Recent EPA Actions to Protect Tribal Water Quality

Recent EPA Actions to Protect Tribal Water Quality

October 18, 2016
Recent EPA Actions to Protect Tribal Water Quality
The U.S. Environmental Protection Agency (EPA) has
applications by requiring tribes to demonstrate on a case-
recently taken several actions intended to strengthen water
by-case basis their inherent authority under principles of
quality protection within Indian reservations. Three
Indian law that the tribe has jurisdiction to regulate under
actions—(1) issuance of an interpretive rule in May 2016,
the CWA, especially inherent tribal authority over non-
(2) promulgation of another rule in September, and (3)
member activities within a reservation. Inherent authority,
request for comment on another possible rule also in
or sovereignty, refers to the principle that powers lawfully
September—are described by EPA as part of a broad effort
vested in tribes, such as self-government, are not in general
to narrow gaps in water quality protection in Indian
delegated powers granted by express acts of Congress.
country. While these initiatives are widely supported by
tribal interests, they raise concerns with some states, local
In May 2016 EPA issued an interpretive rule that revised its
governments, and industries. States have primary
long-standing interpretation requiring TAS applicants to
responsibility for protecting water quality within their
demonstrate their inherent authority to regulate under the
borders except in Indian country where civil regulatory
CWA (see U.S. Environmental Protection Agency,
authority generally lies with the federal government and the
“Revised Interpretation of Clean Water Act Tribal
relevant tribe, not with the states.
Provision,” 81 Federal Register 30183-30198, May 16,
2016). Under its reinterpretation, EPA concluded that CWA
Recognizing Indian Tribes in a Similar
Section 518 includes an express delegation of authority by
Manner as a State
Congress to Indian tribes to administer CWA regulatory
Section 518(e) of the Clean Water Act (CWA) (33 U.S.C.
programs over their entire reservations, subject to the
1377(e)) authorizes EPA to treat eligible federally
eligibility requirements in Section 518, and that a
recognized Indian tribes in a similar manner as a state (i.e.,
demonstration of inherent authority is not required.
“treatment as a state,” or TAS) for the purposes of receiving
grants under several funding authorities and administering
EPA had concluded that demonstrating inherent authority
certain regulatory programs of the act. Section 518(h)
over non-member activities on a reservation creates an
defines “Indian tribe” to mean any Indian tribe, band,
unintended administrative burden on applicant tribes and
group, or community recognized by the Secretary of the
requires substantial commitments of tribal and federal
Interior and exercising governmental authority over a
resources. The agency has long viewed Section 518(e) as
federal Indian reservation. It also defines “federal Indian
expressing Congress’s preference for tribal regulation of
reservation” to mean all land within the limits of any
reservation waters. EPA believes that the May 2016
reservation under the jurisdiction of the U.S. government,
interpretive rule will streamline the process of applying for
notwithstanding the issuance of any patent, and including
TAS status, and it estimates that 12 tribes per year would
rights-of-way running through the reservation (33 U.S.C.
apply under the rule. The rule was based in part on the
1377(h)). According to EPA, tribes can seek TAS with
agency’s interpretation of similar Clean Air Act provisions
respect to water resources over all land within a reservation,
(42 U.S.C. 4201(d)) that, according to EPA, federal courts
including, for example, land held in trust by the United
have held provide an express congressional delegation of
States for a tribe, land owned by or held in trust for a
authority to eligible tribes to protect environmental
member of the tribe, and land owned by non-tribal
resources (see 81 Federal Register 30186-30187).
members.
TAS for Purposes of TMDLs
The federal government has recognized 567 tribes. Over
As described previously, EPA has issued rules establishing
300 of these tribes have reservation lands such as formal
a process for federally recognized tribes that have TAS
reservations, Pueblos, and informal reservations (i.e., lands
status to then obtain TAS for regulatory provisions of the
held in trust by the United States for tribal governments that
CWA, such as developing water quality standards (40
are not designated as formal reservations), but less than
C.F.R. 131.8), issuing water quality certification (40 C.F.R.
25% have sought TAS status.
131.4(c)), and issuing discharge permits (40 C.F.R. 123.31-
34). In September 2016, EPA finalized a companion to
CWA Section 518(e) establishes eligibility criteria for TAS,
these procedural rules with a regulation enabling eligible
including that the tribe has a governing body carrying out
tribes to obtain authority to identify impaired waters on
substantial governmental duties and powers and that it has
their reservations and to establish total maximum daily
jurisdiction over the media or objects sought to be
loads (TMDLs), as states routinely do for non-Indian land
regulated. EPA promulgated several rules establishing TAS
waters (See U.S. Environmental Protection Agency,
criteria and procedures for Indian tribes interested in
“Treatment of Indian Tribes in a Similar Manner as States
administering CWA programs, beginning in 1991.
for Purposes of Section 303(d) of the Clean Water Act,” 81
According to EPA, since that time, it has taken what it
Federal Register 65901-65917, September 26, 2016.)
characterizes as a cautious approach to approving TAS
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Recent EPA Actions to Protect Tribal Water Quality
CWA Section 303(d) requires states and approved tribes to
EPA contends that there is a gap in water quality protection
identify waters that are impaired by pollution, even after
under the CWA for waters on Indian reservations. Thus, in
application of technology-based controls (33 U.S.C.
