Wisconsin’s 11 federally recognized tribes administer water standards in multiple ways – through individual tribal conservation, environmental, and natural resource departments; through inter-tribal organizations such as the Great Lakes Indian Fish and Wildlife Commission; and through delegated Clean Water Act (CWA) regulation and enforcement.
Because of these various regulatory roles, tribes are important players not only for those living in reservations, but also for states, individuals, corporations, and other organizations that share jurisdiction over or use of waterways with tribes.
This article focuses on tribal administration of water quality under the CWA, where a long-unsettled question concerning Environmental Protection Agency (EPA) interpretation of the statute is muddying the waters.
Treatment as State to Administer Water Quality Standards
In 1987, Congress amended the CWA to allow tribes to receive delegated authority – similar to states – to administer various regulatory and enforcement provisions of the CWA.1 Authorities include setting and certifying water quality standards (WQS),2 issuing National Pollutant Discharge Elimination System (NPDES) permits,3 and issuing dredge or fill permits.4 EPA first delegated CWA authority over WQS to a tribe in 1992.
Robert Lundberg, is a 3L at U.W. Law School and a master’s student at the U.W.’s Nelson Institute for Environmental Studies, where he focuses on water law and its intersection with tribal environmental issues.
Currently, EPA has found 60 tribes nationally and three in Wisconsin eligible to set WQS, with 44 nationally and three in Wisconsin having promulgated EPA-approved WQS. This is still a small portion of the 573 currently federally-recognized tribes in the U.S.
The authority to set WQS has broad implications. Not only must NPDES permittees who discharge pollutants in a reservation meet tribal standards, but state-permitted dischargers upstream of the reservation must as well.5 This means state, federal, and tribal regulators all must ensure permits they issue and oversee will not cause WQS in downstream jurisdictions to be exceeded. If states or tribes don’t account for downstream WQS, EPA has a dispute resolution system to harmonize multiple WQS on a single water body.6
The statute and EPA’s implementing rule7 list several requirements tribes must meet to administer a WQS program. A tribe must demonstrate:
1) federal recognition
2) a “governing body carrying out substantial governmental duties and powers”
3) the borders of its reservation and authority to regulate the territory therein, and
4) that it is reasonably expected to be capable of administering a WQS program in accordance with the CWA and EPA regulations.
Even tribal trust lands separate from a formal reservation qualify for delegation under this provision.8
An unsettled question regarding the third requirement has existed since the EPA rule was promulgated in 1991.
Previously, EPA interpreted the CWA as requiring a tribe to affirmatively demonstrate jurisdiction and authority over the territory it sought to set WQS for – including property owned by nonmembers in the reservation.
In 2016, EPA promulgated an interpretive rule stating the CWA contains a delegation of congressional authority to tribes to set WQS for an entire reservation. This was meant to simplify the process by removing the need for an affirmative showing of jurisdiction by a tribe.
However, the reinterpretation has not definitively streamlined the process.
EPA hoped this reinterpretation would speed up the application process and encourage more tribes to seek CWA delegated authority. The rate for tribes found eligible to administer WQS has increased in the last two years: from an average of 2.2 tribes per year prior to the reinterpretation, to 3.5 per year after.
It’s unclear whether tribes approved since the change began their applications before or after this reinterpretation. Thus, the increase may not be directly or fully attributable to the change. No Wisconsin tribes have been approved since the rule change.
Under either interpretation, as applications are made to EPA Regional Administrators, there may be perceived differences in likelihood of approval region-to-region.
Uncertainties of the New Interpretation
There are several concerns with the 2016 reinterpretation.
First, it is an interpretive rule, though it did go through a notice and comment process. However, as an interpretive rule, EPA could attempt to change or rescind it without notice and comment, which is particularly important given the shift in EPA leadership since 2016.
Second, as a new rule, it has not been subjected to judicial scrutiny. Several states challenged EPA’s interpretation in comments to the proposed rule.
Third, given the continued lack of clarity over the scope of Waters of the United States regulated by the CWA, relying on delegated federal authority rather than demonstrated inherent tribal authority could result in confusion or disputes as to the waters over which tribes have authority to set WQS.
Additionally, relying only on delegated authority could be interpreted as a diminishment of a tribe’s sovereignty. Thus, some Indian law practitioners suggest continuing to follow the previous process of affirmatively demonstrating inherent tribal authority in addition to, or rather than, federally delegated authority.
This lack of clarity on exactly how far tribal WQS jurisdiction extends and on what authority or authorities it is based has implications beyond tribal regulators. The DNR must be mindful of tribal WQS in state NPDES permitting, just as it must be of downstream states’ standards. Further, corporate and municipal NPDES permittees must also be mindful of tribal standards when applying for or renewing permits.
Even if applicability of a tribal WQS is indirect or not clear, permit applicants should be aware of these standards to avoid potential disputes and delays in the permit process.
As many tribes continue to grow their regulatory capacity and seek delegated authority under EPA’s new interpretive rule, this issue will likely persist until a more permanent answer is presented – be it through rulemaking, legislation, litigation, or simply wider acceptance of the 2016 interpretation.
1 33 U.S.C. § 1377(e) (2012)
2 33 U.S.C. §§ 1313, 1341 (2012)
3 33 U.S.C. § 1342 (2012)
4 33 U.S.C. § 1344 (2012)
5 See Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001); City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996); Richard A. Monette, Treating Tribes as States under Federal Statutes in the Environmental Arena: Where Laws of Nature and Natural Law Collide, 21 Vt. L. Rev. 111, 143 (1996).
6 See 40 C.F.R. § 131.7 (2018)
740 C.F.R. § 131.8(a)(1)-(4) (2018)
8 56 Fed. Reg. 64876 (Dec. 12, 1991) (citing Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 510 (1991)) (“EPA considers trust lands formally set apart for the use of Indians to be ‘within a reservation’ for purposes of section 518(e)(2), even if they have not been formally designated as ‘reservations.’”); 81 Fed. Reg. 30183 (May 16, 2016) (“[T]ribal trust lands qualify as reservation lands for CWA TAS purposes. All such lands are thus within the borders of an Indian reservation for purposes of the statute.”).