Summary of the Proposed Water Quality Standards for Surface Waters on the Southern Ute Indian Reservation and Clean Water Act Section 401 Certification Procedures

On March 28, 2018, the U.S. Environmental Protection Agency approved the Southern Ute Indian Tribe’s application to be treated in a similar manner as a state for purposes of the Clean Water Act’s water quality standards and section 401 water quality certification programs. At the direction and with the support of the Southern Ute Indian Tribal Council, the Environmental Programs Division (“Division”) has developed water quality standards and Clean Water Act section 401 water quality certification procedures for tribal waters. What follows is a summary of the Division’s proposed water quality standards and Clean Water Act section 401 certification procedures.

Proposed Water Quality Standards
Water quality standards form a legal basis for controlling pollutants entering tribal waters. Water quality standards describe the desired condition of a water body and the means by which that condition will be protected or achieved. Water bodies can be used for purposes such as recreation (e.g. swimming, fishing, boating), protection of aquatic life, agricultural, public water supply, industrial, navigation, and other purposes.

The Division has developed proposed water quality standards to protect public health and welfare, enhance the quality of water, and serve the purposes of the Clean Water Act. To ensure that the standards are approvable by EPA, the Division has included the elements required under the Clean Water Act and EPA’s implementing regulations: (1) designated uses for tribal waters, (2) numeric and narrative water quality criteria designed to protect each designated use, (3) antidegradation policies and procedures to ensure attainment and maintenance of the designated uses, and (4) general policies to protect water quality.

The proposed water quality standards serve the primary functions of (1) establishing water quality goals for water bodies on the Southern Ute Indian Reservation over which the Tribe has authority to set water quality standards and (2) providing the legal basis for regulatory pollution controls. Establishing criteria and designated uses that protect aquatic and wildlife species, recreational use, potable water, and agricultural uses is also an important objective of these standards. More specifically, the standards should serve, and will be implemented to achieve, these purposes:

1. Assessment. Provide a point of reference for the assessment of surface water quality.
   The standards represent the water quality goals of the Tribe for surface waters and will be
   used in assessing potential impacts to that quality.
2.  Regulatory Controls. Both point and nonpoint source regulatory pollution controls to be established by the Tribe or the United States will be developed to ensure a level of water quality that will satisfy the water quality standards. Regulatory pollution controls established for point source discharges will also be consistent with applicable sections of the Clean Water Act. Tribal programs to control nonpoint sources, whether regulatory or voluntary, will be designed to meet the water quality standards.

Protection of Aquatic and Wildlife Species. The Tribe intends that the designated uses and criteria assigned to tribal waters will provide a level of water quality fully protective of aquatic and wildlife species dependent on it, including threatened or endangered species listed under the Endangered Species Act.

Clean Water Act Section 401 Certification Procedures

Under Clean Water Act section 401, a federal agency cannot issue a permit or license for an activity that may cause a discharge to waters of the United States until the state or tribe where the discharge would originate has granted or waived Clean Water Act section 401 certification. With this authority, the Tribe can deny, certify, waive, or condition permits or licenses based in part on the proposed project’s compliance with the Tribe’s EPA-approved water quality standards. Clean Water Act section 401 certification authority, therefore, is an important tool for protecting water quality, although it is limited in scope and application to situations involving federally permitted or licensed activities that may cause a discharge to a water of the United States.

The Tribe’s proposed 401 water quality certification procedures:

1. delegate authority to the Division to act on behalf of the Tribe in exercising the Tribe’s Clean Water Act section 401 certification authority;
2. establish an application process through the Division that requires the applicant to reimburse the Tribe for the costs of application review;
3. establish a process for applications to be reviewed both internally within the tribal organization (through a proposed project notification process) and through a public review and comment process;
4. set forth the factors that will be considered in reviewing applications (e.g., compliance with water quality standards);
5. describe the decision-making process and the possible decisions (e.g., grant, grant with conditions, deny, or waive);
6. list the general requirements that will apply to all of the Tribe’s Clean Water Act section 401 certifications; and
7. provide for judicial review in the Tribal Court of any Clean Water Act section 401 certification decisions by the Environmental Programs Division.

