Appendix B

Decision Document:

Approval of Fort Peck Tribes

Application for Program Approval

Under Section 303(c) of the Clean Water Act

U.S. EPA Region 8

August 29, 1996

	TABLE OF CONTENTS

I.	Introduction

A.	Purpose

B.	Application

C.	Chronology of events

II.	Requirements for Program Approval

A.  Federal recognition

B.  Substantial governmental duties and powers

C.  Jurisdiction over "waters within the borders" of the Fort Peck
Reservation

D.  Capability

III.	Conclusions 

IV.	Appendix.  Factual Analysis of Finding:  Direct Effects on Ft. Peck
Tribal Health and Welfare that are Serious and Substantial may Result
from Surface Water Pollution Sources on Non-Indian Owned Fee Lands

I.	Introduction

A.	Purpose:  The purpose of this decision document is to provide the
basis and supporting information for EPA's decision to approve the March
24, 1994 application of the Fort Peck Tribes (Tribes) to administer
Section 303(c) (water quality standards program) of the Clean Water Act
(CWA).  The approval applies to the administration of the water quality
standards program for waters that lie within the exterior borders of the
Fort Peck Reservation.

B. 	Application:  The Tribes' Application to administer Section 303(c)
of the CWA consists of two documents:

1)	the Tribe's initial request for program approval, dated March 24,
1994; and

2)	the Tribe's supplemental letter of April 12, 1995. 

C.	Chronology of Events	

1.	March 24, 1994 - CWA § 303(c) water quality standards program
application by the Fort Peck Tribes.

2.	October 14, 1994 - Letter from Deb Madison, Fort Peck Tribes, to Bill
Wuerthele, EPA Region VIII Water Quality Branch, providing a map of the
reservation and a copy of the Tribes' nonpoint source assessment
document.

3.	January 30, 1995 - Letter from Dale Vodehnal, EPA Region VIII, Water
Quality Branch Chief, to Caleb Shields, Chairman, Fort Peck Executive
Board, providing an update on the Region's review of the Tribe's CWA §
303(c) program application.

4.	April 3, 1995. - Letter from Dale Vodehnal, EPA Region VIII, Water
Quality Branch Chief, to Caleb Shields, Chairman, Fort Peck Executive
Board, requesting clarification of the Tribes' request with respect to
the assertion of authority for border rivers and creeks.

5.	April 12, 1995 - Letter from Caleb Shields, Chairman, Fort Peck
Executive Board, to Dale Vodehnal, EPA Region VIII, Water Quality Branch
Chief, clarifying the Tribes' application with respect to the assertion
of authority for border rivers and creeks.

6.	May 9, 1995 - Letters to "appropriate governmental entities" from
William  Yellowtail, Regional Administrator, EPA Region VIII, requesting
comments on the Fort Peck Tribes assertion of authority:

a.	Honorable Marc Racicot, Governor of Montana

b.	William Berg, Charles Russell National Wildlife Refuge, U.S. Fish and
Wildlife Service

c.	Richard Whitesell, U.S. Bureau of Indian Affairs

d.	John Morton, U.S. Army Corps of Engineers

e.	Dale Harms, Montana-Wyoming Field Office, U.S. Fish and Wildlife
Service

7.	May 21, 24, and 26, 1995.  Publication of Notice for Fort Peck
Tribes' CWA § 303(c) program application (The Billings Gazette, State
of Montana, County of Yellowstone).

8.	June 7, 1995.  Letter from Martin Kellar, Operations Division, U.S.
Army Corps of Engineers, to David Moon, U.S. EPA Region VIII, Water
Quality Branch, requesting an additional 20 days to review the Fort Peck
Tribes assertion of authority (the request was granted via a phone
call).

9.	June 16, 1995, Letter from Robert J. Robinson, Director, Montana
Department of Health and Environmental Sciences, to William Yellowtail,
Regional Administrator, EPA Region VIII, providing comments on the Fort
Peck Tribes' assertion of authority, and including as enclosures, a June
1, 1995 letter from Claudia Massman, DHES Counsel, to Bill Engle, Region
VIII Montana Operations Office, and a December 19, 1990 letter from
Harley R. Harris, Montana Assistant Attorney General, to Stanley
Speakes, Portland Area Director, Bureau of Indian Affairs.

10.	June 19, 1995.  Letter from Keith Beantusk, Area Director, U.S.
Bureau of Indian Affairs, to David Moon, U.S. EPA Region VIII, Water
Quality Branch, endorsing the Fort Peck Tribes' water quality standards
program application.

11.	June 26, 1995.  Letter from Mary E. Dills, U.S. Army Corps of
Engineers, to William Yellowtail, Regional Administrator, EPA Region
VIII, supporting the Fort Peck Tribes' water quality standards program
application. 

