Environmental Protection Agency streamlines tribal water process

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

The Environmental Protection Agency has finalized a rule aimed at making it easier for more tribes to develop water quality standards.

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.

The streamline the process, tribes no longer have to demonstrate that they in fact have the "inherent" authority to regulate waters on their reservations, according to a notice that was published in the Federal Register on May 16.

"Its only effect will be to reduce the administrative burden for a tribe applying in the future to administer a CWA regulatory program, and to potentially increase the pace at which tribes seek such programs," the notice of the new rule stated.

According to the notice, 18 tribes, three tribal organizations, two states and members of the public supported the new rule. Some states and local governments raised questions about tribal jurisdiction and the ability of Congress to "delegate" authority to tribes but the EPA said those issues have already been addressed by the federal courts.

"The Supreme Court has long recognized Congress' broad power to delegate authority to Indian tribes, including the authority to regulate the conduct of nonmembers of the tribes," the EPA said in the notice.

The rule became effective on May 16 so tribes can already benefit from the streamlined process.

"Right now the majority of Indian reservations do not have water quality standards to protect public health and the environment," EPA Administrator Gina McCarthy told tribal leaders earlier this year. "That is a shocking thing to say and it's something that we need to fix as soon as possible."

Federal Register Notices:
Revised Interpretation of Clean Water Act Tribal Provision (May 16, 2016)
Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act (January 19, 2016)
Revised Interpretation of Clean Water Act Tribal Provision (August 7, 2015)

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