E7-3203. Safe Drinking Water Act Determination; Underground Injection Control Program, Determination of Indian Country Status for Purposes of Underground Injection Control Program Permitting

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of final determination.

SUMMARY:

This notice announces the availability of EPA's Land Status Determination, which concludes that the approximately 160 acres of land located in the southeast portion of Section 8, Township 16N, Range 16W, in the State of New Mexico (the Section 8 land), is part of a dependent Indian community under 18 U.S.C. 1151(b) and, thus, considered to be “Indian country.” EPA is therefore the appropriate agency to consider underground injection control (UIC) permit applications under the Safe Drinking Water Act (SDWA) for that land.

DATES:

The determination was signed on February 6, 2007.

FOR FURTHER INFORMATION CONTACT:

David Albright, at [e-mail], or 415.972.3971.

SUPPLEMENTARY INFORMATION:

In the late 1980s, Hydro Resources, Inc. (HRI) sought a UIC permit for its property located within the Section 8 land. After considering materials submitted by the Navajo Nation and the New Mexico Environment Department (NMED), EPA determined that the Indian country status of the Section 8 land was in dispute and, thus, that EPA would be the appropriate agency to issue the SDWA UIC permit. The State of New Mexico and HRI challenged EPA's determination. In 2000, in HRI v. EPA, 198 F.3d 1224 (10th Cir. 2000), the United States Court of Appeals for the Tenth Circuit upheld EPA's decision to implement the UIC program throughout HRI's Section 8 land because the Indian country status of that land was in dispute. The Court remanded the matter to EPA to make a final administrative decision on the Indian country status of the disputed land.

In 2005, HRI approached NMED concerning a UIC permit for its proposed mining operations on the Section 8 land. In response, NMED formally requested that EPA determine the Indian country status of the Section 8 land to identify whether EPA or NMED is the appropriate agency to consider a UIC permit application from HRI for that land.

On November 2, 2005, EPA issued a Federal Register notice (see 70 FR 66402) inviting written comments and information from the public and interested parties on whether the Section 8 land constituted a dependent Indian community in whole or in part. EPA received comments from twenty-five (25) commenters, including HRI, the Navajo Nation, the State of New Mexico, and others.

The Agency reviewed the status of the land in light of the comments it received, the existing case law, and a November 3, 2006 opinion from the United States Department of the Interior (DOI) Solicitor, who has special expertise on Indian country questions. EPA also consulted with the Navajo Nation pursuant to its federal trustee relationship.

On February 6, 2007, EPA issued its final determination concluding that the Section 8 land is part of a dependent Indian community under 18 U.S.C. 1151(b) and, thus, “Indian country.” EPA is therefore the appropriate agency to consider underground injection control permit applications under the Safe Drinking Water Act (SDWA) for that land. For a copy of the Determination and other supporting material, go to http://www.epa.gov/​region09/​water/​groundwater/​permit-determination.html.

Dated: February 15, 2007.

Laura Yoshii,

Acting Regional Administrator, Region IX.