Notice and Request for Tribal Member Comments

Comments will be accepted until October 30, 2020. You may submit comments related to the water quality standards or 401 certification procedures through the Tribal Member Portal or any of the
following methods:

▪ E-mail: wqs@southernute-nsn.gov

▪ Mail: Water Quality Standards Committee, Environmental Programs Division, Southern Ute Indian
Tribe, P.O. Box 737 #81, 71 Mike Frost Way, Ignacio, Colorado 81137.

▪ Phone: (970) 563-4705; select the 7901 option to comment on the water quality standards and 401 certification procedures.

All comments received will be reviewed and the Division will provide a response to all comments. Once completed, the proposed water quality standards and 401 certification procedures will be available for an additional general public review for a 45-day period.

If you have any questions, please call Alexandra Ratcliff at 970-563-2256 or Jeff Seebach at 970-563-2272.

Outreach Flyer

FOR MORE INFORMATION CONTACT

Christine Sage, Chairman – 970.563.0100

FOR IMMEDIATE RELEASE: June 4, 2020 – 9:00 A.M.

Federal Agencies Narrow Scope of Federally Protected “Waters of the United States” But Tribe Intends to Protect Tribal Waters

Southern Ute Indian Reservation – Notwithstanding the Tribe’s strong opposition, on January 23, 2020, the Environmental Protection Agency and the U.S. Army Corps of Engineers (collectively the “Agencies”), the agencies responsible for administering the Clean Water Act, finalized a rule to define “waters of the United States” (“Final Rule”). Under the Clean Water Act, there is federal authority to regulate the discharge of pollutants and the placement of fill into “navigable waters.” The Clean Water Act defines “navigable waters” to mean “the waters of the United States.” Whether a particular water body is jurisdictional as a “water of the United States” is a threshold question for determining whether a discharge into that water will require a permit under the Clean Water Act or whether a spill (i.e., an unpermitted discharge) is a violation of the Clean Water Act and subject to an enforcement action by the Agencies. In other words, under the Clean Water Act, the scope of federal regulatory authority is limited to “waters of the United States.”

The Final Rule substantially narrows the scope of waterbodies subject to federal regulation under the Clean Water Act – notably excluding ephemeral features (those that flow only in response to precipitation events) that are prevalent throughout the southwestern United States and on the Southern Ute Indian Reservation. The Final Rule also excludes non-adjacent wetlands, groundwater, and many farm and roadside ditches.

For proposed development and work in or near excluded waterbodies on the Reservation, the Final Rule will reduce developers’ federal permitting obligations. In the event of a spill into previously protected but now excluded waterbodies on the Reservation, the Final Rule will reduce owner and operators’ spill reporting obligations and the risk of a federal enforcement action. The Final Rule will also remove some development from the applicability of EPA’s oil spill prevention program and the obligation to prepare a spill prevention, control and countermeasure plan. In other words, the Final Rule leaves water resources on the Southern Ute Indian Reservation less protected.

The Final Rule becomes effective on June 22, 2020.

In response to the Final Rule, the Southern Ute Indian Tribe intends to protect excluded waterbodies on tribal trust land through the exercise of the Tribe’s regulatory authority (e.g., water quality standards) and contracting authority (e.g., land use and environmental protection stipulations in grants of rights-of-way and leases). In the event of a spill into previously protected but now excluded waterbodies on the Reservation, the Final Rule will reduce owner and operators’ spill reporting obligations and the risk of a federal enforcement action and, correspondingly, potentially reduce the owner and operators’ remediation responsibilities. For excluded waters on private property within the Reservation, the Tribe intends to carefully monitor activities impacting or that have the potential to impact those waterbodies. If an activity harms an excluded waterbody on private property and threatens to harm or results in harm to excluded waterbodies on tribal land, the Tribe will consider taking appropriate action to protect water quality. If the State of Colorado plans to implement a state-only program, such as a Clean Water Act Section 404 program, the Tribe plans to ensure that the statutes authorizing such a program and the regulations include language recognizing the limitations on the State’s authority on the Reservation. Finally, the Tribe expects all companies working on the Reservation, regardless of the current regulatory environment on a federal level, to use best management practices and to implement all appropriate measures to prevent adverse impacts to the Reservation’s water resources.