12.	June 19, 1996.  Letter from Bill Engle, EPA Region VIII Montana
Operations Office, to Steve Pilcher, Director, Montana Water Quality
Control Division, providing information pertaining to the Fort Peck
Tribes' application.

II.	Requirements for Program Approval:    Under Section 518(e) of the
CWA and EPA's implementing regulation at 40 CFR Section 131.8 four
requirements must be satisfied before EPA can approve a tribe's
application to administer a water quality standards program under
Section 303(c).  These are:  (1) The Indian Tribe is recognized by the
Secretary of the Interior and meets the definitions in Section 131.3(l);
(2) The Indian Tribe has a governing body carrying out substantial
governmental duties and powers;  (3) The water quality standards program
to be administered by the Indian Tribe pertains to the management and
protection of water resources which are within the borders of the Indian
reservation and held by the Indian Tribe, within the borders of the
Indian reservation and held by the United States in trust for Indians,
within the border of the Indian reservation and held by a member of the
Indian Tribe if such property interest is subject to a trust restriction
on alienation, or otherwise within the borders of the Indian
reservation; and (4) The Indian Tribe is reasonably expected to be
capable, in the Regional Administrator's judgment, of carrying out the
functions of an effective water quality standards program in a manner
consistent with the terms and purposes of the Act and applicable
regulations.

A.  Federal Recognition:  The Fort Peck Tribes of the Fort Peck
Reservation are recognized by the U.S. Department of the Interior (58
Fed. Reg. 54364, October 21, 1993).

B.  Substantial Governmental Duties and Powers:  Analysis under 40 CFR
Section 131.8(a)(2).  The Agency is satisfied that the Fort Peck Tribes
of the Fort Peck Reservation have a tribal government currently carrying
out substantial governmental duties and powers over a defined area and
that the Tribes have met the requirements imposed by 40 CFR Section
131.8(a)(2) for treatment as a state under Section 303 of the CWA. 

On December 14, 1994, EPA published a final regulation that simplified
the process by which Indian Tribes may qualify for treatment in the same
manner as States for purposes of various environmental programs under
the Clean Water Act, Clean Air Act, and Safe Drinking Water Act programs
(see 59 Fed. Reg. 64339).  One of the changes was that, if a Tribe has
been previously determined by EPA under the Clean Water Act, Clean Air
Act, or Safe Drinking Water Act to meet the "federal recognition" and
"substantial duties and powers" requirements, these requirements do not
have to be evaluated for any subsequent program applications.  The Fort
Peck Tribes have previously been determined by EPA to meet these
requirements. 

C.  Jurisdiction over "waters within the borders" of the Fort Peck
Reservation:  Analysis under 40 C.F.R. Section 131.8(a)(3).

The Agency is satisfied that the Fort Peck Tribes (Tribes) of the Fort
Peck Reservation have adequate jurisdiction to set water quality
standards for waters within the exterior boundaries of the Reservation
and have adequately demonstrated that they meet the requirements imposed
by 40 C.F.R. Section 131.8(a)(3) for program approval under Section
303(c) of the CWA (CWA).  

Background:  40 C.F.R. Section 131.8(a)(3) requires that "the water
quality standards program to be administered by the Indian Tribe
pertains to the management and protection of water resources which
are...within the borders of the Indian reservation."  The program for
which the Tribes are applying pertains to the management and protection
of water resources which are within the borders of the Fort Peck
Reservation, and this approval is limited to waters within the borders
of the Reservation.

It should be noted that EPA is not today determining the scope of the
Tribes' regulatory enforcement authority for all purposes.  EPA is today
finding that the Tribes have sufficient authority to determine the water
quality standards for the Reservation.  While the Tribes may, in an
independent action, enforce tribal water quality standards, an EPA
approved water quality standards program need not be implemented through
enforcement in tribal court.  For example, EPA may issue federal permits
under Section 402 of the CWA, based upon tribal water quality standards.
 Such permits would then be enforced in federal court.

The Tribes' assertion of civil regulatory jurisdiction within the Fort
Peck Reservation is contained in two documents: (1)  the Tribe's initial
request for program approval, dated March 24, 1994, and (2) the Tribe's
supplemental letter of April 12, 1995. 

These documents were forwarded to the State of Montana, the U.S. Fish
and Wildlife Service (USFWS), the U.S. Army Corps of Engineers (COE),
and the Bureau of Indian Affairs (BIA) for comment on the Tribes'
jurisdictional assertions, pursuant to 40 C.F.R. Section 131.8(c)(2). 
These entities responded on June 7 and June 26, 1995 (COE), June 16,
1995 (Montana), and June 19, 1995 (BIA).

