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

recently taken several actions intended to strengthen water

quality protection within Indian reservations. Three

actions—(1) issuance of an interpretive rule in May 2016,

(2) promulgation of another rule in September, and (3)

request for comment on another possible rule also in

September—are described by EPA as part of a broad effort

to narrow gaps in water quality protection in Indian

country. While these initiatives are widely supported by

tribal interests, they raise concerns with some states, local

governments, and industries. States have primary

responsibility for protecting water quality within their

borders except in Indian country where civil regulatory

authority generally lies with the federal government and the

relevant tribe, not with the states.

Recognizing Indian Tribes in a Similar

Manner as a State

Section 518(e) of the Clean Water Act (CWA) (33 U.S.C.

1377(e)) authorizes EPA to treat eligible federally

recognized Indian tribes in a similar manner as a state (i.e.,

“treatment as a state,” or TAS) for the purposes of receiving

grants under several funding authorities and administering

certain regulatory programs of the act. Section 518(h)

defines “Indian tribe” to mean any Indian tribe, band,

group, or community recognized by the Secretary of the

Interior and exercising governmental authority over a

federal Indian reservation. It also defines “federal Indian

reservation” to mean all land within the limits of any

reservation under the jurisdiction of the U.S. government,

notwithstanding the issuance of any patent, and including

rights-of-way running through the reservation (33 U.S.C.

1377(h)). According to EPA, tribes can seek TAS with

respect to water resources over all land within a reservation,

including, for example, land held in trust by the United

States for a tribe, land owned by or held in trust for a

member of the tribe, and land owned by non-tribal

members.

The federal government has recognized 567 tribes. Over

300 of these tribes have reservation lands such as formal

reservations, Pueblos, and informal reservations (i.e., lands

held in trust by the United States for tribal governments that

are not designated as formal reservations), but less than

25% have sought TAS status.

CWA Section 518(e) establishes eligibility criteria for TAS,

including that the tribe has a governing body carrying out

substantial governmental duties and powers and that it has

jurisdiction over the media or objects sought to be

regulated. EPA promulgated several rules establishing TAS

criteria and procedures for Indian tribes interested in

administering CWA programs, beginning in 1991.

According to EPA, since that time, it has taken what it

characterizes as a cautious approach to approving TAS

applications by requiring tribes to demonstrate on a caseby-case basis their inherent authority under principles of

Indian law that the tribe has jurisdiction to regulate under

the CWA, especially inherent tribal authority over nonmember activities within a reservation. Inherent authority,

or sovereignty, refers to the principle that powers lawfully

vested in tribes, such as self-government, are not in general

delegated powers granted by express acts of Congress.

In May 2016 EPA issued an interpretive rule that revised its

long-standing interpretation requiring TAS applicants to

demonstrate their inherent authority to regulate under the

CWA (see U.S. Environmental Protection Agency,

“Revised Interpretation of Clean Water Act Tribal

Provision,” 81 Federal Register 30183-30198, May 16,

2016). Under its reinterpretation, EPA concluded that CWA

Section 518 includes an express delegation of authority by

Congress to Indian tribes to administer CWA regulatory

programs over their entire reservations, subject to the

eligibility requirements in Section 518, and that a

demonstration of inherent authority is not required.

EPA had concluded that demonstrating inherent authority

over non-member activities on a reservation creates an

unintended administrative burden on applicant tribes and

requires substantial commitments of tribal and federal

resources. The agency has long viewed Section 518(e) as

expressing Congress’s preference for tribal regulation of

reservation waters. EPA believes that the May 2016

interpretive rule will streamline the process of applying for

TAS status, and it estimates that 12 tribes per year would

apply under the rule. The rule was based in part on the

agency’s interpretation of similar Clean Air Act provisions

(42 U.S.C. 4201(d)) that, according to EPA, federal courts

have held provide an express congressional delegation of

authority to eligible tribes to protect environmental

resources (see 81 Federal Register 30186-30187).

TAS for Purposes of TMDLs

As described previously, EPA has issued rules establishing

a process for federally recognized tribes that have TAS

status to then obtain TAS for regulatory provisions of the

CWA, such as developing water quality standards (40

C.F.R. 131.8), issuing water quality certification (40 C.F.R.

131.4(c)), and issuing discharge permits (40 C.F.R. 123.3134). In September 2016, EPA finalized a companion to

these procedural rules with a regulation enabling eligible

tribes to obtain authority to identify impaired waters on

their reservations and to establish total maximum daily

loads (TMDLs), as states routinely do for non-Indian land

waters (See U.S. Environmental Protection Agency,

“Treatment of Indian Tribes in a Similar Manner as States

for Purposes of Section 303(d) of the Clean Water Act,” 81

Federal Register 65901-65917, September 26, 2016.)

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Recent EPA Actions to Protect Tribal Water Quality

CWA Section 303(d) requires states and approved tribes to

identify waters that are impaired by pollution, even after

application of technology-based controls (33 U.S.C.

