EPA proposal aims to streamline recognition of tribal authority

Paguate Lake at Laguna Pueblo in New Mexico. Photo from Laguna Pueblo Natural Resources

Tribes across the nation are supporting a proposed Environmental Protection Agency rule that makes it easier for them to regulate water quality on their reservations.

Section 518(e) of the Clean Water Act (CWA) recognizes the authority of tribes to develop standards for waters on their lands. But the EPA notes that less than 15 percent of eligible tribes have gone through the lengthy treatment as state process (TAS) since 1991.

To make it easier, the proposed rule eliminates one major step in the process. Tribes no longer have to demonstrate that they in fact have the inherent authority to regulate waters on their reservations, the EPA announced last month.

"The proposal would reduce the burden on applicant tribes and advance cooperative federalism by facilitating tribal involvement in the protection of reservation water quality as intended by Congress," the August 7 notice in the Federal Register states.

"EPA anticipates that this proposed action, if finalized, could significantly reduce the time and effort for tribes to develop their TAS applications, and could encourage more tribes to apply for TAS for CWA regulatory programs," the agency added.

The Penobscot River runs through the Penobscot Nation in Maine. Photo by Cheryl Daigle

The proposal has drawn praise from tribes in Arizona, California, Colorado, Idaho, Maine, Michigan, Minnesota, New Mexico, New York, Washington and Wisconsin. Leaders say it will save time and help avoid potential litigation over their regulatory powers.

"The most time-consuming portion of preparing the TAS application was the demonstration, required by EPA's current interpretation of CWA § 518(e), that the Pueblo has authority to administer its standards within its reservation," Governor Virgil A. Siow of Laguna Pueblo in New Mexico wrote in a comment to the agency.

The tribe submitted its application over a year ago. The EPA hasn't made a decision but Siow wished the proposed rule had been in place at the time.

"This interpretation also might have expedited the approval process, which is still ongoing, and it would significantly reduce the likelihood of litigation arising in the future from tribal assertions of CWA regulatory jurisdiction over non-Indians, saving time and resources for this reason as well," Siow wrote of the EPA's re-evaluation of Section 518(e).

Some states, though, are objecting. Maine Attorney General Janet Mills -- who is opposing efforts by tribes to prosecute non-Indian domestic violence offenders -- called the proposal "unlawful."

From left: Navajo Nation President Russell Begaye, Environmental Protection Agency Administrator Gina McCarthy and Navajo Nation Vice President Jonathan Nez, examine conditions on the San Juan River in August 2015. Photo from Facebook

"It is now well-established that the state of Maine has environmental regulatory authority and jurisdiction over all waters in the state, including any waters in or near tribal territories," Mills wrote in a comment to the EPA.

Mills argues that her state is in a unique situation because the Maine Indian Claims Settlement Act of 1980. subjects certain reservations to state law. The law includes a provision that she claims prevents laws like the Clean Water Act and the Violence Against Women Act from applying to Maine unless Congress specifically mentions the state.

"In light of this unique tribal-state relationship in Maine, EPA's proposed revised interpretation of Section 518 would be unlawful and contrary to express Congressional intent with respect to Maine," Mills wrote.

The Oklahoma Department of Environmental Quality submitted a document that challenged the application of the Clean Water Act in a state that is home to 39 tribes.

"The reason for this is simple," the document read. "There are no 'reservations' within the state of Oklahoma due to Congressional and executive actions in the late 19th and early 20th centuries."

Black Bear Creek on the Pawnee Nation in Oklahoma. Photo from Pawnee Nation

According to the department, tribes could conceivably regulate waters on their trust lands. But since those parcels are typically non-contiguous, the state argues that the proposed rule doesn't make sense for the state.

"Any attempt by EPA to allow tribes to regulate CWA programs in Oklahoma in the absence of a specific identification of trust lands will result in needless regulatory confusion, jurisdictional entanglements within the State and possible litigation," the department said.

Tribes in Oklahoma are already treated differently than those in nearly every other state due to a policy rider that was inserted into an unrelated transportation law without consultation or public hearings. The provision -- which was drafted by Sen. Jim Inhofe (R-Oklahoma), the current chairman of the Senate Committee on Environment and Public Works -- effectively grants the state veto authority of any tribal TAS application.

Inhofe wrote the rider after the EPA was about to recognize the authority of the Pawnee Nation under the Clean Water Act. No tribe in Oklahoma will be able to regulate their waters without the agreement of the state and without being subjected to a public hearing on its TAS application.

A view of the Wind River Reservation in Wyoming. The state is challenging the approval of treatment of state applications for the Eastern Shoshone Tribe and the Northern Arapaho Tribe under the Clean Air Act. Photo from JGHowes / Wikipedia

In addition to the Clean Water Act, the Clean Air Act recognizes tribal authority to develop air quality standards. The EPA does not require tribes to demonstrate their authority over their reservations for TAS applications under that law so the proposed rule would create a unified policy.

Public comments on the EPA's rule are being accepted until October 6.

Federal Register Notice:
Revised Interpretation of Clean Water Act Tribal Provision (August 7, 2015)

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