tribe provide replacement copies of important information.
In addition, according to EPA and tribal officials, some of the delays
during the review process occurred because of turnover in tribal or EPA
staffing. Specifically, we were told that some tribes have experienced
staff turnover in their environmental departments that affected their
capability to administer the environmental program. For example, in one
region, EPA officials cited tribal turnover as a cause for delay in 3
of the 10 requests under review. Furthermore, some tribal officials
said that changes in their leadership sometimes shift their priorities
away from following through with their TAS request. Finally, some EPA
regional offices have experienced staff turnover, which caused some
delay in reviewing requests because the new staff needed time to become
acquainted with the tribes and to establish a relationship. For
example, in one regional office, officials said that certain staff
positions--those that deal directly with tribes--have changed about
every 2 years. According to tribal officials, changes in both tribal
and EPA regional staff have made it difficult to keep the continuity
that the tribes believe they need to successfully administer a federal
environmental program.
According to EPA headquarters officials, in response to renewed
concerns from tribes and within EPA, the agency has held management-
level discussions with its regions to determine the status of
outstanding requests and to determine how best to address the growing
backlog. In October 2005, EPA headquarters officials stated that they
had completed discussions with its regions and was analyzing the
results to determine whether there are any systemic reasons for the
lengthy review times.
Delays and Lack of Transparency in the TAS Process Have Discouraged TAS
Requests in One State:
Some tribal officials told us that they have not submitted TAS requests
because the process has become so lengthy. These officials, who
represented five tribes in one western state, have observed the delays
that other tribes in the state have experienced. They questioned the
value of spending time and resources for such a lengthy process.
Moreover, tribes cannot always determine the status of a particular
request, the aspect of the review that may be delaying its approval, or
the length of time it will take EPA to complete its review. This lack
of transparency may hinder a tribe's understanding of what issues are
delaying EPA's approval and what actions, if any, may be needed to
address these issues. In one case, the regional office approved the
request and sent it to headquarters for concurrence. While the request
was in headquarters for about 2 years, regional officials told us they
could not determine the status of the request and could not provide the
tribe with adequate updates regarding their request. Tribal officials
said that, even when asked, EPA could not provide the tribe with a
comprehensive list of documents needed to complete the review. The
request was under review at the time we completed our work--6 years
after it was submitted.
Approvals for Program Authorization Often Do Not Meet Established Time
Frames:
As specified in the regulations for the Clean Water Act, a tribe must
provide appropriate notice to governmental entities and hold a public
hearing to discuss its proposed water quality standards. The standards
may change in response to hearing comments. Thirty days after the tribe
approves the proposed water quality standards, it must provide the
regional office with a transcript of the hearing, responses to
comments, the tribal-approved standards, and a certificate from a
responsible legal authority documenting that the water quality
standards have been adopted in accordance with tribal law. Following
approval of a tribe's TAS application, EPA's guidelines call for it to
approve a tribe's water quality standards within 60 days of the tribe's
official submission of its water quality standards.
For the 18 cases we reviewed under the Clean Water Act, EPA met its 60-
day requirement for approving water quality standards for 7 of the
submissions. However, it did not meet its requirement for the other 11
cases. Figure 5 shows the review times for the 18 tribes submitting
water quality standards from 1992 through June 2005. See appendix IV
for the details on the dates that tribes submitted their water quality
standards and EPA approved the standards.
Figure 5: Elapsed Time for EPA's Approval of Tribes' Water Quality
Standards for 18 Clean Water Act Cases Reviewed:
[See PDF for image]
[End of figure]
As figure 5 shows, 11 of the reviews for water quality standards took
60 days or more, with 4 taking 1 year or more for approval.
EPA Provides a Variety of Grants to Help Tribes Manage Their
Environmental Programs:
For fiscal years 2002 through 2004, EPA provided Indian tribes about
$360 million in grants for a broad range of environmental activities.
Of this total, 1,343 grants totaling approximately $253 million went to
461 Indian tribes under four major acts including the Indian General
Assistance Program--which helps tribes develop their capacity to
administer environmental programs--and three environmental acts--the
Clean Water, Safe Drinking Water, and Clean Air Acts--which help tribes
manage their environmental programs.[Footnote 26] Furthermore, during
these three fiscal years, EPA awarded an additional $106 million under
other statutory authorities, including the Toxic Substances Control
Act, the National Environmental Education Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act. Half of the
$360 million was distributed through two specific programs: (1) the
Indian General Assistance Program to help tribes to plan, develop, and
establish environmental protection programs--approximately $114 million
and (2) the Clean Water Act to help tribes prevent, reduce, and
eliminate water pollution--approximately $66 million.
Funds provided under the Clean Water, Safe Drinking Water, and Clean
Air Acts may be used for such things as research, construction, and the
development of regulatory programs. However, according to EPA
officials, only a small part of the grant funds are used by tribes to
apply for and develop regulatory programs under the various statutes.
Although some, but not all, grants require TAS status, the standards of
evidence EPA requires for TAS for grants are not as stringent as the
standards for TAS for program authority. For example, the TAS grant
decision is based on EPA's knowledge of the tribe and the tribe's area
of jurisdiction. These decisions do not require EPA to seek comment
from affected states and generally do not require a public comment
period.
Table 1 shows the amount of grant funding awarded under the Indian
General Assistance Program and the three environmental acts for fiscal
years 2002 through 2004.
Table 1: Grant Dollars Provided to Tribes under Four EPA Acts for
Fiscal Years 2002 through 2004:
Dollars in millions.
