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.
Support for New Fond du Lac Band Water Quality Standards
The Fond du Lac Band, like any other state or tribe that is treated as a “State,” periodically reviews its water quality standards to ensure that they are up-to-date and reflect current science to protect water quality, health, and aquatic ecosystems. These water quality standards protect water on the reservation from both on-reservation and upstream sources of pollution.
The U.S. Environmental Protection Agency (EPA) must approve the changes, as they would for a state, in order for them to go into effect. In September 2018, the Fond du Lac Band proposed changes to strengthen Reservation water quality standards, that would accomplish the following:
- Prohibit changes in water levels or habitat alterations that would impair wild rice and other plants or animals culturally important to the Band.
- Set a new and rigorous standard (300 µS/cm) to protect aquatic life from specific conductance ionic pollution based on the most recent EPA and peer-reviewed research.
- Set a new and rigorous standard to protect aquatic life from ammonia toxicity, based on the most recent EPA data.
- Apply the most current science to assess and prevent excess nitrogen and phosphorus from harming aquatic life.
- Protect the biological, physical, chemical and hydrological characteristics of wetlands from degradation.
- Increase protection of reservation waters from degradation as a result of pollution.