EPA’s New Rule Eases Tribe’s Ability to Apply for Treatment As a State Status Under the Clean Water Act

Over the last thirty-five years, American Indian tribes have slowly forged a relationship with the Environmental Protection Agency (“EPA”). This began in 1980, when the EPA released a policy statement holding tribes to federal environmental standards.[1] Since then, however, only a small percentage of tribes have met the qualifications needed to carry out the Clean Water Act (“CWA”) through government-to-government partnerships.[2] In response to this shortcoming, this past August, the EPA proposed a new rule that reinterprets Section 518 of the CWA titled “Revised Interpretation of Clean Water Act Tribal Provision.”[3] Specifically, the new rule aims to relieve American Indian tribes’ burden of demonstrating inherent regulatory authority under the Montana test in order to apply for Treatment as a State (“TAS”) status under Section 518(e) of the CWA. The new interpretation will streamline the process for Indian tribes to manage water quality within their reservations, including managing water quality on nonmember fee simple land.

The EPA’s newly proposed rule marks a shift in what responsibilities tribes have in regard to federal environmental regulations. Congress passed the CWA in 1972 demonstrating its ongoing commitment to maintain the integrity and health of the national water supply.[4] In the 1970s, the federal government passed a number of environmental laws that mostly ignored, or hardly mentioned American Indian tribes.[5] Similarly, the original CWA omitted American Indian nations, although it is a broad, nationwide statute. In response to this oversight, Congress started incorporating tribes into various environmental statutes’ framework.[6]

In 1987, concerns about pollution on Indian Country prompted Congress to add a TAS provision to the CWA.[7] Under this amendment, the regulatory agency may treat a qualifying American Indian nation similar to a state government when creating and approving a reservation’s water quality standards (“WQS”). Moreover, the TAS provision permits qualifying tribes to apply for certain grants[8] and programs including National Discharge Elimination System (“NPDES”) permits,[9] nonpoint source management,[10] and dredge and fill permits.[11]

In 1991, the EPA promulgated the water quality standards TAS rule, which explains the WQS and CWA certification programs for tribes under Section 303(c) of the Clean Water Act.[12]  The TAS rule requires a tribal nation to meet certain criteria before it can effectively regulate water quality under the CWA.[13]  Federal recognition is the first requirement for a tribal applicant.[14] Moreover, a tribe is required to demonstrate the capability of carrying out substantial lawmaking responsibilities and authority over reservation land, as defined in Section 518(h)(1). Last, a tribe should have appropriate regulatory authority over the reservation’s water quality, in addition to demonstrating its ability to implement the CWA program.[15]

The EPA’s new rule aims to reduce the burden on tribes through cooperative federalism within the TAS process.[16] This effort to delegate American Indian tribes more autonomy in managing water quality standards implicates a landmark Supreme Court decision, Montana v. United States, which held that in the absence of a federal grant of authority, a tribe presumptively lacks inherent jurisdiction over the activities of nonmembers on nonmember fee land.[17] This is land owned by non-Indians, who are not members of the tribe. However, the Supreme Court defined two exceptions to this jurisdictional rule. The Court determined that a tribe could exercise civil jurisdiction over nonmember activities within its reservation in two limited exceptions. First, where the nonmember enters into a consensual relationship with the American Indian tribe or its individual members, through a lease, contract, commercial deal, or other type of arrangement, an exception to tribal jurisdiction is permitted. Second, the tribe may retain jurisdiction when the nonmember activity has a direct effect on or threatens the political stability, economic security, or the general welfare or health of the tribe.[18]

The Montana test has had wide-ranging implications for tribal governments to exercise consistent regulatory authority, environmental or otherwise, over the entire reservation, as many nonmembers own land within the parameters of these lands. In an effort to conserve both the EPA’s and tribal resources, the EPA will no longer require a tribe to meet the Montana test. Within its statement about the Revised Interpretation, the EPA stated, “tribal applications for reservations with nonmember fee lands, which require an analysis of tribal inherent authority under Montana, took 1.6 years longer to be approved, on average, than applications for reservations without such lands.”[19]

Consequently, a tribe will not have to demonstrate its inherent authority to regulate water within its reservation boundaries.[20] Instead, the EPA will permit an applicant tribe to rely on Congress’s delegation of inherent authority under Section 518 in order to establish its tribal sovereignty in regulating its land and waters without having to distinguish between member and nonmember land.[21]

The EPA’s new rule demonstrates important progress in Indian Country for two reasons. First, by treating tribal nations similarly to states recognizes inherent tribal sovereignty. The EPA’s new rule reflects the federal government’s modern trend of treating tribes similarly to a state government in delegating administrative authority. This delegation of authority is a product of the Self-Determination Era, which commenced with President Richard Nixon’s 1970 speech to the Congress on Indian Affairs.[22] The federal government helps in promoting and recognizing tribal self-governance through government-to-government partnerships.[23] The Self-Determination Era refers to somewhat of an American Indian “nation-building” movement, which included establishing tribal governments, courts, police forces, and schools.