Statutory authority: Clean Water;
FY 2002 - 2004 grants: $65.8.
Statutory authority: Safe Drinking Water;
FY 2002 - 2004 grants: $42.8.
Statutory authority: Clean Air;
FY 2002 - 2004 grants: $26.3.
Statutory authority: Indian General Assistance Program;
FY 2002 - 2004 grants: $114.3.
Statutory authority: Multiple statutory authorities[A];
FY 2002 - 2004 grants: $3.7.
Total;
FY 2002 - 2004 grants: $252.9.
Source: GAO analysis of EPA's Integrated Grants Management System data.
[A] Of the $252.9 million in total grants for fiscal years 2002 through
2004, approximately $3.7 million was awarded under more than one
statutory authority. Although the multiple authorities included one of
the four acts shown above, these grants may also have included other
statutory authorities such as the Solid Waste Disposal Act or the
National Environmental Policy Act. EPA could not provide the specific
dollar amounts under each authority for these types of grants.
[End of table]
In general, tribes initially apply for funding under EPA's Indian
General Assistance Program before applying for funds under the agency's
environmental programs. The Indian General Assistance Program provides
financial assistance to help tribes build capacity in order to
administer their environmental programs. The Indian General Assistance
Program grant does not require a tribe to have TAS status. The duration
of these grants (up to 4 years) provides tribes with a stable funding
source, which is useful to tribes without tax revenues. The tribes have
used these grants to, for example, hire, train, and maintain their own
environmental experts, and to plan, develop, and establish
environmental protection programs.
Grants for some environmental programs, such as section 106 of the
Clean Water Act and section 1443 of the Safe Drinking Water
Act,[Footnote 27] have special provisions for TAS status. For example,
EPA requires that tribes receive TAS status for section 1443 grants,
while EPA regulations provide that tribes with TAS status contribute
less in matching funds for section 106 grants. The four TAS criteria
for grants are similar to those for program authority under the three
acts--specifically, a tribe must be federally recognized, have a
governing body carrying out substantial duties and powers, have
adequate jurisdiction, and have reasonable capabilities to carry out
the proposed activities. The primary difference between TAS for grants
and TAS for program authority is that EPA does not generally seek
public comments on tribal requests for grants. In addition, there is
generally no need to determine tribal regulatory jurisdiction for TAS
eligibility for grants.
To encourage tribes to apply for these funds, EPA provides fact sheets
about the various financial assistance programs, sends them grant
solicitations, and provides training to help them develop their grant
requests. Nearly all tribal requests are reviewed and funded at the
regional level.
Differences between Tribes and States over Environmental Issues Have
Been Addressed in Various Ways:
Since the three environmental acts were amended to allow tribes to
receive TAS status and to implement EPA programs, some tribes, states,
and municipalities have disagreed over tribal land boundaries and
environmental standards that may differ from state standards. However,
neither EPA nor any of the entities we contacted could identify the
number of disagreements that have arisen between tribes, states, and
municipalities over environmental issues.[Footnote 28] Generally, the
disagreements have been addressed through litigation, cooperative
agreements, or legislation.
In terms of litigation, for example:
* In City of Albuquerque v. Browner,[Footnote 29] the city challenged
EPA's approval of the Pueblo of Isleta's water quality standards, which
are more stringent than New Mexico's. The city asserted that EPA lacked
the authority under the Clean Water Act to either (1) approve tribal
water quality standards that are more stringent than required by the
statute or (2) require upstream users such as the city to comply with
the standards set by the Pueblo of Isleta, which is downstream from
Albuquerque. A federal appellate court upheld EPA's authority to
approve the Pueblo's standards. Among other things, the court noted
that EPA is authorized to require upstream dischargers to comply with
downstream standards.
* In Montana v. EPA,[Footnote 30] the state challenged EPA regulations
allowing tribes with TAS authority to issue water quality standards
applicable to all dischargers within a reservation, even those on land
owned by nonmembers of the tribe. Montana argued that the regulations
permit tribes to exercise authority over nonmembers that are broader
than the inherent tribal powers recognized by the Supreme Court as
necessary to self-governance. A federal appellate court held that EPA's
regulations properly delineated the scope of inherent tribal authority.
It noted that the Supreme Court had held that a tribe could regulate
the conduct of nonmembers when that conduct threatens or has some
direct effect on the political integrity, the economic security, or the
health or welfare of the tribe. EPA had found that pollution of tribal
water resources by nontribal members posed such serious and substantial
threats to tribal health and welfare that tribal regulation was
essential. In this case, the court held that EPA's regulations are a
valid application of inherent tribal authority over nonconsenting
nonmembers.
Some tribes and states have addressed issues more collaboratively. For
example:
* The Navajo Nation's Environmental Protection Administration and the
Arizona Department of Environmental Quality entered into a cooperative
agreement in which, among other things, the state recognizes the
jurisdiction of the Navajo Environmental Protection Administration over
all lands within the Navajo Reservation and does not assert authority
over those lands. In addition, Arizona and the Navajo Environmental
Protection Administration agreed to share in the cost of pilot
projects, including in-kind contributions and technical assistance. As
a result of this collaborative effort, the tribe and state have been
able to, among other things, share staff for training and assist one
another with permit violations. In one instance, the tribe and the
state investigated and found several areas of potential contamination
of illegal petroleum leaks and spills. EPA ordered the company to stop
its illegal actions and prepare an environmental cleanup plan.
