To clear the muddy waters: tribal regulatory authority under section 518 of the Clean Water Act.

• Author: Cutler, Regina

1. INTRODUCTION

   May 1998. It is spring and the children have come to the river; one thousand fourth-, fifth-, and sixth-grade reservation school students have thrown down their books to gather on the banks of the Flathead River in western Montana to see, smell, touch, and celebrate. They are children of the Flathead Indian Reservation and this is their river, their water, their heritage. It is also now their responsibility.

   The children went to the river to learn the importance of waterways to the Salish, Kootenai, and Pend d'Orielle Tribes and to learn about the natural environment of the Flathead Indian Reservation.(1) These lessons are, in one sense, about erosion and sedimentation, forest ecology, and low-impact camping. In another sense, they are the first steps towards stewardship of the river and other water resources within the Flathead Reservation. In 1995, the United States Environmental Protection Agency (EPA) granted the Confederated Salish and Kootenai Tribes "treatment as state" (TAS) status under the Clean Water Act (CWA),(2) authorizing the tribe to set water quality standards for all navigable waterways within the reservation.(3) The United States Court of Appeals for the Ninth Circuit recently upheld that grant of authority in a landmark case in the field of tribal civil jurisdiction and environmental regulation.(4) As a result, these children will inherit something their parents never had and their ancestors never thought necessary: the right to regulate the water.

   These children will also inherit a long tradition of jurisdictional battles over rights to use, pollute, and regulate reservation waterways, as well as a political quagmire of competing local, state, and federal interests. The Flathead Reservation displays an extreme example of a common feature of reservation geography: members of the Tribe own only about fifty percent of the land within the Reservation boundaries.(5) A variety of nontribal interests own the remaining portion, including municipal and county entities and the State of Montana.(6)

   A significant portion of the Reservation's water quality problems, especially on Flathead Lake, come from municipal and state-owned facilities.(7) As a result, these nontribal entities have an interest in water quality regulation that extends beyond the loss of their right to regulate water quality on the reservation. The Ninth Circuit's decision effectively subjects everyone on the Reservation to all water quality standards that the Tribe may promulgate. Unsurprisingly, nontribal interests vehemently opposed the grant of water quality authority to the Confederated Kootenai and Salish Tribes. However, the anecdotal evidence suggests that tribal regulatory authority, at least on the Flathead Indian Reservation, will reap rewards in terms of water quality that may make it worth the struggle.(8)

   Since 1987 tribes have been able to apply to EPA for recognition and regulatory authority under the CWA. In that year, Congress added section 518 to the CWA, allowing EPA to treat qualified tribes as states for purposes of the Act (TAS status).(9) Recognition of TAS status is program-specific; a tribe may apply for TAS status for purposes of setting water quality standards independent of its status vis-a-vis other CWA programs, such as the National Pollutant Discharge Elimination System (NPDES) permitting program.(10) While program participation, measured in number of TAS approvals, has grown since 1987, tribes have to some extent been reticent to take on the full mantle of regulatory authority. Instead, they have chosen to apply for a variety of monetary grants, formerly available only to states, rather than seeking full regulatory jurisdiction.(11)

   Some of the most significant hurdles standing in the way of full tribal authority in this area are the jurisdictional conflicts that arise when tribal regulation of reservation water resources affects nontribal members who own land or live within reservation boundaries.(12) This conflict lies at the heart of the Flathead controversy and the Ninth Circuit's resolution of that controversy in Montana v. Environmental Protection Agency (Montana v. EPA).(13) While the court resolved the Flathead conflict in favor of tribal sovereignty, the decision in no way represents a blank check for tribal jurisdiction under the CWA.

