Borders and Discharges: Regulation of Tribal Activities under the Clean Water Act in States with NPDES Program Authority

Abstract

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. …