Tribal Clean Water Act Authority

Support for New Fond du Lac Band Water Quality Standards

The Fond du Lac Band, like any other State or Tribe with “treatment 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 must approve the changes, as they would for a State, in order for them to go into effect.

The revisions to water quality standards proposed by the Fond du Lac Band in September 2018 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 U.S. EPA and peer-reviewed research;
  • Set a new and rigorous standard to protect aquatic life from ammonia toxicity, based on the most recent U.S. 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; and
  • Increase protection of reservation waters from degradation as a result of pollution.

READ the complete Fond du Lac water quality standards revisions and supporting documents

TAKE ACTION to Protect Fond du Lac reservation waters and support tribal authority under the Clean Water Act.

Science Supporting Control of Specific Conductance Pollution

The foundation to protect aquatic life and fish from toxic levels of specific conductance ionic pollution is based on U.S. EPA research in the damaged streams of coal mining areas in Appalachia completed in 2011 and more recent research initiated by Minnesota citizen scientists Bruce Johnson and Maureen Johnson to apply the EPA’s guidance to northeastern Minnesota.

After detailed review of data on pollution and aquatic insect life, the Johnsons’ Report concluded:

In the Minnesota ecoregions discussed in this report, discharge of specific conductance above the level of 300 µS/cm, established as guidance for Appalachian streams is highly likely to result in extirpation of 5% or more of invertebrate genera [of aquatic insects]. Such discharge should be prohibited under Minnesota narrative standards preventing degradation and toxic pollution.

The U.S. EPA reviewed the Johnson & Johnson Report and confirmed its conclusions using independent data sets:

Independent data sets from different decades confirm Johnson and Johnson’s conclusion . .  a benchmark value for SC [specific conductance] in Ecoregion 50 is not expected to be greater than the benchmark for central Appalachia, i.e. 300 µS/cm.

After reviewing various data sets, the U.S. EPA calculated its own provisional hazardous concentration for specific conductance (320 µS/cm). EPA scientists also published in peer-reviewed journals the step-by-step methodology that should be used to protect aquatic life from excessive specific conductance pollution.

WaterLegacy has repeatedly requested that the Minnesota Pollution Control Agency (MPCA) protect fish and aquatic insects from specific conductance caused by mining discharge. We’ve also repeatedly requested that the MPCA take the type of action that Fond du Lac initiated in 2018 to set a water quality standard limiting specific conductance pollution to protect aquatic life.

READ WaterLegacy Comments to the MPCA in State Triennial Review of Water Quality Standards (Feb. 2018) 

READ documents supporting a specific conductance water quality standard here:

Johnson & Johnson, An Evaluation of a Field-Based Aquatic Life Benchmark for Specific Conductance in Northeast Minnesota (Nov. 2015)

S. Cormier, Ph.D., Office of Research and Development U.S. EPA, Review of “An Evaluation of a Field-Based Aquatic Benchmark for Specific Conductance in Northeast Minnesota,” Feb. 4, 2016.

S. Cormier, et al. Step-by-Step Calculation and Spreadsheet Tools for Predicting Stressor Levels that Extirpate Genera and Species, Integrated Env. Assess. & Mgt. (Oct. 2017)

Environmental Justice and Expanding Tribal Authority under the Clean Water Act

Sulfide mining and other industrial activities that destroy wetlands have the potential to affect tribal waters both where the discharge originates and downstream. Pollution and destruction of habitats can impair treaty rights to hunt, fish and gather.

Since 1987, federally recognized tribes have had the right to apply for and obtain Treatment as a State authority under the Clean Water Act. Several Bands of the Lake Superior Chippewa have secured the right to regulate water quality and object to Clean Water Act Section 404 permits that allow wetlands destruction and pollution.

The Clean Water Act allows tribes to object to projects located on the reservation and allows downstream tribes to object to federal permits and enlist the Environmental Protection Agency in determining whether the action will harm reservation water quality. However, this tribal authority has never been exercised to protect tribes from pollution originating off the reservation.

In addition, although many cases recognize a theoretical trust obligation on the part of the federal government to Indian tribes, this obligation is rarely applied to protect tribal resources.

After several months of research, as part of the Environmental Justice and Tribal Environmental Regulation issue of the William Mitchell Law Review in Spring 2015, WaterLegacy’s Advocacy Director/Counsel, Paula Goodman Maccabee, published an article recommending an expansive view of tribal authority under the Clean Water Act to veto, condition, or deny federal permits affecting water quality and reserved tribal treaty rights to hunt, fish and gather.

Read here: TRIBAL AUTHORITY TO PROTECT WATER RESOURCES AND RESERVED RIGHTS UNDER CLEAN WATER ACT SECTION 401 (William Mitchell Law Review Vol 41:2)