Borders and discharges: regulation of tribal activities under the Clean Water Act in states with NPDES program authority.

AuthorCraig, Robin Kundis
PositionNational Pollution Discharge Elimination System

SUMMARY

Under the federal Clean Water Act, qualifying tribes can receive treatment-as-a-state status (TAS), which allows them to set water quality standards, certify that certain discharges meet those water quality standards, and, after delegation from the Environmental Protection Agency (EPA), administer the Act's National Pollutant Discharge Elimination System (NPDES) permitting program. The EPA generally regulates tribal activities for Clean Water Act purposes before a tribe receives TAS status. However, a number of jurisdictional issues remain unclear, especially where the state has been delegated permitting authority and the tribes within that state are in various stages of receiving TAS status.

Discussions of these issues to date have focused on downstream tribes that enacted more stringent water quality standards than did the EPA in states without delegated Clean Water Act authority. As a result, several issues remain to be resolved in states with permitting authority, such as where a particular discharge is located, whether location is the same for permitting and certification, and what is the effect of state ownership of relevant waterbodies bordering on and within reservations. These may become critical questions in states where the state, the EPA, and various tribes have claims to permitting or certification authority for a certain discharge.

It also remains to be seen whether the EPA, the courts, or the affected states and tribes themselves will be the most effective in resolving the inevitable disputes. Thus far, the general pattern has been for the EPA to resolve the conflict and for courts to follow its lead. The EPA has not committed itself to the role of binding arbitrator, however, and this area of law could become quite complex and unpredictable without an overarching, coherent view of state-tribal relations to protect water quality. As such, state-tribal compacts could offer the best path to comprehensive, peaceful, and logical water quality regulation.

I.

INTRODUCTION

In 1987, Congress amended the Clean Water Act ("CWA")(1) to give recognized Indian tribes more potential authority to protect the waters within their jurisdiction.(2) In the words of the Tenth Circuit:

Congress amended the Clean Water Act to authorize the Defendant EPA

to treat Indian tribes as states under certain circumstances for purposes

of the Clean Water Act. Through the amendment, Congress merged two

of the four critical elements necessary for tribal sovereignty -- water

rights and government jurisdiction -- by granting tribes jurisdiction

to regulate their water resources in the same manner as states. Congress's

authorization for the EPA to treat Indian tribes as states preserves the

right of tribes to govern their water resources within the comprehensive

statutory framework of the Clean Water Act.(3)

Case law interpreting the 1987 amendment and its implications is still limited. Moreover, decisions that do exist have arisen from controversies in states that are not themselves approved to administer the CWA.(4) Such states are a small minority. Only eight states do not have National Pollutant Discharge Elimination System permitting authority.(5)

The dynamics of exercising permit jurisdiction in states with authority to do so differ from the dynamics in states without such authority both before and after tribes receive treatment-as-a-state status ("TAS status"). Most obviously, the state is a third permitting authority, creating issues of jurisdictional boundary-drawing that could quickly multiply, depending on how many tribes are in the state. In contrast, in states without a state permit program, the Environmental Protection Agency ("EPA") generally issues all permits until specific tribes receive their own permitting authority, thereby eliminating many jurisdictional battles.

The existence of a state permit program also changes the dynamics of water quality certifications under section 401 of the CWA.(6) Before a tribe achieves TAS status, the EPA both issues water quality permits and certifies the discharge for activities that take place on the reservation. As soon as a tribe achieves TAS status, it takes from the EPA the power to certify that discharges "originating" within its TAS jurisdiction meet the applicable water quality standards. As long as the EPA continues to issue permits for the tribe, it faces two potential challenges to each permit it issues: 1) from the tribe for effects on water quality within the reservation, and; 2) from the downstream state or states for effects on their water quality.

Finally, states with existing permit program may have a greater ability -- and more incentive -- to negotiate jurisdictional issues with tribes, particularly in situations where the tribes may wish to enact less stringent water quality standards and protections to promote their own interests. Such situations may become more common given the explosion of Indian gaming facilities erected pursuant to the Indian Gaming Regulatory Act of 1988(7) and will probably prompt more water quality agreements between the affected tribes and states.

II.

THE CLEAN WATER ACT AND INDIAN TRIBES

  1. The Clean Water Act's Regulatory System

    In 1972, Congress enacted the Clean Water Act in order "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."(8) To carry out this goal, the Act provides that, "except as in compliance" with its provisions, "the discharge of any pollutant by any person shall be unlawful."(9) In deed, the Act established an ambitious, if impractical, "national goal that the discharge of pollutants into the navigable waters be eliminated by 1985."(10)

    The CWA defines "discharge of a pollutant" to include both "any addition of any pollutant to navigable waters from any point source" and "any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft."(11) "Pollutant" is a broad term, meaning:

    dredged spoil, solid waste, incinerator residue, sewage, garbage,

    sewage sludge, munitions, chemical wastes, biological materials,

    radioactive materials, heat, wrecked or discarded equipment, rock,

    sand, cellar dirt and industrial, municipal, and agricultural waste

    discharged into water.(12)

    A "point source" is "any discernible, confined and discrete conveyance," but "does not include agricultural stormwater discharges and return flows from irrigated agriculture."(13) Finally, "navigable waters," for purposes of the CWA, are "waters of the United States, including the territorial seas."(14) Courts have upheld the EPA's broad interpretation of this term to include, essentially, any water body capable of affecting interstate commerce.(15)

    This collection of definitions effectively prohibits discrete sources of water pollution from adding much of anything to any water body except in compliance with the Act. Compliance with the Act, moreover, means that point sources must comply with two types of water quality protection mechanisms: water quality standards and effluent limitations.(16) Water quality standards are general designations of what level of water quality is desirable for a particular water body based on how that water body is used. As such, a "water quality standard shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses."(17) With regard to intra-state waters, the Act initially required that all states adopt water quality standards within 180 days of October 18, 1972.(18) The EPA set water quality standards initially only if a state failed to do so or if the state's proposed standards would not carry out the Act's purposes.(19) Moreover, even if the EPA promulgated the water quality standards for a given state, either the state's governor or its "water pollution control agency" must review the applicable water quality standards at least once every three years.(20)

    An effluent limitation, in turn, is "any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance."(21) Effluent limitations generally impose on dischargers specific numerical limits for individual pollutants. Initially, effluent limitations for point sources are set with reference to the "best practicable control technology currently available."(22) In other words, the limitations are set with an eye to how much control over the pollutant current technology allows.(23) However, the Act also requires a discharger to meet "any more stringent limitation" that might be necessary "to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations ... or required to implement any applicable water quality standard established" under the Act.(24) In so doing, the Act explicitly emphasizes that it preserves states' rights to regulate water quality within their borders,(25) and courts have interpreted the CWA as allowing states to require a higher level of pollution prevention than may be technologically feasible.(26)

    The mechanism for ensuring that point sources meet both water quality standards and effluent limitations is the National Pollutant Discharge Elimination System ("NPDES") permit.(27) The permit allows regulated discharges of pollutants notwithstanding the Act's general prohibition so long as the discharger complies with all applicable limitations.(28) The EPA received the original authority to issue such permits.(29) However, the CWA also allows any state "desiring to administer its own permit program for discharges into navigable waters within its jurisdiction" to apply to the EPA for such authority.(30) Before the EPA approves a...

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