Establishing Applicable Water Quality Standards for Surface Waters on Indian Reservations

• Jurisdiction: United States,Federal
• Publication year: 2017
• Citation: Vol. 66 No. 4

Establishing Applicable Water Quality Standards for Surface Waters on Indian Reservations

Jin Hyung Lee

ESTABLISHING APPLICABLE WATER QUALITY STANDARDS FOR SURFACE WATERS ON INDIAN RESERVATIONS

Abstract

The Clean Water Act is the foundational water law in the United States. It seeks to protect the nation's waters through establishing programs that limit pollutant discharge into surface waters. Water quality standards serve an essential role in protecting the surface waters of the United States because they set effluent limitations necessary to reduce pollutant discharge and to maintain the designated uses of the surface waters. Although all states have water quality standards for surface waters that run through their respective boundaries, most tribes lack water quality standards that are applicable for establishing effluent limitations under the Clean Water Act. With over 500 federally recognized tribes in the United States, the lack of water quality standards for surface waters that run through many of these tribes' lands undermines surface water protection.

This Comment proposes a solution to this regulatory gap in the Clean Water Act. It suggests the Environmental Protection Agency ought to promulgate a new rule making tribal water quality standards applicable for Clean Water Act programs even though they may not have been approved by the Agency.

This Comment begins with a historical background of tribal authority over water quality and a discussion of the current status of water quality standards implementation on Indian reservations. By exploring the reasons for and the consequences of the lack of applicable water quality standards on Indian reservations, this Comment then explains how its proposal will alleviate the problems associated with protecting water quality on Indian reservations and ensure that tribal rights to waters are secured.

[Page 966]

Introduction..............................................................................................967

I. Background: Tribal Authority and the Clean Water Act ... 968

A. Status of Tribal Legal Authority in the United States................ 969
B. Regulatory Overview of the CWA and WQS.............................. 971

1. States Are Delegated Responsibility of Developing WQS ... 972
2. CWA § 518 Allows Tribes to Establish WQS ...................... 973

II. The Current Status of WQS Within Indian Reservations.....977

A. WQS Within Indian Reservations .............................................. 977

1. Impact of Tribal Sovereignty and EPA's Indian Policy on Implementation of § 518...................................................... 978
2. Impact of the Montana Test Requirement on Establishing Applicable WQS Within Indian Reservations...................... 980

B. Implementation of NPDES Permits on Indian Reservations: Which WQS Apply? ................................................................... 981
C. Justification of the Regions' Approaches .................................. 984

1. Application of State WQS.................................................... 984
2. Application of Federally Recommended Water Quality Criteria ................................................................................ 985
3. Application of Tribally Adopted, yet Unapproved WQS ..... 986

III. EPA Should Promulgate a New Rule Stating that Regions Ought to Apply Tribally Adopted, yet Unapproved WQS as Long as the Tribal WQS Are at Least Protective of The Downstream State's WQS............................................................990

A. EPA Correctly Reinterpreted § 518........................................... 991
B. Consistent with EPA's Indian Policy and Guidance Documents Concerning Tribes .................................................. 993
C. Consistent with the Principles of Tribal Sovereignty ................ 994
D. Consistent with the Purposes of the CWA ................................. 994
E. EPA's Proposed Rule: Federal Baseline WQS for Indian Reservations .............................................................................. 996

IV. Implications.....................................................................................998

A. Greater Protection of Tribal Waters ......................................... 998
B. Further Respect for Tribal Sovereignty ..................................... 999
C. Advance Environmental Justice for Indians ............................ 1000

Conclusion................................................................................................1001

Appendices.................................................................................................1003

[Page 967]

Introduction

Water is a very important limited natural resource that is fundamental for public health and welfare.¹ However, it has been and continues to be threatened by pollution.² The Clean Water Act (CWA) seeks to mitigate this threat by implementing programs to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."³ The CWA regulates discharges from point sources by requiring each point source to obtain a permit under the National Pollution Discharge Elimination System (NPDES) permit program.⁴ These NPDES permits set effluent limitations—how much of a pollutant may be discharged—based upon the Water Quality Standards (WQS) for the surface waters into which the pollutants are discharged.⁵ Therefore, setting applicable WQS is an essential component to issuing NPDES permits, achieving the goals of the CWA, and protecting surface waters of the United States for the public.

