CHAPTER 16 TRIBAL PROGRAMS UNDER THE CLEAN WATER ACT: REGULATORY DESIGN CONSIDERATIONS

• Jurisdiction: United States

Mineral Development On Indian Lands
(Feb 1989)
CHAPTER 16
TRIBAL PROGRAMS UNDER THE CLEAN WATER ACT: REGULATORY DESIGN CONSIDERATIONS^*
B. Leigh Price, Jr.
Administrator, Indian Legal Programs Arizona State University College of Law
Tempe, Arizona

This decade has witnessed the rise of a new phenomenon with novel implications for both Indian tribes and environmental protection: the entry of tribal governments into the federal regulatory scheme for water pollution control. That tribes are deeply and intimately concerned with reservation water quality is hardly new. What is unprecedented is that tribes are exercising regulatory powers in a subject area as technically complex and administratively sophisticated as modern environmental management.

Similarly, the tribal entry into a regulatory arena that had previously been the near-exclusive province of federal and state governments causes problems of adjustment that are new to EPA and the states. Perhaps this is best seen from the perspective of the EPA and the states themselves. At the beginning of the decade, EPA oversaw a national regulatory scheme designed for the federal government and the fifty states. When EPA, in 1983, confronted the fact that the states generally lack adequate jurisdiction¹ to assume regulatory responsibility for Indian reservations, the Agency faced a national environmental protection scheme with virtually no lawful regulatory presence on the nation's 278 Indian reservations.² In short, the Agency found itself as manager of a national program that simply did not work in an extensive area larger than all of New England.

To its credit, EPA responded with an Indian Policy³ that proposed to fill the gap through involvement of tribal governments in the regulatory process. Congress subsequently amended the Clean Water Act to authorize EPA to work in

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partnership with Indian Tribes.⁴ While these federal steps produced a workable and rational design for filling the gaps in the Nation's environmental protection the actual task of implementation raises a variety of legal and resource implications that are only now beginning to surface.

In this paper I address the problem of program development from the point of view of the tribal official or tribal attorney whose task it is to design a regulatory program to protect reservation water quality. I will briefly describe the legal framework, as it is found in federal statutes, regulations and guidelines, under which a water quality program must be designed.⁵ I then compare and contrast the state program as a model for tribal programs and identify several collateral factors that exert a strong legal and political influence on any effective regulatory design. Specifically, I will consider such factors as need, resources, expertise, scale, regulation of non-Indians and relations with neighboring states.

I. Statutory Framework

This Section outlines the statutory and regulatory rules that govern state and tribal participation in the core regulatory programs of the Clean Water Act (CWA).⁶ Readers are cautioned that the discussion is not exhaustive. As explained below, it focuses on the core activities of promulgating water quality standards and issuing and enforcing permits regulating the discharge of pollutants into reservation waters. It does not provide detailed analysis of other important programs concerned with the construction of waste-water treatment facilities, clean lakes, wetlands, etc.

A. The Federal/State Partnership

The regulatory scheme embodied in CWA involves a cooperative alliance between State and Federal governments.⁷ The Indian amendment,⁸ which was added in 1987 as an afterthought, extends the statute's concept of federal/state partnership to Indian tribes and reservations — that is, it envisions a federal/tribal partnership that serves to protect reservations environments. The core of the CWA's regulatory program concerns the prevention

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and control of pollutants in the navigable waters of the United States.⁹ While there are numerous regulatory programs written into the Clean Water Act,¹⁰ the ones of central importance to tribal governments involve setting water quality standards (WQS) for reservation waters and issuing and enforcing permits to control discharges of pollutants.

