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:
- 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.
- 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:
- delegate authority to the Division to act on behalf of the Tribe in exercising the Tribe’s Clean Water Act section 401 certification authority;
- establish an application process through the Division that requires the applicant to reimburse the Tribe for the costs of application review;
- 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;
- set forth the factors that will be considered in reviewing applications (e.g., compliance with water quality standards);
- describe the decision-making process and the possible decisions (e.g., grant, grant with conditions, deny, or waive);
- list the general requirements that will apply to all of the Tribe’s Clean Water Act section 401 certifications; and
- 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
▪ E-mail: firstname.lastname@example.org
▪ 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.