Tribal Clean Water Act Authority
Expanding Tribal Authority under the Clean Water Act
Since 1987, federally recognized tribes have had the right to apply for and obtain treatment as a “State” authority under the Clean Water Act. Tribes can then adopt water quality standards on their reservations, just as states can do within their own borders.
The Clean Water Act protects downstream “States” (which includes tribes with treatment as a state) from upstream activities causing pollution. The Act also requires that permits meet the water quality standards of the downstream State as well as those where a facility is located.
The Clean Water Act should be interpreted both to authorize tribes to object to projects located on their reservations and to empower downstream tribes to object to federal permits. The process of objection by a downstream state begins with notice by the U.S. Environmental Protection Agency (EPA) that an action may harm reservation water quality. However, to date, this tribal authority to object to a federal permit under the Act has never been exercised to protect tribes from pollution originating off the reservation. Sulfide mining and other industrial activities can impair treaty rights to hunt, fish, and gather as well as polluting downstream reservation waters.
Several Bands of the Lake Superior Chippewa have secured treatment as a “State” authority under the Clean Water Act.
In an article that appeared in the “Environmental Justice and Tribal Environmental Regulation” issue of the William Mitchell Law Review in spring 2015, Paula Maccabee, WaterLegacy’s advocacy director and counsel, reviews state and tribal legal authority. The article, written after extensive research and in consultation with tribal staff, recommends an expansive view of tribal authority under the Clean Water Act to veto, condition, or deny federal permits affecting water quality and tribal treaty rights to hunt, fish, and gather.
Implementing Tribal Authority under the Clean Water Act
The Fond du Lac Band of Lake Superior Chippewa has broken new ground in implementing tribal authority under Section 401 of the Clean Water Act.
On June 4, 2021, for the first time in history, the United States Environmental Protection Agency (EPA) made a determination that discharge authorized by a federal permit “may affect” the reservation waters of a downstream tribe with “treatment as a State” authority to set water quality standards. EPA’s determination was that PolyMet discharge may affect Fond du Lac Band reservation water quality under the Band’s standards.
The EPA’s “may affect” determination on behalf of the Fond du Lac Band triggered the following process under the Clean Water Act (33 U.S.C. § 1341(a)(2)):
- The Band, as a downstream State had 60 days to determine whether PolyMet discharge “will affect” its waters so as to cause or contribute to the violation of its water quality standards.
- On August 3, 2021, the Band submitted a determination that PolyMet discharge and wetlands destruction, drying, and rewetting “will affect” its reservation waters and cause or contribute to the violation of the Band’s water quality standards. The Band notified the EPA and the U.S. Army Corps of Engineers that the Band objects to the permit and that the permit should be revoked and not reissued.
- In May 2022, the Army Corps is holding the first hearing ever on a downstream tribe’s objection to a federal permit. In this process, the EPA must make its recommendations in response to the objection, and the Army Corps must condition the permit “as necessary to insure compliance with applicable water quality requirements.”