a September 2016 Federal Register Notice, the agency
1313(d)). For those waters, states and approved tribes must
sought the public’s views on whether and how it should
establish a TMDL to ensure that water quality standards can
initiate a rulemaking to establish federal baseline water
be attained. A TMDL is both a quantitative assessment of
quality standards for Indian reservation waters that do not
pollution sources and pollutant reductions needed to restore
have EPA-approved standards. (See U.S. Environmental
and protect U.S. waters and a planning process for attaining
Protection Agency, “Federal Baseline Water Quality
water quality standards. A TMDL can result in imposition
Standards for Indian Reservations, Advance notice of
of additional pollutant discharge limits on sources. (For
proposed rulemaking,” 81 Federal Register 66900-66911,
information, see CRS Report R42752, Clean Water Act and
September 29, 2016.) The Notice did not provide details of
Pollutant Total Maximum Daily Loads (TMDLs)). By
a proposed rule. Rather, EPA requested comment on
obtaining TAS status for Section 303(d), tribes can take the
questions such as (1) should EPA establish one set of water
lead role in identifying impaired waters on their
quality standards that apply universally to reservation
reservations and in establishing TMDLs. In the absence of
waters or offer limited tailoring opportunities; (2) what
TAS approval under this rule, EPA or a state would have
designated uses should be established in any federal
this responsibility for such waters.
baseline standards; and (3) what pollutant criteria limits
should be included to protect aquatic life and human
The 2016 rule does not require anything of tribes that are
health? The comment deadline is December 28, 2016. EPA
not interested in seeking TAS status for the 303(d) program,
will then decide whether to proceed with a rulemaking.
and EPA acknowledges that not all tribes will be interested
in doing so. The rule also does not require tribes seeking
Concerns of States, Localities, Industries
TAS eligibility for the 303(d) program to have previously
EPA’s recent actions and announcements concerning tribal
obtained EPA approval for TAS to develop water quality
water quality protection likely intensify long-standing
standards or require tribes to have EPA-approved standards
jurisdictional tensions and conflicts between some tribes
for their reservation waters in place.
and states, local governments, and industries. When tribes
obtain TAS status, they can adopt more protective water
Federal Baseline Water Quality
quality standards than states may have set for adjacent
Standards for Indian Reservations
waters, potentially affecting common waterbodies and non-
Water quality standards are the fundamental building
members with activities on reservation lands. Further,
blocks of the CWA. Established by states or authorized
because the CWA allows states to adopt water quality
tribes and approved by EPA, they define a state’s water
requirements such as discharge permit limits more stringent
quality goals and are the basis of enforceable discharge
than federal rules, a tribe that has TAS status for permitting
permits. They also provide the benchmark against which
could similarly do so (however, no tribe has such authority
impaired waters are identified and TMDLs are developed.
now; EPA issues CWA permits in Indian country).
Water quality standards consist of designated uses or goals
for protection of the waterbody (such as fishing, swimming,
These situations can create challenges for industry, by
or public water supply), narrative and numeric limits on
expanding tribal control over non-tribal persons and lands,
pollutants, and antidegradation policy to maintain and
and raise concerns regarding impact on state CWA
protect existing uses and high-quality waters.
programs. But tribes say that some states strongly oppose
tribal authority as an infringement on state sovereignty.
Since Congress enacted Section 518(e) in 1987, EPA has
Several states, localities, and industries did oppose the May
authorized 53 of the over 300 tribes with reservation lands
2016 interpretive rule and the September TMDL regulation
to administer a water quality standards program. Of the 53
described above. For example, several states disagreed with
approved tribes, 42 tribes have had their standards approved
EPA’s position in the TMDL rule that tribes need not have
by EPA. One Washington State tribe has EPA-promulgated
applicable water quality standards as a prerequisite for
standards, and EPA has approved Washington, South
administering the 303(d) program; they asserted that
Carolina, and Maine to administer state water quality
standards should be required because lists of impaired
standards on reservations or parts of reservations of six
waters must be based on applicable standards. EPA
tribes. In the absence of applicable state or federal
responded that doing so would establish an unnecessary
standards, the main mechanism for establishing water
burden for tribes seeking TAS eligibility for the program.
quality standards on Indian reservations has been through
the TAS authority of CWA Section 518. Further, it is EPA
EPA’s view is that the best way to protect water quality in
policy that, in the absence of approved standards for
Indian country is for tribes to obtain TAS authority, and its
reservation waters, state water quality standards are used as
recent actions are intended to encourage tribes to do so.
a reference point for EPA-issued discharge permit limits.
Nevertheless, tensions between tribes and others over water
EPA says that for reasons such as lack of resources or
quality protection on reservation lands are likely to persist.
governmental infrastructure to implement environmental
programs, many tribes with reservation lands have been
Claudia Copeland, Specialist in Resources and
unable to apply or have chosen not to apply for TAS to
Environmental Policy
administer a water quality standards program.
IF10488
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Recent EPA Actions to Protect Tribal Water Quality

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