In the federal/state partnership, the state's role usually involves identifying stream segments,¹¹ setting WQS for those stream segments,¹² issuing permits to pollution sources, controlling discharges in a manner designed to ensure that the assigned water quality standard is not exceeded,¹³ and enforcing against unpermitted pollution sources or pollution sources that discharge in violation of the terms of a permit.¹⁴

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The CWA contemplates that states will set their own WQS.¹⁵ Under the CWA, a WQS is subject to the approval of the EPA.¹⁶ The only preconditions to approval are that the WQS must comply with the WCA generally,¹⁷ the state must hold public hearings,¹⁸ and the State Attorney General or other appropriate authority must certify that the WQS has been adopted pursuant to state law.¹⁹

The state's regulatory program to implement and enforce the WQS is set forth in what is referred to as a "Water Quality Management Plan" (WQM plan), which is also subject to EPA approval.²⁰ To obtain EPA approval of the WQM plan, the state must designate and identify the agencies necessary to carry out the plan.²¹ The designated agency must demonstrate that it has the (1) legal, (2) institutional, (3) managerial, and (4) financial capability and authority to carry out the plan,²² including authority necessary for intergovernmental cooperation.²³ Although Indian tribal organizations do not generally operate via designated agencies as states do, they must nevertheless demonstrate the same capability and authority required of a designated state agency.

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In general terms, to obtain EPA approval the WQM plan itself must at a minimum include: (1) the process for developing effluent limitations and schedules of compliance, (2) the process for incorporating applicable area-wide waste treatment plans, (3) the process for developing Total Maximum Daily Loads (TMDLs), (4) the process for updating and maintaining the WQM plans, (5) the process for establishing and assuring implementation, (6) the process for assuring adequate controls over the disposition of residual waste from water treatment, (7) the process for inventorying, ranking and prioritizing waste treatment works, (8) the process for determining the priority of NPDES permit issuance, (9) the identification and anticipation of municipal and industrial waste treatment works, and (10) non-point source management controls.²⁴ States are also now required to coordinate with Indian Tribal organizations to the maximum extent feasible.²⁵ The NPDES permitting program which is part of the WQM plan has its own pre-requisites and requirements.²⁶

The federal role in the federal/state partnership is largely one of technical support and administrative oversight. The EPA, for example, publishes water quality criteria, which give information on the effects of water pollutants on health and welfare,²⁷ and effluent guidelines and standards, which provide information on the degree of pollution reduction attainable through the use of technology that is available or achievable.²⁸ Moreover, the EPA sets requirements for, approves, and monitors state water quality standards,²⁹ state permit programs,³⁰ and state enforcement activity.³¹ Where the state fails to carry out its role adequately, the EPA has responsibility to establish standards,³² manage permit programs,³³ and enforce against

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unpermitted pollution sources or sources acting in violation of their permits.³⁴ In a related supervisory function, the EPA is concerned with transboundary issues.³⁵

Under the regulatory model of the CWA, for example, the federal government would determine the amount of dissolved oxygen necessary for a stream to support a cold water fishery, whereas state government would determine whether a specific stream should support such a fishery, or whether the social and economic costs of regulating pollution sources along the stream would make such a high standard of water quality an unacceptable luxury. Having balanced such factors, the state might well make a decision that the stream need only be of such water quality as is needed for industrial purposes. The federal government, in effect, was assigned technical decisions that would theoretically be as valid in Maine as in California, while states were assigned decisions balancing local aesthetic, recreational, health and economic interests.

It should be noted that tribal governments have been quick to realize the central importance of control over the decision-making process — that is, the government with power to set water quality standards for reservation streams controls the future water quality of the reservation. Permitting, inspecting, and the taking of civil or criminal action against reservation polluters are necessary control functions, but the overriding factor on which all other activities depend is the preliminary decision as to what the water quality of reservation waters should be.

For tribal governments, of course, the over-arching question has become one of whether the states or the tribes themselves should make those political decisions balancing economic interests against interests of human health and public welfare on the reservations. Who, after all, should determine the future of water quality on the reservations: state government or tribal government? The states take a wide variety of positions on this question, ranging from undisguised hostility towards tribal governments to active support in assisting tribes to assume regulatory control over reservation environments. The tribes

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have seen the question as one of survival:³⁶ not only is the...