The Montana Operations Office of EPA Region 8 also published, on three
separate occasions, a local newspaper notice of the Tribes' application,
inviting the public to submit comments through the State of Montana.  No
public comments were forwarded to EPA by the State or included as
attachments to the State's letter of June 16, 1995.

Tribal Jurisdiction:	Having reviewed the jurisdictional assertions of
the Tribes and the comments received from other Federal Agencies and the
State of Montana, the Agency has determined that the Tribes have
demonstrated adequate jurisdiction to establish water quality standards
within the exterior boundaries of the Fort Peck Reservation. 

Tribal authority over Reservation lands other than fee lands owned by
non-tribal members.  With regard to Reservation lands other than fee
lands owned by non-tribal members, the Agency finds that the Fort Peck
Tribes clearly have adequate jurisdiction to establish water quality
standards.  Indeed, the State of Montana only contests the Tribes'
assertion of authority over lands owned in fee by non-tribal members.

Tribal authority over Reservation lands owned in fee by non-tribal
members.

Standard:  In the preamble to the amendments to the Water Quality
Standards Regulation, published on December 12, 1991 at 56 Fed. Reg.
64876, the Agency set forth its analysis of the scope of inherent tribal
authority over reservation lands owned in fee by non-members.  In that
discussion, the Agency considered relevant case law, including Montana
v. United States, 450 U.S. 544 (1981) and Brendale v. Confederated
Tribes and Bands of the Yakima Nation, 492 U.S. 408 (1989), and elected
to adopt an "interim operating rule" (56 Fed. Reg. at 64878-79) for
determining, on a case by case basis, whether an Indian Tribe has
authority over reservation lands owned in fee by non-members (fee
lands).  

The operating rule is based on the finding in Montana that "a tribe may
also retain inherent power to exercise civil authority over the conduct
of non-Indians on fee lands within its reservation when that conduct
threatens or has some direct effect on the political integrity, the
economic security, or the health or welfare of the tribe."  Montana, 450
U.S. at 565-66.  The operating rule requires a further showing that the
"potential impacts of regulated activities on the tribe are serious and
substantial." 56 Fed. Reg. at 64878.  

The State of Montana's comments did not provide data pertaining to the
Tribes' assertions that impairment of waters on reservation fee lands
may have effects on the health and welfare of the Tribes that are
serious and substantial.  Since the Tribes' submittal met the initial
requirement imposed on them by the regulation, the State's submittal
should have presented any available data demonstrating that impairment
of waters by activities on fee lands would not have potential effects on
the health and welfare of the Tribes that are serious and substantial. 
56 Fed. Reg. 64879.  EPA carefully evaluated the State's submission and
determined that the State did not provide information that would cause
the Agency to conclude that the Tribes' assertions were unsupported.

The State contended that it had no opportunity to submit facts
contesting the Tribes' assertion.  However, as provided by the
regulation, the State was provided notice as to the substance of the
Tribes' assertion of authority and was given thirty days within which to
submit information sufficient to establish a competing or conflicting
claim under the applicable regulation.  40 CFR Section 131.8 (c)(2)-(4).
 The State did not submit such information.

Accordingly, having considered the information the State submitted, EPA
has concluded:  (1) that the Tribes have demonstrated that they possess
the requisite regulatory jurisdiction, and (2) that the State has not
established that the Tribes lack jurisdiction.

The State also asserts that the jurisdictional test established in the
preamble to the regulation is not proper.  EPA does not agree.  

The State's position is that EPA should apply the general rule
established in Montana v. United States, 450 U.S. 544 (1981), that the
Tribes lack jurisdiction on fee lands and the exceptions to that rule
apply only in "narrow, fact-based circumstances."  In fact, EPA's
operating rule, established and discussed at 56 Fed. Reg. 64878-79, was
based upon the principles set forth in the Montana case.  In adopting
its operating rule, the Agency reviewed the Supreme Court's decision in
Brendale v. Confederated Bands and Tribes of the Yakima Nation, 492 U.S.
408 (1989) and determined that the holding of the Court in Brendale was
consistent with the Montana test.  In the subsequent Supreme Court
opinion in South Dakota v. Bourland, 508 U.S., 113 S. Ct. 2309 (1993),
the Court remanded a portion of the case pertaining to jurisdiction over
non-member activities on fee lands to the District Court for
consideration under the Montana rule.  The Agency has determined that
the Bourland opinion is thus consistent with the Court's Montana and
Brendale decisions and with the Agency's 1991 analysis.  The Agency also
believes that the exceptions to the Montana rule, allowing tribal
jurisdiction where there is potential for direct impacts on tribal
health and welfare, are appropriately applied in this case.  In
addition, it should be noted that the Agency operating rule asks Tribes
to show that the impacts required by the Montana rule be more than de
minimis; in fact, the Agency rule asks that these impacts be "serious
and substantial." 

