Regulating Tribal Waters Without Attacking Tribal Sovereignty

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Scholar argues that the Clean Water Act can protect water resources and tribal jurisdiction.

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Throughout its history, the United States has inflicted many atrocities on Indigenous nations, from outright massacres to forced assimilation. But today, intervention by the U.S. government could actually help protect Native Americans and promote tribal sovereignty.

That is the argument made in a recent article urging the U.S. Environmental Protection Agency (EPA) to issue water quality standards for Indian country. This federal intervention by EPA would protect tribes from lawsuits while building tribal capacity to regulate water resources, argues James Grijalva, a professor at the University of North Dakota School of Law.

EPA and the Clean Water Act are uniquely deferential to tribal sovereignty, claims Grijalva. EPA was the first federal agency to embrace an official Indian Policy, which says that tribes should be “the primary parties for setting standards, making environmental policy decisions and managing programs for reservations.”

The Clean Water Act’s permitting program gives states the authority to regulate water pollution from point sources, such as discharge pipes. The Act measures a waterway’s health through water quality standards. These standards tailor pollutant limits for each body of water, depending on how humans and aquatic species use and interact with it.

Although both state and federal authorities administer the Clean Water Act, the law recognizes that states “lack regulatory authority over Indians in Indian country unless clearly authorized to do so.” As a result, EPA-approved state permits do not apply to Indian lands. EPA is also authorized to “treat an Indian tribe as a State” by directly overseeing each tribe’s water programs and blocking interference from “other” states.

Moreover, EPA has enabled tribes to exercise their jurisdiction over non-Indians and non-Indian land within reservation boundaries. EPA’s key water quality regulation entitles every tribe to set its own permitting requirements, so long as it can meet a “simple burden” of showing that reservation surface waters are used by tribe members and that non-Indian water pollution would have a “serious and substantial effect” on tribal welfare.

But an overwhelming majority of tribes have not applied for “tribe as state” status under the Clean Water Act, and only fifteen percent of eligible tribes are currently subject to water quality standards—leaving about 260 tribes and an area the size of New England underregulated.

This regulatory gap implicates environmental justice and public health concerns. Tribe members catch and consume fish at higher rates than the average U.S. population and may have additional exposure to contaminated water through their cultural practices.

Grijalva argues that because these 260 tribes are analogous to states that have failed to submit Clean Water Act permit applications, they have triggered EPA’s duty to “promptly prepare” and administer federal water quality standards. Congress requires EPA to create such standards “in any case” where unregulated water pollution fails to meet the law’s requirements. Grijalva says that by proactively mandating permitting standards for tribes, EPA could both bring tribal waters into compliance and preserve tribal values in three important ways.

First, by partnering with EPA to administer the Clean Water Act, tribes may avoid litigation with states and industry interests. Grijalva speculates that many tribes have avoided issuing their own water standards due to a fear of lawsuits challenging their sovereignty: “Some states still resent the presence of Indian country within their borders and their limited authority there, and robotically react to tribal exercises of governmental authority with taxpayer-funded lawsuits.”

But when states sue EPA for “wrongly” treating neighboring tribes as states—often by approving heightened water quality standards for tribal lands—states name EPA as the sole or lead defendant. This insulates tribes from most financial or legal consequences. The fact that EPA has won a significant majority of “tribe as state” suits may help to protect tribes in court. For example, in Montana v. EPA, the appeals court held that the Salish & Kootenai Tribes’ water value judgments are enforceable under federal law, with the same legal status as state standards.

Second, tribes that are treated as states under the Clean Water Act may be better positioned to protest outside pollution. If a state, or a “tribe as a state,” has a more stringent water permit than its upstream neighbor, then the law requires the neighboring jurisdiction to attain and maintain downstream standards. By cooperating with EPA, tribes could use this feature to create a “buffer” between tribal waters and off-reservation pollution sources.

Finally, Grijalva notes that although EPA’s Indian Policy empowers the agency to pursue “direct implementation” of the Clean Water Act on tribal lands, EPA also frames direct agency action as merely an interim solution until tribes develop their own capacity to take over. If EPA mandates tribal water quality standards but also provides tribes with financial and technical resources, tribal governments may soon be capable of administering programs themselves.

For their part, tribes argue that treating tribes as de facto states would make it easier to develop water quality standards. As the National Tribal Water Council commented, “Water is Life” for the many tribes, and they have a clear cultural interest in its protection. But tribes claim that EPA’s “challenging, time consuming and costly” requirements for tribes seeking “tribe as state” status pose the “greatest administrative burden” to their initial engagement in water regulation.

Ultimately, political realities may impact whether EPA-tribal partnerships prioritize the transfer of regulatory control to tribes. In late 2016, EPA published a notice of proposed rulemaking which deferred to tribal sovereignty by emphasizing tribes’ freedom to set water quality standards above EPA baselines. But the proposed rule evaporated four months later once President Donald J. Trump took office. Under the Trump Administration, EPA circulated a memo which encouraged local governments adjacent to Indian country to comment on—and presumably protest—tribes’ efforts to gain “tribe as state” status and the power to define their own water quality standards.

Although other scholars share Grijalva’s hope that tribes can work with federal agencies to improve tribal water resources and health, the degree to which tribal sovereignty is respected—or undermined—may depend on the priorities of the new Biden Administration.