By Ryan Dreveskracht
The current regulation of water pollution in Indian country is complex, to say the least.
Governed largely by the Clean Water Act (“CWA”)—a comprehensive statute designed to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters” through the reduction and eventual elimination of pollutant discharge into those waters—the regulation of water pollution in the U.S. anticipates a partnership between the federal government and states. 33 U.S.C. § 1251. The federal government sets the minimum level of pollution reduction required by the Act and “[i]f the states wish to achieve better water quality, they may.” U.S. Steel Corp. v. Train, 556 F.2d 822, 838 (7th Cir. 1977).
In 1987, Congress revised the CWA, authorizing the Environmental Protection Agency (“EPA”) Administrator to treat Indian tribes as states for the purposes of the CWA, so long as the tribes meet certain enumerated criteria. 33 U.S.C. § 1377. A tribe that meets the onerous criteria listed in 25 U.S.C. § 518(e), 33 U.S.C. § 1377(e), and 40 C.F.R. § 131.8(a), may submit an application to the EPA. 40 C.F.R. § 131.8.
Upon receipt of the application, the EPA provides a thirty-day period to receive comments on the tribe's assertion of authority. If comments challenge the tribe's authority, the Regional Administrator, after consulting with the Secretary of the Interior, must make an independent determination whether the Tribe meets the requirements of 40 C.F.R. § 131.8(a)(3). This can take years.
Once this hoop is jumped through, a tribe may submit proposed water quality standards to EPA. The effluent limitation standards must mirror the uniform and technical guidelines set by EPA. 33 U.S.C. §§ 1311, 1314. The other measure of water quality is a “water quality standard.”
Unlike the effluent limitations guidelines, water quality standards are not uniform, but must express the desired condition or use of a particular waterway in a way that “prevent[s] water quality from falling below acceptable levels.” Environmental Protection Agency v. California, 426 U.S. 200, 205 n.12 (1976). The criteria may be based on EPA guidance, EPA guidance modified to reflect conditions at the site, or on “other scientifically defensible methods.” 40 C.F.R. § 131.11.
After adoption, the tribe must submit the water quality standards to EPA for review and approval. 33 U.S.C. § 1313(c)(2); 40 C.F.R. § 131.20(c). If EPA concludes that the standards are inconsistent with the CWA, the agency must notify the tribe of that fact within ninety days and specify the changes necessary to bring the proposed standards into compliance. 33 U.S.C. § 1313(c)(3). If the tribe fails to adopt the specified changes within ninety days, the tribe's application will be denied. 33 U.S.C. § 1313(c)(4)(A).
Considering this procedural and administrative headache, it should come as no surprise that only 40 of the 566 federally recognized tribes in the U.S. have completed the process of obtaining EPA’s “treatment as state” approval. As a consequence, waters on the majority of Indian reservations do not have water quality standards under the CWA, and therefore are essentially unprotected.
On August 7, 2015, though, the EPA proposed a rule to eliminate many of the steps that an applicant tribe must go through.Particularly important is the EPA’s proposal to put tribes on an equal footing with states by removing the requirement that the applicant tribe make a specific showing that it has “authority to regulate water quality” and an “ability to administer a water quality standards program.” 40 C.F.R. § 131.8.
According to EPA, this regulatory change would “significantly reduce the time and effort for tribes to develop their applications, and could encourage more tribes to apply for treatment as states.” 80 Fed. Reg. 47430 (Aug. 7, 2015). The rule change has been supported by numerous tribes across the nation.
Public comments on the EPA's proposed rule are being accepted until October 6.
Ryan Dreveskracht is an attorney at Galanda Broadman, PLLC. His practice focuses on representing tribal governments in public affairs, energy, gaming, taxation, and general economic development. He can be reached at 206.909.3842 or ryan@galandabroadman.com.