The Tribes also contend that the CWA delegates authority for approved
Tribes to regulate water quality for all sources within the exterior
boundaries of the Reservation and that the CWA preempts the State from
regulating water quality within the Reservation.  The Tribes' position
is based on language in the Act authorizing approval of a tribal program
for functions "within the borders of an Indian reservation," 33 U.S.C.
Section 1377(e)(2), and defining a Reservation as "all land within the
limits of any Indian reservation ... notwithstanding the issuance of any
patent."  33 U.S.C. Section 1377(h)(1).

EPA regulations governing reservation water quality standards do not
construe the CWA as delegating authority to Tribes over all reservation
sources, or as preempting State regulation.  56 Fed. Reg. 64880. 
Nevertheless those regulations do explicitly request each Tribe "to
outline all bases for concluding that the Tribe has adequate authority"
to set water quality standards on the reservation, noting that such a
discussion "can only help EPA to make a proper determination" as the
appropriateness of approving the tribal water quality standards program.
 56 Fed. Reg. 64881.  The portion of the tribal submission discussing
delegation and preemption complies with the Agency's explicit request in
this regard, and is therefore appropriate for consideration.  To the
extent the Tribes' position is correct, it would provide support for
EPA's determination. 

Finding:  EPA finds that existing and future activities on fee lands
within the exterior borders of the Fort Peck Reservation have potential
direct impacts on the health and welfare of the Tribes and their members
that are serious and substantial.  The facts upon which the Agency has
based this finding are set forth in the Appendix.

In making its finding, the Agency has relied on its special expertise
and practical experience regarding the importance of water management,
recognizing that clean water, including critical habitat (i.e.,
wetlands, spawning beds, etc.) may be crucial to the survival of the
Fort Peck Reservation. 



Based upon its special expertise and practical experience, the Agency
also believes that the activities regulated under the CWA generally have
impacts on human health and welfare that are serious and substantial. 
As discussed at 56 Fed. Reg. 64878, this finding is consistent with our
belief that the CWA itself constitutes, in effect, a legislative
determination that activities which affect surface water quality and
critical habitat quality may have impacts on human health and welfare
that are serious and substantial.

Additionally, the Agency is mindful that, because of the mobile nature
of pollutants in surface waters and the relatively close proximity of
stream segments on fee and trust lands within the Fort Peck Reservation,
it would be practically very difficult to separate out the effects of
water quality impairment on fee lands within the Reservation from those
on tribal portions.  In other words, it is highly probable that any
impairment occurring on, or resulting from activities on, fee lands will
impair the water and critical habitat quality of the tribal lands. 
Similarly, the serious and substantial effects of water quality
impairment within the non-member portions of the Reservation are very
likely to affect the tribal interest in water quality.

EPA also believes that Congress has expressed a preference for tribal
regulation of surface water quality to ensure compliance with the goals
of the CWA (see 56 Fed. Reg. at 64878-79).  EPA interprets Section 518
of the CWA, in providing for the treatment of Indian Tribes as States
under Section 303 of the Act, as authorizing Tribes to assume a primary
role in setting water quality standards on reservations.  A checkerboard
system of regulation, whereby the Tribe and State split up regulation of
surface water quality on the reservation, would ignore the difficulties
of assuring compliance with water quality standards when two different
sovereign entities establish standards for closely intermixed stream
segments.  56 Fed. Reg. 64878. 

The generalized findings regarding the relationship of water quality to
tribal health and welfare affect the legal analysis of the Tribes'
submission by, in effect, supplementing the Agency's factual findings
contained in the Appendix.  In accordance with 56 Fed. Reg. at 64879,
the Tribes have made a showing of facts that there are waters within the
Reservation used by the Tribes or tribal members (and thus that the
Tribes or tribal members could be subject to exposure to pollutants
present in, or introduced into, those waters) and that the waters and
critical habitat of the Reservation are subject to protection under the
CWA.  The Tribes have also asserted that impairment of such waters by
the activities of non-members would have an effect on the health and
welfare of the Tribes that is serious and substantial.  Based upon the
facts available to the Agency from the Tribes and other sources, as
presented in the Appendix, and in light of the generalized statutory and
factual findings discussed above, the Agency believes that the Tribes
have demonstrated that the protection of water quality sought to be
carried out by setting water quality standards for water on fee lands on
the Fort Peck Reservation would protect against potential impacts on
tribal health and welfare that are serious and substantial.   



