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, FEB-28-1995 00:36 KOGOUSEK 8. ASSOCIFlTES 3m 831 11388 P.0'7 . i_I~94 Page 8 Water Quality and the Environment EP A Eases Rules for Tribes to Obtain Recognition to Exercise Environmental Regulation In December, the U.S. Environmental Protection Agency (EPA) issued new regulations intended to make it easier for tribes to obtain agency approval.to exercise environmental regulations. Under the Clean Water Act (CWA), the Safe Drinlcina Water Act (SDWA), and the Clean Air Act (CM) tribes may exercise the same regulatory authority as states if they meet certain criteria. Tribes must be federally recognized, possess a governing body carrying out substantial duties and powers, and possess civil regulatory jurisdiction to carry out the functions they seek to exercise. Until the new regulations were issued, EP A implemc;:t::d these provisions through a fOrnlal prequalification process usually referred to as approval for "treatment as a state" (TAS). EPA concluded that this process proved "to be burdensome, time consuming, and offensive to tribes." The new regulations eliminate the "r AS" review as a separate step in the recognition process. Instead, EP A will ensure compliance with statUtory requirements as an integral part of the process of reviewing program approval applicatiollS. The term "treatment as a state" will be discontinued. to the extent possible. Requirements under all three environmental acts with respect to determining "recognition" of the tribe and establishing its "governmental" competence will be made identicaL EP A will no longer be required to consult with the Department of the Interior on questions of tribal jurisdiction. And EP A will establish more flexible requirements through which tribes establish their capability to administer programs. The procedures through which EP A recognizes tribal jurisdiction over environmental standards received a challenge in court by the City of Albuquerque. Albuquerque's wastewater treatment facility discharaes into the Rio Grande about five miles upstream from the Pueblo ofIsleta. Although the city's facility held a discharge permit from EPA, in 1992 the agency granted the Pueblo "TAS" status and, in 1993, accepted the Pueblo's water quality standards, even though those standards were much stricter for some pollutants than the standards adopted by the state of New Mexico. The City of Albuquerque sued EPA, claiming the agency had followed inappropriate procedures. and applied inadequate dispute resolution standards in accepting Isleta' s standards. But in October 1993, New Mexico federal district court upheld EP A's procedures. In January 1994, however, the 10th Circuit Court of Appeals agreed to review the decision. In June 1994, the city accepted an offer by the Pueblo, the Statt of New Mexico, and EPA for a four-year permit requiring the city spend $60 million for ammonia removal and denitrification - less than the city estimates it would cost to comply fully with the Pueblo's standards. This appeared to moot the City's appeal. But EPA objected to vacating the appeal, wanting a decision to uphold their procedures so that they may be applied in other instances in the future. Meanwhile, a decision in an unrelated case (Bonner \I. BankCorp) by the U.S. Supreme Court argued that it is improper to enter into a settlement while appeals are in process. The Court of Appeals has. therefore, refused so far to vacate its review. The City still hopes the appeal will be vacated. WATER. INTEu.IGENCE MONTHLY Publblwl by StratCCOD, IDC. P.O. Boz'6J, CIa,...... tAnnl ('Of) 611-4193 TOTFlL P.11l7