Second, the Revised Interpretation is important because only about forty of the 300 Indian Tribes with reservations have obtained the EPA’s approval for TAS status.[24]  This is not to say that tribes cannot regulate their waters without TAS approval, but the EPA’s recognition provides further funding and certification programs to help legitimize and strengthen tribal water management. Tribes generally lack a tax base upon which to develop water management, but with TAS recognition, tribes receive money for water management projects. Thus, allowing tribes with ‘checkerboard’ reservations (that is reservations with large swaths of both member and nonmember land) to bypass the Montana test will make it easier for tribes to receive funding from the federal government for maintaining and improving reservation water quality.

Overall, alleviating this administrative barrier will make it easier for tribes to implement CWA programs targeted at reservation water quality.  It will save tribes both time and resources in their TAS applications, as well as relieve the EPA of identifying on a case-by-case basis whether an individual tribe can meet the Montana test.  Moreover, this rule should encourage more American Indian tribes to apply for TAS status in order to successfully implement CWA programs.[25] This is an important step because clean water is paramount to Indian tribes, not just for sustenance, but also for spiritual, medicinal, and cultural reasons.[26] For example, the most recent tribe to receive TAS status, the Santa Ana Pueblo, views the water within their New Mexico reservation as important for maintaining its own cultural heritage.

Comments for this new rule closed on October 6, 2015. The EPA should make a final determination on whether or not it will implement the Revised Interpretation soon, but the agency has not provided a precise timeline.

Kathleen (K.C.) Cunilio

The featured image is of Dead Horse Point on the Colorado River.  This photo belongs to Clement Bardot.  Use of his photo does not represent his endorsement of the Water Law Review.


Sources:

[1]  Washington, Dep’t of Ecology v. U.S.E.P.A., 752 F.2d 1465, 1471 (9th Cir. 1985) (quoting the Environmental Protection Agency announcement titled  EPA Policy for Program Implementation on Indian Lands released Dec. 19, 1980).

[2]  Revised Interpretation of Clean Water Act Tribal Provision, 80 Fed. Reg. 47430-02, 47430–31 (Apr. 7, 2015).

[3]  Id.

[4]  33 U.S.C. § 1251 (2015).

[5]  Dean B. Suagee, Tribal Self-Determination and Environmental Federalism: Cultural Values As A Force for Sustainability, Widener L. Symp. J., Fall 1998, at 229, 232.

[6]  Id. at 233.

[7]  33 U.S.C. § 1377 (2015).

[8]  See, e.g., 40 C.F.R. 35.580-88 (2016); 40 C.F.R. 35.600-15 (2016); 40 C.F.R. 35.630-38 (2016).

[9]  33 U.S.C.  § 1377(f).

[10]  Id.

[11]  Id. at § 1344.

[12]  Amendments to the Water Quality Standards Regulations That Pertain to Standards on Indian Reservations, 54 Fed. Reg. 39098-01 (Sept. 22, 1989).

[13] Requirements for Indian Tribes to administer a water quality standards program, 40 C.F.R. § 131.8 (2015).

[14]  Amendments to the Water Quality Standards Regulations That Pertain to Standards on Indian Reservations, 54 Fed. Reg. 39101 (Sept. 22, 1989).

[15]  Id.

[16]  Revised Interpretation of Clean Water Act Tribal Provision, 80 Fed. Reg. 47430-02, 47433 (Aug. 7, 2015).

[17]  450 U.S. 544 (1981).

[18]  Id. at 565-66.

[19]  Revised Interpretation of Clean Water Act Tribal Provision, 80 Fed. Reg 47430-02 , 47436 (Aug. 7, 2015).

[20]  Id. at 47437.

[21]  Id.

[22]  Richard Nixon: “Special Message to the Congress on Indian Affairs,” July 8, 1970, available at http://www.presidency.ucsb.edu/ws/?pid=2573.

[23]  25 C.F.R. § 1000.4 (2016)(Congressional policy on tribal self-government).

[24]  Pueblo of Santa Ana Granted Federal Authority to Protect Water Quality, United States Environmental Protection Agency (Jul. 22 2015), http://yosemite.epa.gov/opa/admpress.nsf/0/0DC659BDC3EFBC5685257E8A0056A0A2 (last visited Dec. 13, 2015).

[25]  Id.

[26]  Marren Sanders, Clean Water in Indian Country: The Risks (and Rewards) of Being Treated in the Same Manner As A State, 36 Wm. Mitchell L. Rev. 533, 553 (2010).