Thus, the Agency believes that the Tribes have successfully demonstrated
adequate authority to establish water quality standards within the Fort
Peck Reservation and that the Tribes have met the requirements of 40
C.F.R. Section 131.8(a)(3).

D.  Capability:  The Fort Peck Tribes have demonstrated that they are
reasonably capable of establishing and implementing a water quality
standards program that will 

comport with the requirements of the CWA.  This finding is based on
information submitted with the Fort Peck application and other available
information.

The Tribes have been administering a water quality management program
under CWA § 106 since 1989.  The Tribes monitor their surface waters
for chemical, physical, and biological parameters consistent with an
EPA-approved quality assurance/quality control project plan.  Further,
the Tribes have completed a nonpoint source assessment report and
management plan which EPA has found to be a technically-sound evaluation
of current nonpoint source problems.  The assessment report will be
useful in addressing nonpoint sources on the reservation.  Although the
Tribes have not yet completed draft water quality standards, EPA finds
that the staff has the technical capability to develop appropriate
standards regardless of the development option selected (at this point,
it is believed that tribal staff favor modeling their standards after
those adopted by Montana).

Consistent with 40 CFR Section 131.8(a)(4), EPA therefore finds more
than a reasonable expectation that the Fort Peck Tribes will be capable
of carrying out the functions of an effective water quality standards
program in a manner consistent with the terms and purposes of the Act
and applicable regulations.

 

III.	Conclusions:	The Agency has determined that the Fort Peck Tribes of
the Fort Peck Reservation have met the requirements of 40 CFR Section
131.8.  The Agency approves the Tribes' request to administer Section
303(c) of the CWA.

		Signed August 29, 1996

__________________________________

Jack W. McGraw

Acting Regional Administrator

EPA Region VIII

  

	Appendix

EPA finds that existing and future activities on fee lands within the
exterior borders of the Fort Peck Reservation have potential direct
impacts on the health and welfare of the Tribes and tribal members that
are serious and substantial.

A.	BASIS FOR FINDING

1.	Role of Water Quality Standards in Protecting Human Health and
Welfare.

The Federal Water Pollution Control Act (Clean Water Act or CWA) of 1972
and subsequent amendments call for the maintenance and restoration of
the physical, chemical and biological integrity of our nation's waters. 
The quality of water above and within the stream or lake bed and the
deposition of materials from the water column have a direct affect on
this goal.

 	

Under the CWA, the integrity of our nation's waters is affected by, and
protected through application of, water quality standards.  Water
quality standards consist of a designated use or uses for surface waters
of the United States, water quality criteria that protect such uses, and
an antidegradation policy.  Uses which must be designated for protection
include, but are not restricted to, domestic water supply, fish,
shellfish, and wildlife, recreation in and on the water, agriculture,
industrial and other purposes including navigation.  States and Tribes
may also develop their water quality standards to protect unique
cultural, religious, or ceremonial uses.  Implementation of water
quality standards affects human health and welfare in the following
ways: 

•	Protection of domestic water supplies ensures that human health will
be directly protected from disease and from exposure to toxic materials
at acute or chronic levels.  This protection is basic to human health
and welfare.

  

•	Protection of fish, shellfish, and wildlife uses assures that
aquatic ecosystems will function to cycle energy, aid in the
detoxification of contaminants and provide the diversity and
productivity of aquatic life.  These functions, in turn, enable
aesthetic, educational/scientific, recreational, and food goals to be
achieved.  The full protection of aquatic life uses also helps ensure
economic welfare through harvest of fish and other aquatic life and
encouragement of water-based recreation businesses.  Protection of
wildlife uses helps assure that birds, mammals, reptiles, and amphibians
that use and depend upon surface waters as a source of water, food, or
habitat will maintain the species diversity and productivity that they
are capable of.  Protection of wildlife that serve as a food source
provides protection from toxins that can accumulate in wildlife.

•	Protection of recreation uses in and on the water affects human
welfare by allowing full body contact during play and sport without
undue threat of disease or loss of aesthetic pleasure.  

•	Protection of agricultural uses promotes economic welfare by
safeguarding the abundance and quality of crops and protecting human
health through control of toxic contaminants that can accumulate in
crops.   

•	Protection of industrial and navigation uses helps assure economic
welfare through control of contaminants that may be costly to industrial
or navigation uses through corrosion or interference with industrial
processes.

•	Antidegradation requirements protect all existing uses of surface
waters regardless of whether such uses are actually designated in water
quality standards.  Antidegradation requirements also serve to maintain
and protect the quality of high quality waters and waters that
constitute an outstanding national resource.  Antidegradation
requirements can be utilized by Tribes and States to maintain and
protect the quality of surface waters that provide unique cultural,
religious, or ceremonial uses.