WQS are either set by a state, a Treatment as a State (TAS) designated tribe, or the Environmental Protection Agency (EPA).⁶ About half of the states have promulgated WQS for CWA purposes.⁷ EPA has promulgated WQS for the states that have failed to do so.⁸ However, most tribes lack WQS for CWA purposes: of the 566 federally recognized tribes, only forty-two have EPA-approved, tribally adopted WQS.⁹ EPA, recognizing tribes as sovereigns, has

[Page 968]

not promulgated WQS for surface waters within Indian reservations,¹⁰ and most tribes have not applied for TAS status to administer WQS for surface waters within their reservations.¹¹ Without applicable WQS, a major problem arises when a point source seeks to discharge water pollution into an Indian reservation. With over 500 recognized tribes in the United States, the lack of applicable WQS on Indian reservations suggests many water segments throughout the United States are not adequately protected. This Comment argues that EPA ought to promulgate a new rule establishing that EPA Regional Offices¹² (Regions) should apply tribally adopted, yet unapproved WQS.

This Comment proceeds in four Parts. Part I provides background on tribal legal authority in the United States and the role of tribal authority in the CWA and WQS. It explains why many Indian reservations lack WQS and how the lack of applicable WQS has left EPA Regions to inconsistently issue NPDES permits on Indian reservations. Because of the inconsistent approaches to issuing NPDES permits on Indian reservations, Part II argues that EPA should promulgate a new rule establishing that Regions shall apply tribally adopted, yet unapproved WQS for NPDES permits on Indian reservations as long as they are protective of downstream state's WQS. This approach best promotes EPA's policy toward tribal sovereignty and the purposes of the CWA. Part III outlines how the new rule would better ensure the protection of tribal waters and promote tribal sovereignty. Part IV concludes by highlighting the benefits of this proposed rule.

I. Background: Tribal Authority and the Clean Water Act

This Comment proposes a solution to the lack of applicable WQS for most surface waters within Indian reservations. A cursory background on tribal legal authority and the CWA helps explain why this regulatory gap exists. Part I presents this background in two sections. Section A explains how tribal legal authority has evolved from the early 1800s to the current era. Section B

[Page 969]

provides a regulatory overview of the CWA and explains the function of WQS in achieving the purposes of the CWA.

A. Status of Tribal Legal Authority in the United States

In the United States, Indian tribes are considered neither sovereign nations nor states.¹³ Rather, tribes are an amalgam of the two, which makes unclear the extent to which tribes reign sovereign over their land.¹⁴ This section explains the rights tribes have in the United States and then contextualizes these rights into tribal authority over water.

The extent of tribal sovereignty was first articulated by the Supreme Court in the early 1800s.¹⁵ The Court established that Indian nations were not independent, foreign nations, but rather were "domestic dependent nations."¹⁶ Tribes were to look to the federal government for protection; the United States, as trustee of tribal land, was held responsible for ensuring that tribal resources were protected.¹⁷ Although the Court considered tribes to be "completely under the sovereignty and dominion" of the United States,¹⁸ the Court added further nuance to the tribes' dependent status in Worcester v. Georgia.¹⁹ The Court in Worcester acknowledged Indian nations as "distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied [sic] by the United States."²⁰ Therefore, under this principles of tribal sovereignty, tribes have exclusive authority within Indian territory unless precluded by the federal government.²¹ States may not infringe on this tribal authority.²²

[Page 970]

The Supreme Court contextualized the principles of tribal sovereignty to a tribe's right to water in Winters v. United States.²³ The case concerned whether a downstream tribe could restrain an upstream state from diverting water...