Tribal Rights under the Clean Water Act (CWA)
What does the clean water act do?
The Clean Water Act (CWA), with its initial laws made in 1948, allows the Environmental Protection Agency (EPA) to set minimum water quality standards for navigable waters within the nation and creates a system for states to voluntarily require stricter standards than the EPA. But what are the water quality rights of tribes under the CWA?
How are tribes affected by the CWA?
Since tribes are not states, the EPA treats tribes as their own independent government as specified in the 1984 Indian Policy, and deals with them on a government-to-government basis. Under the CWA section 518, federally recognized tribes are treated in the same manner as states are if they meet three elements:
- it has a governing body carrying out substantial governmental duties and powers;
- it has appropriate authority; and
- it is (or will be) capable of carrying out the functions of the particular program.
From 1991 to 2016, the EPA had been following strict and stringent guidelines for allowing a tribe to be treated as a state. However, the EPA published a rule in 2016 which summarized their revised interpretation of tribal water quality rights under the CWA. They then released Treatment As a State (TAS) forms for tribes to fill out and submit. If approved, the tribes are then given the same authority as states to set their own parameters for water quality.
What happens when there are different quality standards over the same source of flowing water?
When states downstream of the water have higher water quality standards, the CWA requires the upstream state to accommodate the standards of the downstream state. There have been questions lately within the agricultural community about how tribal rights can influence states where they reside under the CWA.
When there is a disagreement between a state and a tribe, the EPA has laid out a dispute resolution mechanism, under which the EPA is allowed to assign a mediator or set up arbitration, both of which the EPA says will likely be run by EPA staff members. If either party is unwilling to use the recommendation, the EPA applies a default procedure where it simply issues a written recommendation about how they think the disagreement should be solved. Their decision has no enforceability. After exhausting the EPA remedy options, the argument may proceed to court.
Has the EPA made any recent changes to tribal rights under the CWA?
The EPA proposed a rule in November 2022 that says when a state contains water protected for the tribes under any source of federal law, the states must consult with tribes about how to protect the quality of those waters. They held two public hearings for the rule in January 2023, and the comment period ended in March 2023. This rule has moved forward with almost no consultation or approval from states.
The EPA has recently proposed a rule to enact default water quality standards for reservations that do not have their own standards. The EPA has stated that the intention is to treat waters under control of a tribe in a way that preserves cultural and traditional uses of the water. The EPA has refused to define this phrase, which means any form of life in the pond related to traditional tribal activities may be protected, which allows virtually unfettered agency discretion. The proposal states that the EPA will continue their policy of working closely with tribes that wish to develop their own water quality standards. This will potentially allow the EPA to decide on new water quality standards they desire and fly them under the banner of a tribe and their rights. This not only circumvents state power over water within its borders, but now also says the national standard is not good enough for waters under tribal control. Do we really want the EPA to make broad rules that treat tribes differently than the rest of the nation?
What does this mean to agricultural producers in Nebraska?
We already have a national standard set by the EPA for water quality. Three of the four federally recognized tribes in Nebraska have not applied for treatment as a state, meaning the new baseline standard would apply to them. The latest rules proposed by the EPA are broad and ambiguous, and even the EPA has admitted uncertainty as to their reach and application. With the EPA setting new default standards for tribes and stating they will continue to work closely with tribes in developing their standards, it allows the EPA the ability to bypass the power of the state and implement water quality standards they desire without having to claim ownership of the decision. These decisions could influence states that are upstream of the tribes. Rules like this ignore the federalist principles this country is founded on and circumvent state control of the water within their border, allowing the EPA to act as a puppet master. With rules like these, we should all be very alert to how the EPA tries to influence the control over water quality.