2.	Relationship of Non-member Owned Fee Lands to Tribal Lands and
Waters.

The information below discusses the relationship of non-member owned fee
lands on the Ft. Peck Indian Reservation to tribal lands and the waters
on tribal lands.  A primary source of information used in preparing this
discussion is the 1994 "Fort Peck Tribes Non Point Source Assessment
Plan", prepared by the Fort Peck Assiniboine and Sioux Tribes' Office of
Environmental Protection.

The Fort Peck Indian Reservation is located in northwestern Montana's
glaciated plains and is bound by the Missouri River on the south, the
Milk River and Porcupine Creek to the west, Big Muddy Creek on the east,
and on the north by 48 degrees 38 minutes north latitude.  Most boundary
streams headwater in Canada, the exception being the Missouri which
headwaters in southwestern Montana.  

The reservation's population consists of about 52% Indians and 48%
non-Indians.   Agriculture is the primary economic activity for both
sectors of the population.  The reservation is comprised of 45% trust
and allotted land and 55% fee land.  Land use on the reservation is
dominated by agriculture, specifically cattle grazing and small grain
dryland farming.  Of the fee lands (a large majority of which are owned
by non-Indians), about 780,000 acres are used as rangeland and about
510,000 acres are used as cropland (based on the Fort Peck Tribes Air
Quality Emission Inventory, 1989, and the Bureau of Indian Affairs Land
Status Report, 1993).

The reservation is located in the Missouri River basin.  Four major
drainages transverse the reservation in a northwesterly to southeasterly
direction, and all drain into the Missouri River.  Because land
ownership is very significantly "checkerboarded", with Indian and
non-Indian lands interspersed throughout the reservation, any current or
future contamination of surface waters as a result of activities on
non-Indian owned fee lands will very likely be transported downstream to
waters on tribal lands.  This finding is based on the patterns of land
ownership, land uses, and location of surface waters on the reservation.
 For example, a significant portion of non-Indian owned fee lands are
located upstream of tribal lands.  Further, as noted above, over one
million acres of fee lands on the reservation are used for agricultural
purposes (e.g., rangeland, cropland).  Thus, pollution sources entering
surface waters on non-Indian lands (e.g., as a result of agricultural
practices) are likely to affect, to some degree, the quality of
downstream tribal waters, and may potentially interfere with tribal uses
of such waters, as discussed in detail below. 

3.	Types of Surface Water Quality Problems Potentially Caused or
Exacerbated by Pollution Sources on Non-member Owned Fee Lands.

  

Activities on non-member owned fee lands may potentially cause or
contribute to various general categories of surface water quality
problems and may potentially create direct effects on the health and
welfare of tribal members that are serious and substantial.  The
following provides an overview of some of the major categories of water
quality problems and briefly discusses how each could seriously and
substantially influence the health and welfare of tribal members.  Note
that the discussion below is intended to provide general examples of
current or future water quality problems that could potentially occur on
the Fort Peck Indian reservation as a result of various human activities
on non-member owned fee lands.

•	Turbidity and Sediment.  Agricultural practices on non-member owned
fee lands have the potential to increase water turbidity, sediment
transport in the water column, and deposition of sediments on stream and
lake bottoms.  Increased loadings of sediment can result from irrigated
or dryland farming and from improper grazing practices that can reduce
streambank vegetation and accelerate streambank erosion.  Turbidity and
fine sediments can negatively affect aquatic life in tribal waters by
reducing photosynthesis of plant life, by interfering with sight feeding
of fish, by smothering fish eggs and insect life, and by reducing the
habitat available for food organisms and spawning of fish.  

The result of increased turbidity and sediment deposition can be a lower
growth rate of fish from loss of food resources and/or elimination or
significant reduction of spawning success in streams.  Fish populations
in both the streams and the lakes to which they are tributary may
decline.  Such problems may impair tribal recreational uses of surface
waters and reduce current or future use of fisheries as a food source.

•	Herbicides and Pesticides.  Agricultural runoff from non-member
owned fee lands has the potential to increase loadings of herbicides and
pesticides.  Depending on the concentrations, these loadings may cause
direct mortality or reduction of growth and reproduction in fish and
invertebrates.  Tribal members may also face potential health risks from
exposure to herbicides and pesticides present in fish flesh or drinking
water taken from tribal waterbodies or from ingestion of wildlife that
feed upon aquatic plants or animals in tribal waterbodies.  

•	Flow Diversion.  Diversion of flows for agricultural uses on
non-member owned fee lands can result in effects on water quality and
the integrity of aquatic communities by increasing stream temperatures
and by the loss of physical habitat for fish and other life.  Increased
stream temperatures may exceed levels necessary for optimum growth,
cause direct mortality, or prevent successful fish spawning and
survival.  Application of irrigation waters to saline soils may result
in leaching of salts back to rivers, thereby increasing salinity and
dissolved solids and potentially interfering with downstream uses
including water supply, irrigation, and livestock watering.