* Many different parties, including tribal, federal, state, and local
environmental groups, collaborated in an air toxics study, begun in
1999, to help assess the impacts of hazardous air pollutants in the
Phoenix metropolitan area.[Footnote 31] The study, which is still
ongoing, will review the status of air toxics studies nationally and
identify potential approaches that may be useful in the Phoenix area.
In some cases, EPA facilitates a resolution of disagreements between
states and tribes during the review process. In these cases, EPA works
collaboratively with the tribe to facilitate a resolution. For example,
in one case, after discussing its application with EPA, a tribe amended
its TAS submission by clarifying that it was not seeking approval to
administer Clean Water Act programs on a portion of an adjacent river
where jurisdictional issues had been raised and stated that it would
continue its efforts to work cooperatively with the affected parties.
Legislatively, a statute enacted in August 2005 addressed some of the
jurisdictional concerns in Oklahoma over TAS for program
authority.[Footnote 32] Specifically, to be approved for TAS, the law
requires Indian tribes and the state to enter into a cooperative
agreement in which they agree to TAS status and develop a plan to
jointly administer program requirements. This agreement is subject to
the review and approval of EPA's Administrator after notice and an
opportunity for a public hearing. The only tribe in Oklahoma that
currently has TAS status for administering programs is the Pawnee
Nation.
According to EPA officials, tribes and states have not used the dispute
resolution mechanism EPA established under the Clean Water Act in 1987
to address disagreements over water quality standards.[Footnote 33]
Under this mechanism, EPA can attempt to resolve disputes when, for
example, (1) differing water quality standards have been adopted
pursuant to tribal and state law and approved by EPA; (2) a reasonable
effort to resolve the dispute without EPA involvement has been made;
and (3) a valid written request for dispute resolution has been
submitted by either the tribe or the state. We could not determine why
states and tribes have not used this mechanism to resolve
disagreements.
According to a U.S. Institute for Environmental Conflict Resolution
official, states and tribes have not used the Institute to resolve
disagreements over the Clean Water, Safe Drinking Water, or Clean Air
Acts. Congress established this institute in 1998 to help parties
resolve environmental, natural resource, and public lands
conflicts.[Footnote 34] The U.S. Institute serves as an impartial,
nonpartisan entity that provides professional expertise, services, and
resources to all parties to a dispute. The U.S. Institute helps parties
determine (1) whether collaborative problem solving is appropriate for
specific environmental conflicts, (2) how and when to negotiate, and
(3) whether a third-party facilitator or mediator may be helpful in
assisting parties in their efforts to reach consensus or to resolve
conflict. The U.S. Institute also established the Native Dispute
Resolution Network to provide an alternative for American Indians,
Alaska Natives, and Native Hawaiians facing environmental conflicts. In
commenting on a draft of this report, EPA advised us that they had
recently contacted the Institute for assistance in discussions between
tribal and state officials in Idaho on revising a lake management plan.
Conclusion:
We recognize that a tribe's initial request for TAS may not include all
required documentation and that EPA's analysis of critical components
of that request, such as the tribe's jurisdiction over its land, water,
and air, may take some time. However, EPA has generally not laid out a
written strategy, including an estimated time frame, for the TAS review
process. Such a written strategy would help better focus EPA's efforts
and provide greater transparency for the tribes, on the status of EPA's
review. We note that EPA has established time frames for completing
some of its TAS processes, such as those for seeking public comment. We
also note that, without a written strategy, the average approval time
for TAS requests has increased from 12 months in 1998 to over 2 years
as of June 2005. Moreover, in some cases, neither EPA regional
officials nor the tribe know the status of the tribe's TAS request.
Without time frames or transparency in the review process, Indian
tribes may be discouraged from even applying for TAS and program
authority.
Recommendation for Executive Action:
To better facilitate the timely review of tribal requests for TAS
status for program authorization and to increase the transparency of
the process to tribes, we recommend that the Administrator of EPA
develop a written strategy, including estimated time frames, for its
tribal request review process and for providing periodic updates to the
tribes on the status of their requests.
Agency Comments:
We provided EPA with a draft of this report for its review and comment.
In commenting on the draft report, EPA agreed with our findings and
emphasized their commitment to carefully considering these issues. EPA
also provided technical comments, which we have incorporated into this
report as appropriate. Appendix V contains the full text of the
agency's comments in a letter dated October 19, 2005.
We are sending copies of this report to appropriate congressional
committees; the Administrator, EPA; and other interested parties. In
addition, the report will be available at no charge on the GAO Web site
at [Hyperlink, http://www.gao.gov].
If you or your staff have any questions about this report, please
contact me at (202) 512-3841 or [Hyperlink, stephensonj@gao.gov].
Contact points for our Offices of Congressional Relations and Public
Affairs may be found on the last page of this report. GAO staff who
made major contributions to this report are listed in appendix VI.
Signed by:
John B. Stephenson:
Director, Natural Resources and Environment:
[End of section]
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
The Chairman of the Senate Committee on Environment and Public Works
and the Chairman of the Senate Committee on Indian Affairs asked us to
report on (1) the extent to which the Environmental Protection Agency
(EPA) has followed its processes for reviewing and approving tribal
requests for treatment in the same manner as a state (TAS) and program
authorization under the Clean Water, the Safe Drinking Water, and the
Clean Air Acts, (2) EPA's programs for funding tribes' environmental
programs and the amount of dollars provided to tribes in fiscal years
2002 through 2004, and (3) types of disagreements that have occurred
between parties over EPA's approval for granting tribes TAS status and
program authorization and the methods that have been used to address
these disagreements. Although our review focused primarily on the Clean
Water Act, we also reviewed EPA's process for reviewing and approving
tribal requests under the Safe Drinking Water and Clean Air Acts. In
addressing these issues, we collected information through case file
reviews and interviews.