   This Chapter assesses the extent to which Montana v. EPA resolves or abdicates the jurisdictional questions posed by nontribal ownership of reservation lands under the CWA. Part II reviews the provisions of the CWA as they relate to tribal authority under section 518. Part III presents a brief discussion of tribal sovereignty and civil jurisdiction. Part IV analyzes the most recent confluence of those two streams of law through an examination of Montana v. EPA. This discussion assesses both the Ninth Circuit's approach to the doctrine of inherent sovereignty as it relates to water quality regulation and the court's failure to recognize section 518 as a direct delegation of tribal regulatory authority. Part V concludes that while this case removes a significant barrier to the assertion of tribal authority under the CWA, in avoiding review of the plain language of section 518 the court missed an invaluable opportunity to substantiate the legal basis of tribal regulatory jurisdiction. Continued tribal advancement in the area of environmental regulation will thus depend not on law, but rather on the extent to which EPA continues to advance an Indian policy favoring tribal self-determination and full regulatory authority.

2. THE CLEAN WATER ACT

   1. The Regulatory Program

      The Clean Water Act (CWA)(14) requires states to set water quality standards for waters under their jurisdiction.(15) These standards must include designated water uses,(16) criteria designed to protect those designated uses,(17) and an antidegradation policy.(18) Once established, water quality standards serve two primary functions within the regulatory scheme established by the CWA. First, they are included, along with effluent limitations,(19) in the conditions that must be met by entities discharging pollutants under the National Pollution Discharge Elimination System (NPDES).(20) This program regulates the discharge of pollutants from any point source, which the act defines as any "discernible, confined and discrete conveyance"(21) into the navigable waters of the United States.(22)

      Second, water quality standards play a major role in state certification under section 401 of the Act.(23) Under this section, any federally licensed activity that may result in a discharge into navigable waters must receive certification from the relevant state, certifying that the activity or discharge will comply with that state's water quality standards.(24) Thus, all NPDES permits that EPA issues must first receive certification from the appropriate state.(25)

      Section 401 serves another function as well. States other than the certifying state whose water quality may be affected by the federally permitted activity or discharge have an opportunity through section 401 to object to the issuance of the permit or license. If such activity will violate the water quality standards of a downstream state, the permit or license must be conditioned to ensure compliance with the downstream state's water quality standards.(26) If there are no conditions that the permitting agency can attach to the permit or license that will adequately protect downstream water quality standards, the issuing agency cannot issue the license or permit.(27)

   2. Treating Tribes as States

      In 1987, Congress amended the CWA to allow qualified tribes to receive some of the regulatory authority otherwise delegated to the states.(28) Section 518(e) of the CWA grants EPA the authority to treat qualified tribes as states for a variety of purposes, including establishing water quality standards and issuing NPDES permits.(29) In order for a tribe to be "treated as a state" under this section, the tribe must meet four requirements. The tribe must 1) be federally recognized, 2) have a governing body carrying out substantial duties and powers, 3) have adequate jurisdiction over the water resources for which it seeks program approval, and 4) have the capability to carry out the functions for which the tribe seeks authorization.(30)

      EPA reviews tribal application for CWA program approval on a case-by-case basis; this is due in part to EPA's judgment that while a tribe may qualify for TAS status under one program, the tribe may not be able to qualify under other CWA programs.(31) Thus, TAS status is program specific. For example, a tribe that has been approved for TAS status for purposes of setting water quality standards within its jurisdiction does not automatically gain authority to issue NPDES permits.(32)

3. THE LIMITS OF TRIBAL CIVIL JURISDICTION: INHERENT SOVEREIGNTY

   1. A Unique Kind of Sovereignty

      The administration of federal environmental statutes on tribal lands is complicated by the unique status of Indian tribes as independent but dependent sovereign entities.(33) Tribes generally retain regulatory jurisdiction over matters of tribal self-government and internal relations. Tribes may regulate matters that fall outside this limited scope only under express delegation from Congress.(34)

      This delicate balance is in part a relic of the troubled history of tribal relations in the United States. As early Supreme Court decisions recognized, the discovery and settlement of the "New World" in the late eighteenth and early nineteenth centuries resulted in the conquest of lands previously occupied by Indian nations and the subjection of those lands to exclusive federal power.(35) Indian tribes retained aboriginal title to land in their possession, but this gave the tribes only the right to occupy the land and the federal government could extinguish those rights at any time.(36) The conquest and subsequent treaty relationships...