1313(d)). For those waters, states and approved tribes must

establish a TMDL to ensure that water quality standards can

be attained. A TMDL is both a quantitative assessment of

pollution sources and pollutant reductions needed to restore

and protect U.S. waters and a planning process for attaining

water quality standards. A TMDL can result in imposition

of additional pollutant discharge limits on sources. (For

information, see CRS Report R42752, Clean Water Act and

Pollutant Total Maximum Daily Loads (TMDLs)). By

obtaining TAS status for Section 303(d), tribes can take the

lead role in identifying impaired waters on their

reservations and in establishing TMDLs. In the absence of

TAS approval under this rule, EPA or a state would have

this responsibility for such waters.

The 2016 rule does not require anything of tribes that are

not interested in seeking TAS status for the 303(d) program,

and EPA acknowledges that not all tribes will be interested

in doing so. The rule also does not require tribes seeking

TAS eligibility for the 303(d) program to have previously

obtained EPA approval for TAS to develop water quality

standards or require tribes to have EPA-approved standards

for their reservation waters in place.

Federal Baseline Water Quality

Standards for Indian Reservations

Water quality standards are the fundamental building

blocks of the CWA. Established by states or authorized

tribes and approved by EPA, they define a state’s water

quality goals and are the basis of enforceable discharge

permits. They also provide the benchmark against which

impaired waters are identified and TMDLs are developed.

Water quality standards consist of designated uses or goals

for protection of the waterbody (such as fishing, swimming,

or public water supply), narrative and numeric limits on

pollutants, and antidegradation policy to maintain and

protect existing uses and high-quality waters.

Since Congress enacted Section 518(e) in 1987, EPA has

authorized 53 of the over 300 tribes with reservation lands

to administer a water quality standards program. Of the 53

approved tribes, 42 tribes have had their standards approved

by EPA. One Washington State tribe has EPA-promulgated

standards, and EPA has approved Washington, South

Carolina, and Maine to administer state water quality

standards on reservations or parts of reservations of six

tribes. In the absence of applicable state or federal

standards, the main mechanism for establishing water

quality standards on Indian reservations has been through

the TAS authority of CWA Section 518. Further, it is EPA

policy that, in the absence of approved standards for

reservation waters, state water quality standards are used as

a reference point for EPA-issued discharge permit limits.

EPA says that for reasons such as lack of resources or

governmental infrastructure to implement environmental

programs, many tribes with reservation lands have been

unable to apply or have chosen not to apply for TAS to

administer a water quality standards program.

EPA contends that there is a gap in water quality protection

under the CWA for waters on Indian reservations. Thus, in

a September 2016 Federal Register Notice, the agency

sought the public’s views on whether and how it should

initiate a rulemaking to establish federal baseline water

quality standards for Indian reservation waters that do not

have EPA-approved standards. (See U.S. Environmental

Protection Agency, “Federal Baseline Water Quality

Standards for Indian Reservations, Advance notice of

proposed rulemaking,” 81 Federal Register 66900-66911,

September 29, 2016.) The Notice did not provide details of

a proposed rule. Rather, EPA requested comment on

questions such as (1) should EPA establish one set of water

quality standards that apply universally to reservation

waters or offer limited tailoring opportunities; (2) what

designated uses should be established in any federal

baseline standards; and (3) what pollutant criteria limits

should be included to protect aquatic life and human

health? The comment deadline is December 28, 2016. EPA

will then decide whether to proceed with a rulemaking.

Concerns of States, Localities, Industries

EPA’s recent actions and announcements concerning tribal

water quality protection likely intensify long-standing

jurisdictional tensions and conflicts between some tribes

and states, local governments, and industries. When tribes

obtain TAS status, they can adopt more protective water

quality standards than states may have set for adjacent

waters, potentially affecting common waterbodies and nonmembers with activities on reservation lands. Further,

because the CWA allows states to adopt water quality

requirements such as discharge permit limits more stringent

than federal rules, a tribe that has TAS status for permitting

could similarly do so (however, no tribe has such authority

now; EPA issues CWA permits in Indian country).

These situations can create challenges for industry, by

expanding tribal control over non-tribal persons and lands,

and raise concerns regarding impact on state CWA

programs. But tribes say that some states strongly oppose

tribal authority as an infringement on state sovereignty.

Several states, localities, and industries did oppose the May

2016 interpretive rule and the September TMDL regulation

described above. For example, several states disagreed with

EPA’s position in the TMDL rule that tribes need not have

applicable water quality standards as a prerequisite for

administering the 303(d) program; they asserted that

standards should be required because lists of impaired

waters must be based on applicable standards. EPA

responded that doing so would establish an unnecessary

burden for tribes seeking TAS eligibility for the program.

EPA’s view is that the best way to protect water quality in

Indian country is for tribes to obtain TAS authority, and its

recent actions are intended to encourage tribes to do so.

Nevertheless, tensions between tribes and others over water

quality protection on reservation lands are likely to persist.

Claudia Copeland, Specialist in Resources and

Environmental Policy

IF10488

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Recent EPA Actions to Protect Tribal Water Quality

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