To determine the extent to which EPA followed its processes for
reviewing and approving TAS and program authorization requests, we
reviewed EPA's statutory and regulatory authorities, and guidance.
Based upon this review, we developed a structured review guide for our
case file reviews--a total of 20 reviews. We selected EPA's regions 6
(Dallas), 9 (San Francisco), and 10 (Seattle) for our case file review
because, collectively, these regions had 77 percent of all approved
tribal requests for program authorization under the three acts (20 of
26). These regions also had the largest number of approvals for program
authority--18 approvals under the Clean Water Act, and 1 each under the
Safe Drinking Water and Clean Air Acts. We reviewed in detail EPA's TAS
and program authorization process under the Clean Water Act because
most activity has occurred under the act. We also reviewed EPA's
process for reviewing and approving tribal requests under the Safe
Drinking Water and Clean Air Acts.[Footnote 35] Furthermore, we
reviewed data provided by EPA on another 12 TAS and/or program
authority approvals, bringing the total number of TAS approvals to 32.
In reviewing the case files, we ensured that documentation existed to
fulfill the statutory and regulatory requirements, compared length of
reviews with statutory deadlines, and examined the cause of delays.
With EPA officials in headquarters and in regions 6, 9, and 10, we used
semistructured interviews to obtain their understanding of the TAS and
program authorization processes under the three environmental acts. EPA
also provided data on the 57 tribes that had applied for TAS status
and/or program authorization, and the dates of request and approval
(when applicable). We cross-checked this information with the case file
documents for the 20 cases we reviewed. We also conducted interviews
with selected officials from the Department of the Interior's Bureau of
Indian Affairs, affected states, and representatives of Indian tribes
in Arizona, New Mexico, Oklahoma, and Washington to discuss their
knowledge of, and concerns about, EPA's processes for reviewing and
approving tribal requests for TAS status and program authorization.
To examine EPA's programs for funding tribes, we obtained data from
EPA's Integrated Grants Management System, a computer database used by
the agency to manage and report on information about grants, to
determine the number of federally recognized Indian tribes receiving
funding for fiscal years 2002 through 2004.[Footnote 36] Specifically,
we analyzed information on the number of grants and the dollars awarded
under specific statutory authorities for cases where the recipient type
was listed as "Indian tribe." This recipient type only applies to
grants awarded to federally recognized tribes or intertribal consortia.
According to EPA officials familiar with the data, tribes that are not
federally recognized can receive grants, however, only federally
recognized tribes are categorized as "Indian tribes" in the data
element "recipient type." We assessed the reliability of EPA's
Integrated Grants Management System data by (1) performing electronic
testing of required data elements, (2) reviewing existing information
about the data, including past GAO reports and workpapers on the
system, and (3) interviewing agency officials knowledgeable about the
data. We determined that the data were sufficiently reliable for the
purposes of this report. In addition, we reviewed and documented the
various programs available to Indian tribes under the Indian
Environmental General Assistance Program Act of 1992 and the Clean
Water, Safe Drinking Water, and Clean Air Acts for fiscal years 2002
through 2004; and EPA's guidelines for providing funding to tribes
through these programs.
To examine the types of disagreements that have occurred between
parties over EPA's approval for granting tribes TAS status and program
authorization and the methods that have been used to address these
disagreements, we reviewed EPA's statutory and regulatory processes for
resolving disputes between different parties under the Clean Water Act.
Although the dispute resolution provision specified in the Clean Water
Act regulations has not been officially used, EPA staff provided us
with other examples of tribes and outside parties creating
collaborative agreements and resolving disputes. We also interviewed
selected EPA, state, and tribal officials. In addition, we interviewed
an official from the U.S. Institute for Environmental Conflict and
Resolution to gain an understanding of the entity's objectives, roles,
and responsibilities.
We performed our work between November 2004 and October 2005, in
accordance with generally accepted government auditing standards.
[End of section]
Appendix II: Tribal Entities and Dates Requests Were Submitted and
Approved for TAS, as of June 2005:
Cases GAO reviewed in detail (20):
Pueblo of Nambe (NM);
Date submitted[A]: 5/11/1995;
Date approved: 8/18/1995;
Time elapsed (months): 3.2.
Pueblo of Picuris (NM);
Date submitted[A]: 5/1/1995;
Date approved: 8/7/1995;
Time elapsed (months): 3.2.
Pueblo of Pojoaque (NM);
Date submitted[A]: 12/15/1995;
Date approved: 3/21/1996;
Time elapsed (months): 3.2.
Pueblo of Tesuque (NM);
Date submitted[A]: 1/8/1997;
Date approved: 4/29/1997;
Time elapsed (months): 3.7.
Navajo Nation (AZ)[B];
Date submitted[A]: 6/17/2004;
Date approved: 10/13/2004;
Time elapsed (months): 3.9.
Pueblo of Santa Clara (NM);
Date submitted[A]: 3/13/1995;
Date approved: 7/19/1995;
Time elapsed (months): 4.2.
Pueblo of San Juan (NM);
Date submitted[A]: 9/28/1992;
Date approved: 5/12/1993;
Time elapsed (months): 7.5.
Pueblo of Isleta (NM);
Date submitted[A]: 2/13/1992;
Date approved: 10/13/1992;
Time elapsed (months): 8.0.
Pueblo of Sandia (NM);
Date submitted[A]: 4/21/1992;
Date approved: 12/24/1992;
Time elapsed (months): 8.1.
