EPA Gives Tribes more Authority Regarding Clean Water Act Programs on Reservations

Swamp Stomp

Volume 16, Issue 43

On September 26, the Environmental Protection Agency (EPA) finalized a rule, Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act (Final Rule), which gives tribes the authority to control the Clean Water Act (CWA) section 303(d) program within their reservations.  The 303(d) necessitates states and now maybe tribes to create lists of impaired waters within their jurisdiction and to put together Total Maximum Daily Loads (TMDL) for those waters.  TMDL states the total pollution impaired waters can take on while still complying with other EPA CWA programs.  Final Rule gives “treatment in a similar manner as states” (TAS) status which would allow them to administer 303(d) program.  Before Final Rule, the EPA was handling the 303(d) program on Indian Reservations.

This would not be the first Clean Water Act program that would have TAS authority provisions. “For example, tribes are authorized under the CWA and EPA’s regulations to develop water quality standards (“WQS”) under CWA section 303(c); receive waste management treatment grants; conduct nonpoint source management; administer the national pollutant discharge elimination system (“NPDES”); regulate the discharge of dredged or fill material under section 404; and direct sewage sludge management programs under section 405” (Bartlett and Compton).

On October 26, 2016, the Final Rule takes effect and tribes may start applying for TAS status regarding the administration of the 303(d) program.  “Project developers and others seeking CWA permits may encounter several challenges once the Final Rule is in effect.  For example, similar to a state’s list of impaired waters and TMDLs, a tribe may choose to develop lists of waters and TMDLs that are more stringent than federal standards.  Additionally, it is possible that there will be two TMDLs standards to take into account when seeking permits or other CWA authorizations in certain parts of the country: the state and the tribal standards” (Bartlett and Compton).

The Final Rule is one of many last ditch attempts by the Obama Administration to improve relations between the federal government and American Indian tribes.  In addition to the Final Rule, the EPA has revised its overarching interpretation of the CWA TAS provision, released an interagency agreement on tribal treaty rights to advance tribal sovereignty and self-determination, and announced that it is awarding Native communities $2 million to address Brownfields.  The president has also recently signed into law the Native American Tourism and Improving Visitor Experience Act (NATIVE Act).  The NATIVE Act requires federal agencies to update their management and tourism plans to include Indian tribes, tribal organizations, and Native Hawaiian organizations.  In addition, since early September, in the wake of the Dakota Access Pipeline protests, the Departments of the Interior, Justice and the Army have been reviewing federal permitting and authorization procedures as they relate to tribal consultation.  The purpose of the review is potentially an effort to alter the existing regulatory and statutory schemes.  In October, the federal government and tribal leaders will officially start engagement on the consultation process.

Source: Bartlett, Erin K., and Maranda S. Compton. “EPA Expands Tribal Authority to Administer Clean Water Act Programs on Reservations.” The National Law Review. The National Law Review, 29 Sept. 2016. Web. 14 Oct. 2016.

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