June 4, 2019  -  WA HHC Proposal to Withdraw
Tribal Informational Call #1

Tribal Attendees: 
Snoqualmie
CRITFC
Colville
Skokomish
Puyallup
Tulalip
Squaxin Island
Nez Perce
Quileute
Nisqually
Umatilla
Yakama
NWIFC
Stillaguamish
Lower Elwha Klallam
Shoalwater Bay Indian Tribe
Nooksack
Samish Indian Nation

EPA Attendees: Dan Opalski, Angela Chung, Erica Fleisig, Matt Szelag, Wenona Wilson, Hanh Shaw

Questions and Comments from Tribal Attendees

 Clarification: Chris Hladick the Regional Administrator is not present on the call?
 Similar to the last round of calls, will EPA take notes for the administrative record? 
 Will the call be recorded in any way?
 Will the notes be part of the administrative record? The previous question was specifically about the administrative record.
 EPA letter asked for a response by this Friday. You expect a decision/response within a few days of the call? The quick turnaround is not consistent with protocol.
 Was there a proposed rule or FR notice prior to the May 10 reversal of the disapproval?
 You did not have any consultations with tribes prior to the reversal decision?
 I am confused about the words "further consultation;" if no consultations occur, how can it be further consultation?
 You are saying you used old consultation to apply it to a new decision?
 The thing that is odd is basically there is a 2-year period after the initial decision, then the reversal was made. Is there a timeline where decisions are cemented? You are saying that at any time, EPA can reverse a decision based on a petition?
 In your letter to Washington, you noted the basis as EPA's inherent authority to reverse a decision. Is that in the Clean Water Act or guidance somewhere?
 The statement regarding error in judgement....part of the previous rationale was to protect tribal consumption. Is EPA is now saying that was an error?
 Page 25 of the May 10 TSD states treaties do not limit EPA from otherwise taking a lawful action under the CWA...not that there isn't tension between CWA and treaties, but that doesn't make it unlawful. Is that how EPA interprets the interaction? If new protective standard conflicts with treaties then it would require something in CWA to override treaties?
 If EPA does not believe this impacts treaties, then why are you doing consultations? This seems to be a conflict about the relevance of treaties.
 Because decision makers in DC knew tribes wouldn't like the decision; that is why you didn't consult the last time on the reversal?
 Are there briefing memos and other documents that can be shared so we understand what went into the discussion regarding tribal perspectives? Seems like there may have been a mis-step if the region misrepresented tribal interests. Are the materials shareable?
 Is it now EPA's position that the disproportionate impacts to tribes are ok? Tribal consumers exercising their rights will now bear the burden because we eat more fish; this supersedes treaty rights?
 This is our cultural way of life.
 Where is the decision to withdraw made at EPA? Who at EPA HQ will be made available for the government-to-government? Will anyone from OGC be involved in the government-to-government?
 We have approved standards and TAS; where we have shared boundary waters with the state, how would that work where two different standards exist (what standards have to be met)?
 They have to meet downstream standard? 
 From the state's comment, they want to keep the federal standards. Would that open a new rulemaking process?
 Is there a possibility that the federal withdrawal process would stop and the criteria would not be withdrawn?
 We are putting together recommendations to leadership on how to respond; there is a need for a detailed technical meeting to support our recommendations; we will not be able to respond by June 7. We have to do more work before it can be briefed up to leadership.
 I can't help but feel we are going through a façade of a consultation; this does not meet the intent or legal requirements of consultations; we are being hurried through a process that is not meaningful. Using old consultations is a disregard for treaties and tribes. 
 Will you be transmitting our input upstairs?
 Echo what was said about the timing and the rushed nature; EPA's letter gave us a day to organize for the call and less than a month to inform leadership. It's difficult when the onus is put on tribes to point out where we EPA is not following its own policy.
 May 10 technical support document  -  section on treaty rights  -  action in 2016 went beyond the 2000 methodology (didn't address treaty reserved rights). Is there an update underway to the methodology to address treaty rights?
 Regarding tribes as the target population, was there any discussion of the culverts case which harmonized the CWA and treaty rights (U.S. government implementing federal laws)?
 The link to the May 10 decision does not work in the consultation invitation letter.
 How will today's conversation be taken into consideration on the proposed rule?
 Would we have the chance to review the record of this informational meeting that is being sent to DC on our behalf? Would it be possible to share the notes from the previous calls?