Puyallup Tribe of Indians (WA);
Date submitted[A]: 6/24/1993;
Date approved: 5/25/1994;
Time elapsed (months): 11.0.
Confederated Tribes of the Chehalis Reservation (WA);
Date submitted[A]: 2/16/1994;
Date approved: 3/7/1995;
Time elapsed (months): 12.7.
Confederated Tribes of the Warm Springs Reservation (OR);
Date submitted[A]: 2/20/1998;
Date approved: 5/25/1999;
Time elapsed (months): 15.2.
White Mountain Apache Tribe (AZ);
Date submitted[A]: 8/2/1995;
Date approved: 2/3/1997;
Time elapsed (months): 18.0.
Confederated Tribes of Umatilla (OR);
Date submitted[A]: 10/20/1999;
Date approved: 4/30/2001;
Time elapsed (months): 18.3.
Kalispel Indian Community (WA);
Date submitted[A]: 11/17/2000;
Date approved: 11/4/2002;
Time elapsed (months): 23.6.
Pueblo of Acoma (NM);
Date submitted[A]: 12/15/1998;
Date approved: 4/17/2001;
Time elapsed (months): 28.1.
Hoopa Valley Tribe (CA);
Date submitted[A]: 5/21/1993;
Date approved: 5/17/1996;
Time elapsed (months): 35.9.
Navajo Nation (AZ)[C];
Date submitted[A]: 4/4/1988;
Date approved: 8/9/1991;
Time elapsed (months): 40.2.
Hualapai Indian Tribe (AZ);
Date submitted[A]: 3/1/2000;
Date approved: 7/22/2004;
Time elapsed (months): 52.7.
Spokane Tribe of Indians (WA);
Date submitted[A]: 12/11/1997;
Date approved: 7/23/2002;
Time elapsed (months): 55.4.
Other tribal entities receiving TAS approval GAO did not review in
detail (12):
Port Gamble S'Klallam (WA);
Date submitted[A]: 3/6/2003;
Date approved: 9/24/2003;
Time elapsed (months): 6.6.
Miccosukee Tribe (FL);
Date submitted[A]: 5/27/1994;
Date approved: 12/20/1994;
Time elapsed (months): 6.8.
Fond du Lac Band of Chippewa (MN);
Date submitted[A]: 6/14/1995;
Date approved: 5/16/1996;
Time elapsed (months): 11.1.
Seminole Tribe (FL);
Date submitted[A]: 5/19/1993;
Date approved: 6/1/1994;
Time elapsed (months): 12.4.
Mole Lake Band of the Lake Superior Tribe of Chippewa Indians, Sokaogon
Chippewa Community (WI);
Date submitted[A]: 8/13/1994;
Date approved: 9/29/1995;
Time elapsed (months): 13.5.
Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation (MT);
Date submitted[A]: 3/24/1994;
Date approved: 8/29/1996;
Time elapsed (months): 29.2.
Makah Indian Nation (WA);
Date submitted[A]: 6/27/2001;
Date approved: 12/23/2003;
Time elapsed (months): 29.9.
St. Regis Band of Mohawk Indians (NY);
Date submitted[A]: 2/1/2000;
Date approved: 10/16/2002;
Time elapsed (months): 32.5.
Tulalip Tribes (WA);
Date submitted[A]: 8/11/1993;
Date approved: 5/9/1996;
Time elapsed (months): 32.9.
Grand Portage Band of Chippewa (MN);
Date submitted[A]: 10/13/1993;
Date approved: 7/16/1996;
Time elapsed (months): 33.1.
Confederated Salish and Kootenai Tribes of the Flathead Reservation
(MT);
Date submitted[A]: 4/22/1992;
Date approved: 3/1/1995;
Time elapsed (months): 34.3.
Pawnee Nation (OK);
Date submitted[A]: 3/2/1998;
Date approved: 11/4/2004;
Time elapsed (months): 80.1.
Source: GAO analysis of EPA data.
Note: Of the 32 cases, 30 were approved under the Clean Water Act, 1
under the Safe Drinking Water Act, and 1 under the Clean Air Act.
[A] Our analysis uses the date the tribe's application was recorded as
received in EPA's official case file. According to EPA, that date may
not necessarily be the date the agency accepted the tribe's request as
complete. Even though, in most cases, EPA works with the tribe to
develop its application prior to submission, according to EPA, some
applications present complex legal issues that need to be discussed
before EPA will accept them.
[B] The Navajo Nation's TAS request was submitted under the Clean Air
Act.
[C] The Navajo Nation's TAS request was submitted for the public water
systems program under the Safe Drinking Water Act.
[End of table]
[End of section]
Appendix III: TAS Requests under Review, as of June 2005:
Tribal entities: Shoshone-Bannock (ID);
Date submitted[A]: 12/27/2004;
Time under review (months): 6.1.
Tribal entities: Blackfeet Tribe (MT);
Date submitted[A]: 10/6/2004;
Time under review (months): 8.8.
Tribal entities: Pyramid Lake Paiute (NV);
Date submitted[A]: 6/18/2004;
Time under review (months): 12.4.
Tribal entities: Big Pine Band of Owens Valley (CA);
Date submitted[A]: 6/1/2004;
Time under review (months): 13.0.
Tribal entities: Santee Sioux (NE);
Date submitted[A]: 4/4/2004;
Time under review (months): 14.9.
Tribal entities: Pueblo of Taos (NM);
Date submitted[A]: 6/10/2003;
Time under review (months): 24.7.
