3.12.100 Water Quality Review Procedures for Discharges That Originate Off-Reservation (Federal Permits/Licenses)

The Tribe shall evaluate requests for Tribal Water Quality Review under CWA Section 401(a) (2) regarding proposed federal licenses or permits pertaining to discharges originating Off- Reservation that may affect Reservation Waters pursuant to the following procedures:

(a) Notification. The EPA, USACE, and other federal agencies shall notify the WRP if a permit or license is requested, including coverage under a General Permit, for a discharge that originates Off-Reservation and may affect the quality of Reservation Waters.

(b) Monitoring. To the best of the WRP's ability given resource and time constraints, the WRP shall monitor proposed federal permits or licenses relating to discharges that originate Off-Reservation and may affect Reservation Waters. If the WRP learns of such proposed permits, licenses, or such discharges, the WRP shall contact the EPA and the permitting or licensing agency to indicate the potential effect on Reservation Waters and therefore that the requirements of this Code and CWA Section 401(a)(2) must be met.

(c) Completeness Determination. Upon receipt of notification from a federal agency or otherwise becoming aware of a potential discharge that originates Off-Reservation that may affect Reservation Waters, the WRP shall evaluate the completeness and accuracy of the available information regarding the proposed discharge. If any information needed to evaluate the potential impact of the proposed discharge on Reservation Waters is not available to the WRP, it may request that information from EPA, the federal permitting or licensing agency, or the applicant.

(d) Water Quality Review, Recommendation, and Decision. The WRP shall conduct a Water Quality Review to analyze whether the proposed Off-Reservation discharge will result in a violation or violations of the Tribe's WQS or may adversely affect the quality of Reservation Waters, and will provide a recommendation to the Director regarding how to respond to the application and the basis for that recommendation. The Director will then make one of two decisions:

(1) To notify EPA and the permitting or licensing agency that the Tribe does not object to the issuance of the permit or license; or

(2) To notify EPA and the permitting or licensing agency of the Tribe's objection to the issuance of the permit or license for the Off-Reservation discharge and the basis for such objection. The objection will be in writing and will include a request for a public hearing on the matter.

In accordance with CWA Section 401(a)(2), the Director's decision regarding whether a proposed Off-Reservation discharge will affect Reservation waters in a manner that will violate the Tribe's WQS shall be made and communicated to the EPA and the permitting or licensing agency within sixty (60) days of receipt of notification of the proposed Off-Reservation discharge.

(e) Communication Regarding Objection. In the event that the Director communicates an objection to the EPA, the Director or the WRP shall appear at any public hearing held related to the objectionable permit or license and shall provide such written or verbal information as they determine necessary or advisable to protect Reservation Waters.