•	Nutrients.  Agricultural runoff from non-member owned fee lands has
the potential to significantly increase loadings of nutrients to surface
waters.  Increases in loading of nutrients (primarily nitrogen and
phosphorus compounds) can result due to both irrigation and
precipitation.  These nutrients can stimulate undesirable increased
growth of vegetation in lakes or streams.  High concentrations of
phytoplankton (microscopic plants) or larger plants are known to result
in undesirable changes in water quality on a daily or seasonal basis. 
For example, excessive vegetation may result in very low levels of
dissolved oxygen during dark hours when photosynthesis does not occur
but respiration continues.  Stimulation of plant growth from excessive
nutrients may result in low dissolved oxygen and fish kills during
winter periods.  Excess nitrate in drinking water may cause
methemoglobinemia or "blue baby syndrome" in infants, a potentially
fatal toxic effect.

High nutrient levels may also encourage a shift in the types of
phytoplankton found in lakes and ponds, encouraging the blue-green algae
typical of eutrophic (over-enriched) waters.  This may result in a less
desirable food source for zooplankton, production of plant toxins, and
seasonal low dissolved oxygen concentrations.

•	Metals.  Agricultural runoff from non-member owned fee lands has the
potential to increase loadings of metals to surface waters.  Increased
loadings of metals can also result from historical, current, or future
mining activities.  Dissolved and particulate 

metals can pose risks to aquatic life, wildlife, agricultural, and water
supply uses.  

•	Ammonia, Chlorine and BOD.  Increases in loadings of ammonia,
chlorine and oxygen-demanding substances (BOD) may result from point
source discharges from current or future wastewater treatment plants on
non-member owned fee lands.  Because rather small shifts in pH and
temperature can significantly increase the toxicity of ammonia, effects
of discharges on the growth and survival of aquatic life may occur far
downstream from discharges.  Ammonia and its breakdown products 

may also serve as nutrients for excessive plant growth and as sources
of oxygen demand, which can lower oxygen levels in tribal waters.  

Chlorine has direct toxicity to aquatic life at very low levels and may
directly affect the growth, reproduction and survival of aquatic life.

Increases in BOD loading can result in reduced oxygen levels, which
affects aquatic life survival, growth, and productivity.    

•	Toxic Chemicals.  A wide variety of human activities on non-member
owned fee lands can potentially result in toxic substances entering
surface waters and interfering with tribal uses of such waters. 
Examples include use of household cleaning products, automobile
maintenance, street cleaning and maintenance, landfills, and industrial
activities such as manufacturing and mining.  Toxic pollutants resulting
from such activities may enter surface waters directly following a
precipitation event or through municipal wastewater treatment plants. 
Surface water pollution resulting from such activities can potentially
interfere with aquatic life, recreational, water supply, and
agricultural waterbody uses. 

•	Fecal Contamination.  Fecal contamination of tribal waters can
result from point source discharges from current or future wastewater
treatment plants on non-member owned fee lands that discharge into
tribal waters.  Fecal contamination of tribal waters can potentially
also occur from on-site treatment systems (e.g., septic tanks).  Fecal
coliform bacteria are indicators of health risks resulting from human
waste, and diseases may pass to human populations that drink, bathe, or
otherwise come in contact with tribal waters so contaminated.

4.	Examples of Current Water Quality Problems On the Fort Peck Indian
Reservation.

The following discussion provides information regarding current known
water quality problems on the Fort Peck Indian Reservation.  Based on
known population, land ownership, and land use statistics (discussed
above in section 2), it is very likely that activities on non-member
owned fee lands either cause or contribute to many of these current
water quality problems.  

(a)	Point Sources.

There are currently two discharging facilities with MPDES permits on
the reservation (i.e., Wolf Point and Brockton) that discharge directly
into the Missouri River (personal communication with Fred Shewman,
Montana Water Quality Bureau, January 11, 1995).  Poplar is another
community on the reservation that has been issued an MPDES permit; that
facility discharges directly into the Poplar River (personal
communication with Bill Engle, EPA Montana Operations Office).  A review
of the EPA Permit Compliance System for these three point sources
indicated that none of the three had any permit limit violations for the
period of July 1, 1992 to June 30, 1995 (personal communication with
Bill Engle, EPA Montana Operations Office).  It is not known whether
there are unpermitted point source discharges to surface waters or
whether, in the future, new point source discharges will occur.  In
general, although there is no evidence suggesting current water quality
problems as a result of point source discharges, such problems could
arise in the future.