Tribal entities: Northern Cheyenne Tribe (MT);
Date submitted[A]: 4/29/2002;
Time under review (months): 38.0.
Tribal entities: Cocopah Tribe (AZ);
Date submitted[A]: 2/14/2002;
Time under review (months): 40.5.
Tribal entities: Ak Chin Indian Community of the Maricopa (Ak Chin)
Indian Reservation (AZ);
Date submitted[A]: 2/3/2002;
Time under review (months): 40.9.
Tribal entities: Navajo Nation (AZ)[B];
Date submitted[A]: 10/18/2001;
Time under review (months): 44.4.
Tribal entities: Yavapai-Prescott Nation (AZ);
Date submitted[A]: 1/23/2001;
Time under review (months): 53.2.
Tribal entities: Agua Caliente Band of Cahuilla Indians (CA);
Date submitted[A]: 1/7/2001;
Time under review (months): 53.8.
Tribal entities: Ute Mountain Ute (CO);
Date submitted[A]: 6/29/2000;
Time under review (months): 60.0.
Tribal entities: Hopi Tribe (AZ);
Date submitted[A]: 6/20/2000;
Time under review (months): 60.3.
Tribal entities: Paiute-Shoshone Indians of the Bishop Community (CA);
Date submitted[A]: 6/8/2000;
Time under review (months): 60.7.
Tribal entities: Red Cliff Band of Chippewa (WI);
Date submitted[A]: 3/8/2000;
Time under review (months): 63.7.
Tribal entities: Lac du Flambeau Band of Chippewa (WI);
Date submitted[A]: 11/22/1999;
Time under review (months): 67.3.
Tribal entities: Navajo Nation (AZ);
Date submitted[A]: 11/22/1999;
Time under review (months): 67.3.
Tribal entities: Assiniboine-Sioux of Ft. Peck Indian Reservation (MT);
Date submitted[A]: 7/27/1999;
Time under review (months): 71.1.
Tribal entities: Salt River Pima-Maricopa Indian Community (AZ);
Date submitted[A]: 6/24/1999;
Time under review (months): 72.2.
Tribal entities: Coeur D'Alene Tribe (ID)[C];
Date submitted[A]: 3/18/1999;
Time under review (months): 75.4.
Tribal entities: Mille Lacs Band of Chippewa (MN);
Date submitted[A]: 12/30/1997;
Time under review (months): 90.0.
Tribal entities: Leech Lake Band of Chippewa (MN);
Date submitted[A]: 11/15/1997;
Time under review (months): 91.5.
Tribal entities: Bois Forte Band of Chippewa (MN);
Date submitted[A]: 7/18/1997;
Time under review (months): 95.4.
Tribal entities: Three Affiliated Tribes of the Fort Berthold
Reservation (ND);
Date submitted[A]: 12/30/1996;
Time under review (months): 102.0.
Tribal entities: Red Lake Band of Chippewa (MN);
Date submitted[A]: 11/7/1995;
Time under review (months): 115.8.
Tribal entities: Keweenaw Bay Indian Community (MI);
Date submitted[A]: 8/10/1995;
Time under review (months): 118.7.
Tribal entities: Lummi Tribe (WA);
Date submitted[A]: 3/8/1995;
Time under review (months): 123.7.
Tribal entities: Confederated Tribes and Bands of the Yakama Indian
Nation (WA);
Date submitted[A]: 11/4/1994;
Time under review (months): 127.9.
Source: GAO analysis of EPA data.
[A] Our analysis uses the date the tribe's application was recorded as
received in EPA's official case file. According to EPA, that date may
not necessarily be the date the agency accepted the tribe's request as
complete. Even though, in most cases, EPA works with the tribe to
develop its application prior to submission, according to EPA, some
applications present complex legal issues that need to be discussed
before EPA will accept them.
[B] The Navajo Nation's TAS request was submitted for the underground
injection control program under the Safe Drinking Water Act.
[C] According to EPA, the Coeur D'Alene tribe was approved for TAS in
August 2005.
[End of table]
[End of section]
Appendix IV: Elapsed Time for EPA's Approval of Tribes' Water Quality
Standards for 18 Clean Water Act Cases Reviewed:
Tribal entities: Pueblo of Picuris (NM);
Date submitted: 8/7/1995;
Date approved: 8/7/1995;
Elapsed time (days)[A]: 0.0.
Tribal entities: Pueblo of Pojoaque (NM);
Date submitted: 3/21/1996;
Date approved: 3/21/1996;
Elapsed time (days)[A]: 0.0.
Tribal entities: Pueblo of Nambe (NM);
Date submitted: 8/18/1995;
Date approved: 8/18/1995;
Elapsed time (days)[A]: 0.0.
Tribal entities: Pueblo of Santa Clara (NM);
Date submitted: 7/19/1995;
Date approved: 7/19/1995;
Elapsed time (days)[A]: 0.0.
Tribal entities: Pueblo of Acoma (NM);
Date submitted: 4/17/2001;
Date approved: 4/17/2001;
Elapsed time (days)[A]: 0.0.
Tribal entities: Pueblo of Tesuque (NM);
Date submitted: 4/29/1997;
Date approved: 4/29/1997;
Elapsed time (days)[A]: 0.0.
Tribal entities: Hualapai Indian Tribe (AZ);
Date submitted: 7/22/2004;
Date approved: 9/12/2004;
Elapsed time (days)[A]: 50.0.
Tribal entities: Puyallup Tribe of Indians (WA);
Date submitted: 8/22/1994;
Date approved: 10/31/1994;
Elapsed time (days)[A]: 69.0.