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20200604 – Federal Agencies Narrow Scope of Federally Protected “Waters of the United States” But Tribe Intends to Protect Tribal Waters

FOR MORE INFORMATION CONTACT

Christine Sage, Chairman – 970.563.0100

FOR IMMEDIATE RELEASE: May 8, 2020

SOUTHERN UTE RESERVATION INITIATES STAGE I FIRE RESTRICTIONS

Ignacio, CO – Due to the current high temperatures, dry fuel conditions and occurrence of recent wildland fires, Stage 1 fire restrictions have been implemented for all trust lands throughout the Southern Ute Indian Reservation. Everyone on reservation lands is asked to be very cautious and use common sense with fire this time of year.

Stage I Fire Restrictions prohibits acts for the general public, commercial operators and industrial oil and gas operators performing work on the Southern Ute Indian Reservation.

STAGE I

General Public:

Prohibited acts:

1. OPEN BURNING. Burning of trash and/or yard waste is prohibited.

2. AGRICULTURAL BURNING. Burning of crop land, fields, rangeland, debris burning, slash piles, prescribed burning and weed burning are prohibited.

3. CAMP FIRES. Building, maintaining or using a warming fire or campfire outside of officially designated or developed camp sites is prohibited.  The fire restrictions do not include charcoal fires (in suitable containers) for barbeques or fires for sweat ceremonies, however, such fires are not to be left unattended and are to be fully extinguished after use.

4. Possession, discharging or use of any type or fireworks is prohibited.

Commercial and Industrial restrictions can be obtained from the BIA Fire Office at 575 County Road 517 or by calling (970) 563-4571.

Anyone violating the provisions of this fire ban may be subject to prosecution outlined in the Southern Ute Indian Criminal Code.

The Restrictions will become effective at 06:00 A.M., Monday, May 11, 2020 and will remain in effect until conditions improve.

To report fires contact:

DURANGO ZONE DISPATCH (970) 385-1324

For more info or to report Fire Restriction Violations contact:

BIA FIRE MANAGEMENT (970) 563-4571 OR SOUTHERN UTE POLICE DEPARTMENT (970) 563-4401

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20200508 – Southern Ute Indian Reservation Initiates Stage I Fire Restrictions

The Southern Ute Tribal Court has updated their operating functions for the modified services they are currently providing to address Tribal Court matters. The Court’s Administrative Order and Public Notice have been approved by the Southern Ute Indian Tribe’s Incident Management Team (IMT).

The new hours and operations are set to begin Monday, May 11, 2020.

For questions related to the modification of tribal operations, tribal members are encouraged to call the Southern Ute COVID-19 Call Center at 970.563.0214. The Call Center hours of operation are Monday through Friday from 8:00 a.m. until 5:00 p.m.

Administrative Order COVID May 2020

Notice to Public Tribal Court 05072020

In accordance the “Stay at Home” orders and travel restrictions issued by the Southern Ute Tribe, the SOUTHERN UTE DRUM will not be available in printed form until further notice.

The DRUM will be available on-line at:  www.SUDRUM.com

SOCIAL GATHERINGS PROTOCOL

A COVID-19 outbreak could last for a long time. Depending on the severity of the outbreak, public health officials have recommended community action designed to limit exposure to COVID-19. The Southern Ute Incident Management Team is ordering postponement or cancellation of large events with more than 250 people within the boundaries of the Southern Ute Reservation. This is for the safety and well-being of your event staff, participants, and the community.

Social distancing measures are taken to restrict when and where people can gather to stop or slow the spread of infectious diseases. Social distancing measures include limiting large groups of people coming together, closing buildings and canceling events. Recommendations have been made by the CDC, to avoid sporting events, community festivals/gatherings, and concerts at this time. Recommendations to change your daily habits such as shopping off peak hours are encouraged along with taking advantage of delivery or pick up services with retailers.