(b)	Nonpoint Sources.

Except where noted, the source of these examples is the 1994 "Fort Peck
Tribes Non Point Source Assessment Plan", prepared by the Fort Peck
Assiniboine and Sioux Tribes' Office of Environmental Protection.  The
Tribes' nonpoint source assessment was produced by assembling data from
many sources including the Tribes' physical, chemical, and biological
monitoring of reservation surface waters.  The tribal biological
monitoring program was initiated in 1991; chemical monitoring of
reservation waters has been ongoing since 1979.  For waters where
monitoring data were not available, the report includes assessment
information based on other information including best professional
judgment.  Based on all of the available information, the report found
that over 300 reservation stream miles were severely or moderately
impaired.  The information presented below provides drainage-specific
examples of current surface water quality problems on the reservation. 
These examples are illustrative and not comprehensive.  For a more
complete discussion refer to the Tribes' nonpoint source assessment.

a)	Porcupine-Milk River Drainage

This drainage is located on the west side of the reservation.  Existing
land uses are predominantly rangeland, dryland crop agriculture and
limited irrigated lands.  The dryland crop agriculture use is
characterized by strip fallow operations and associated saline seeps
common to the northern great plains.  Land ownership is a mix of fee
title, allotted, trust and tribal lands.  A total of fifty stream miles
in this drainage were identified as moderately impaired.  Identified
causes of impairment included grazing, streambank erosion, and
irrigation.  Parameters for which exceedences of Montana water quality
criteria were found included total ammonia, boron, iron, sodium,
phosphorus, specific conductance, and temperature.

b)	Little Porcupine-Wolf Creek-Tule Creek Drainage

The Little Porcupine-Wolf Creek-Tule Creek drainage is located within
the west-central portion of the reservation.  The largest urban center
on the reservation is located at the confluence of the drainage and the
Missouri River.  Other land use is predominantly rangeland.  Land
ownership is a combination of fee title, allotted, trust, and tribal
lands.  Wolf Creek is one of two salmonid fisheries on the reservation. 
A total of 30 stream miles in this drainage were identified as severely
impaired, while 60 stream miles were identified as moderately impaired. 
Identified causes of impairment included lowered dissolved oxygen,
grazing and streambank erosion.  Parameters for which exceedences of
Montana water quality criteria were found included boron, cadmium, lead,
iron, sodium, phosphorus, manganese, pH, temperature, dissolved oxygen,
temperature, specific conductance, and ammonia.

c)	Poplar Drainage

This drainage is contained within the east-central portion of the
reservation.  A major urban center is located at the mouth of the
drainage.  Other land use is predominantly rangeland.  Land ownership is
a mix of fee title, allotted, trust, and tribal lands.  The Poplar River
is one of two salmonid fisheries on the reservation.  A total of
seventy-eight stream miles were identified as moderately impaired. 
Identified causes of impairment included grazing, streambank erosion,
dryland crops, and the East Poplar Oilfield Unit.  Increased chloride
loadings have been documented in the Poplar River as it flows through
the East Poplar Oilfield; contaminated groundwater has been linked to
these increased loadings.  The East Poplar Oilfield unit is located on
lands with mixed ownership:  some are allotted lands owned by tribal
members and some are fee title lands (personal communication with Debi
Madison, Fort Peck Tribes, March 28, 1996). Dissolved solids such as
chloride can interfere with drinking water, aquatic life, wildlife, and
agricultural uses.  Parameters for which exceedences of Montana water
quality criteria were found included temperature, dissolved oxygen,
specific conductance, sediment, temperature, iron, lead, manganese,
boron, nitrite, sodium, phosphorus, and pH.

d)	Big Muddy Drainage

The Big Muddy drainage is the eastern border of the reservation.  Land
use is predominantly rangeland.  A total of eighty-four stream miles
were identified as moderately impaired.  Identified causes of impairment
included grazing, dryland crops, irrigation, channelization, and
wastewater.  The source of the "wastewater" is the Medicine Lake
discharge to the Big Muddy, which is now a containment lagoon and no
longer a discharging facility (personal communication with Deb Madison,
Ft. Peck Tribes, January 11, 1995).  Parameters for which exceedences of
Montana water quality criteria were found included ammonia, iron, lead,
boron, temperature, specific conductance, pH, sediment, cadmium,
manganese, phosphorus, sodium, and dissolved oxygen.

B.	Finding

EPA finds that existing and future activities on fee lands within the
exterior borders of the Fort Peck Reservation have potential direct
impacts on the health and welfare of the Tribes and tribal members that
are serious and substantial.  The establishment of water quality
standards by the Tribes will enable the Tribes to set appropriate water
quality goals to aid in avoiding these potential impacts.

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