Tribal entities: Pueblo of Isleta (NM);
Date submitted: 10/13/1992;
Date approved: 12/24/1992;
Elapsed time (days)[A]: 71.0.
Tribal entities: Pueblo of San Juan (NM);
Date submitted: 5/12/1993;
Date approved: 9/16/1993;
Elapsed time (days)[A]: 124.0.
Tribal entities: Confederated Tribes of Umatilla (OR);
Date submitted: 4/30/2001;
Date approved: 10/18/2001;
Elapsed time (days)[A]: 168.0.
Tribal entities: Pueblo of Sandia (NM);
Date submitted: 12/24/1992;
Date approved: 8/10/1993;
Elapsed time (days)[A]: 226.0.
Tribal entities: Spokane Tribe of Indians (WA);
Date submitted: 7/23/2002;
Date approved: 4/22/2003;
Elapsed time (days)[A]: 269.0.
Tribal entities: Confederated Tribes of the Chehalis Reservation (WA);
Date submitted: 3/11/1996;
Date approved: 2/3/1997;
Elapsed time (days)[A]: 322.0.
Tribal entities: Kalispel Indian Community (WA);
Date submitted: 3/24/2003;
Date approved: 6/24/2004;
Elapsed time (days)[A]: 450.0.
Tribal entities: White Mountain Apache Tribe (AZ);
Date submitted: 3/27/2000;
Date approved: 9/27/2001;
Elapsed time (days)[A]: 540.0.
Tribal entities: Hoopa Valley Tribe (CA);
Date submitted: 7/10/2000;
Date approved: 9/11/2002;
Elapsed time (days)[A]: 781.0.
Tribal entities: Confederated Tribes of the Warm Springs Reservation
(OR);
Date submitted: 5/25/1999;
Date approved: 9/28/2001;
Elapsed time (days)[A]: 843.0.
Source: GAO analysis of EPA data.
[A] TAS approval is a prerequisite for obtaining program authority to
set water quality standards. The date submitted reflects a tribe's TAS
approval date or the date the tribe submitted its water quality
standards following TAS approval. Thus, in those cases where the tribe
submitted its water quality standards after receiving TAS approval, the
elapsed time calculation is based on the date the water quality
standards were submitted.
[End of table]
[End of section]
Appendix V: Comments from the Environmental Protection Agency:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:
OFFICE OF WATER:
WASHINGTON, D.C. 20460:
Mr. John B. Stephenson, Director:
Natural Resources and Environment:
U.S. Government Accountability Office:
Washington, DC 20548:
Dear Mr. Stephenson:
Thank you for the opportunity to comment on your October 2005 draft
report, "EPA Should Reduce the Review Time for Tribal Requests to
Manage Environmental Programs." Our support to Tribes, as we implement
the Agency's Indian Policy, is very important to us.
Your report is coming at a good time, since we are currently engaged in
addressing many of the same issues. We are firmly committed to
reviewing Tribal requests in a timely fashion. We are equally committed
to assuring that the reviews are correctly done and adequately
documented. The issues we and Tribes face are complex. EPA has
committed to Tribes to carefully consider these issues, particularly in
light of the Federal trust responsibility to Tribes.
I would call your attention to the sections of the report dealing with
grants. The aggregate grant figures cited include a wide variety of
grants. The reader needs to be cautioned that only a part of the grant
funds are used by Tribes to apply for and develop regulatory programs
under the various statutes.
EPA staff members have provided you detailed technical comments on this
draft. I look forward to seeing the final report.
Sincerely,
Signed by:
Benjamin H. Grumbles:
Assistant Administrator:
[End of section]
Appendix VI: GAO Contact and Staff Acknowledgments:
GAO Contact:
John B. Stephenson, (202) 512-3841, [Hyperlink, stephensonj@gao.gov]:
Staff Acknowledgments:
In addition to the individual named above, Ronald E. Maxon, Jr.,
Assistant Director; Tyra DiPalma-Vigil; Chad Factor; Doreen Feldman;
Richard Johnson; Crystal Jones; Jeff Malcolm; Rebecca Shea; and Carol
Herrnstadt Shulman made key contributions to this report.
(360531):
FOOTNOTES
[1] Under these laws, EPA may authorize states to establish their own
standards and carry out a state program in lieu of the federal program.
State standards must meet or exceed federal requirements.
[2] The acts generally use the term "treat as states." EPA and most
Indian tribes prefer to use the term "treatment in the same manner as a
state."
[3] As sovereign governments, Indian tribes have inherent authority to
establish tribal environmental programs under their own laws. However,
to administer federal environmental programs on their land, tribes must
obtain approval from EPA.
[4] EPA also provides financial assistance to other entities such as
state and local governments, educational institutions, and not-for-
profit organizations.
[5] The specific language pertaining to jurisdiction under the Clean
Water Act states that "the functions to be exercised by the Indian
tribe pertain to the management and protection of water resources which
are held by an Indian tribe—or otherwise within the borders of an
Indian reservation." 33 U.S.C. § 1377(e)(2). The specific language
pertaining to jurisdiction under the Safe Drinking Water Act states
that "the functions to be exercised by the Indian Tribe are within the
area of the Tribal government's jurisdiction." 42 U.S.C. § 300j-
11(b)(1)(B). The specific language pertaining to jurisdiction under the
Clean Air Act states that "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." 42 U.S.C. §7601(d)(2)(B).
[6] The regulations discussed in this paragraph also apply to states.
