TAS Regulatory Requirements - Swinomish perspective

Steps in Clean Air Act TAS Application

Step 1 – Submit an Application. The major work for a tribe in this process. Developing an application with technical assist from EPA. More on this below

Step 2 – EPA reviews

Step 3 – Comment Period.

- Tribe reviews comments and may respond.

- Swinomish TAS – the only comments were:

-Washington Department of Ecology – supported in general, neutral on boundary and asked EPA to work with Tribe to” assure compatibility with State regulation.” No need for Tribal reply.

-Several comments essentially, “Tribe has no right to regulate me” without any particular legal theory or specific facts.

- Any reason to respond to such comments? Generally no – unless specific legal points to address or for PR reasons.

Step 4 – EPA makes TAS Eligibility Decision and Notifies Tribe.

TAS Application

1)Federal Recognition - Concise Statement

-“SITC is a Federally-recognized Indian tribe and appears on the most current list of Federally-recognized Indian tribes.” See [cite Fed Reg. List].

2)Substantial government duties and powers.

  1. Form of government – describe as set out in Tribal Constitution and by-laws
  1. Types of functions – outline various functions, esp. related to Health and Welfare, and police powers.
  1. Source of authority – Treaty and Tribal Constitution or similar.

3)Description of tribe’s authority to regulate air quality.

  1. Boundaries – this can be a key issue. EPA will not uphold where there is controversy or uncertainty. Many tribes have a disputed boundary or claims on lands outside their federally recognized exterior boundaries. May need to describe federally recognized boundary and / or regulatory boundary and differentiate from other claimed areas.
  1. Swinomish – “all land and waters within federally recognized regulatory boundaries.” Describes in detail including as in Treaty and areas where some dispute but federally accepted. To extreme low water (of tidelands), to middle of Swinomish Channel (except the oxbow), and later acquired McGlinn Island. See Reservation Map. Describes diminishment by US Grant Executive Order, which Tribe believes was not legal. Application does not claim this broader Boundary for purposes of the TAS.
  1. “The boundaries described in this section are for regulatory purposes only. The Tribe reserves the right to argue outside the context of this TAS application that the actual reservation boundaries extend farther than those described herein.”
  1. Basis for Tribes Authority (Tribal Attorney)
  1. Congressional Delegation under CAA 1990, section 301 and fed cases upholding -- Arizona Pub. Serv. Co. v. EPA, 211F.3rd 1280 (DC Circ. 2000) and Michigan v. EPA, 532 US 970 (2001).
  1. Inherent Authority as a sovereign to regulate environmental matters including air quality. Treaty and court cases.

Worcester v. Georgia (1832) – “Indian nations had always been considered as distinct independent political communities, retaining their original natural rights…from time immemorial”

4)Show capable of administering Clean Air Act (or portion tribe is seeking).

  1. Air Program staff describe their resources, expertise and capacity.
  1. Where Regional Administrator can request info – just put it in up-front.
  2. Previous management experience
  3. Environmental programs administered now
  4. Related codes, policies and regulations
  5. Description of executive, legislative and judicial entities
  6. Description of agency / Department to administer CAA
  7. Resumes and position descriptions