[7] For the purposes of our report, we only looked at TAS requests for
Part 71--operating permits under the Clean Air Act. Indian tribes have
also been approved for treatment as an affected state under title V of
the Clean Air Act, which allows them to review and comment on permits
issued by neighboring states to facilities having the potential to
impact tribal lands.
[8] 68 Fed. Reg. 68180 (Dec. 5, 2003).
[9] Tribal entities may include tribes as well as bands or Indian
communities within a tribe. For example, the Chippewa tribe in
Minnesota includes the Grand Portage Band, the Fond du Lac Band, the
Bois Forte Band, the Mille Lacs Band, the Leech Lake Band, and the
White Earth Band. For purposes of this report, we refer to these
entities as tribes. The tribes referred to in these analyses are tribes
that have submitted TAS applications for program authority. The
analyses do not include tribes that have requested TAS status to secure
certain grants.
[10] See 40 C.F.R. §131.8 for the Clean Water Act and 40 C.F.R. §49.9
for the Clean Air Act.
[11] We obtained the data from EPA's Integrated Grants Management
System, a computer database used by the agency to manage and report on
information about grants.
[12] 97 F.3d 415 (10TH Cir. 1996), cert. denied, 522 U.S. 965 (1997).
[13] Pub. L. No. 109-59, § 10211 (2005).
[14] Allotments are parcels of land held in trust by the United States
for the benefit of individual Indians.
[15] According to EPA officials, the agency has no similar requirement
for TAS applications under the Clean Air Act, although they are
reviewed in headquarters for national significance.
[16] Montana v. United States, 450 U.S. 544 (1981). Other Supreme Court
cases concerning tribal authority include Brendale v. Confederated
Tribes and Bands of the Yakima Nation, 492 U.S. 408 (1989), Nevada v.
Hicks, 533 U.S. 353 (2001), and Atkinson Trading Company, Inc. v.
Shirley, 532 U.S. 645 (2001).
[17] Of the 57 tribal entities, 1 has submitted applications under two
of the acts (Clean Water and Safe Drinking Water) and 1 has submitted
four applications under the three acts.
[18] Technically, the term "program authorization" does not apply to
the water quality standards program under the Clean Water Act; rather
EPA approves the tribe's water quality standards. However, for the
purposes of our report, we are using the term to represent program
authority under the three acts.
[19] Specifically, grants under the Clean Water, Safe Drinking Water,
Clean Air, and Indian Environmental General Assistance Program Acts
require federal recognition. Tribes that are not federally recognized
may receive grants through other programs.
[20] Specifically, EPA does not obtain public comments on grants under
the Clean Water or Safe Drinking Water Acts. However, for TAS
determinations under the Clean Air Act, EPA seeks comments from
appropriate governmental entities on the tribe's reservation boundaries
or jurisdictional claims.
[21] Our analysis of these 12 requests, which we did not review in
detail, is based on EPA-provided data.
[22] According to EPA, 6 of these 12 TAS requests have been approved
for program authorization.
[23] Although EPA has established a 30-day comment period, the agency
has extended this time period when requested.
[24] Under its regulations implementing the Safe Drinking Water Act,
EPA is not specifically required to obtain comments from governmental
entities concerning a tribe's jurisdiction on its TAS request. Thus,
EPA did not have to meet the 30-day requirement on the one approved
application under the Safe Drinking Water Act.
[25] According to EPA officials, the agency has no similar requirement
for TAS applications under the Clean Air Act, although they are
reviewed in headquarters for national significance.
[26] Under these four acts, our analysis includes grants where EPA has
designated the recipient type as an Indian tribe in the agency's
Integrated Grants Management System database. Other recipient types
include state and local governments, educational institutions, and not-
for-profit organizations. EPA also awards grants under other acts,
including the Toxic Substances Control Act and the Federal Insecticide,
Fungicide, and Rodenticide Act. EPA's administrative requirements for
environmental program grants for Indian tribes, and the environmental
programs covered, are set out at 40 C.F.R. Part 35, Subpart B.
[27] Grants awarded under section 1443 of the Safe Drinking Water Act
help tribes to carry out public water system programs, including
implementation and enforcement of the act.
[28] EPA provided some examples of cases where the agency facilitated
discussions and cooperative agreements between tribes and states in
which water quality standards were involved.
[29] 97 F.3d 415 (10TH Cir. 1996), cert. denied, 522 U.S. 965 (1997).
[30] 137 F.3d 1135 (9TH Cir.), cert. denied, 525 U.S. 921 (1998).
[31] Currently, the State of Arizona Department of Environmental
Quality, Maricopa County, Pinal County, the Gila River Indian
Community, the Ft. McDowell Yavapai Nation, the Salt River Pima-
Maricopa Indian Community, the U.S. Institute for Tribal Environmental
Professionals at Northern Arizona University, and the EPA are working
together to complete the Joint Air Toxics Assessment Project.
[32] Pub. L. No. 109-59, § 10211 (2005).
[33] This mechanism is not available to cities and other governmental
entities.
[34] The Environmental Policy and Conflict Resolution Act of 1988 (Pub.
L. No. 105-156) created the U.S. Institute for Environmental Conflict
Resolution to assist parties in resolving environmental disputes that
involve federal agencies or instrumentalities.
[35] For the purposes of our report, we only looked at TAS requests for
Part 71--operating permits under the Clean Air Act. Among other things,
Indian tribes have also been approved for treatment as an affected
state under title V of the Clean Air Act, which allows them to review
and comment on permits issued by neighboring states to facilities
having the potential to impact tribal lands.
[36] The data were obtained from EPA's Office of Grants and Debarment,
which among other things, compiles grant information for the agency.
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