Academic journal article Environmental Law

To Clear the Muddy Waters: Tribal Regulatory Authority under Section 518 of the Clean Water Act

Academic journal article Environmental Law

To Clear the Muddy Waters: Tribal Regulatory Authority under Section 518 of the Clean Water Act

Article excerpt

I. INTRODUCTION

May 1998. It is spring and the children have come to the river; one thousand fourth-, fifth-, and sixth-grade reservation school students have thrown down their books to gather on the banks of the Flathead River in western Montana to see, smell, touch, and celebrate. They are children of the Flathead Indian Reservation and this is their river, their water, their heritage. It is also now their responsibility.

The children went to the river to learn the importance of waterways to the Salish, Kootenai, and Pend d'Orielle Tribes and to learn about the natural environment of the Flathead Indian Reservation.(1) These lessons are, in one sense, about erosion and sedimentation, forest ecology, and low-impact camping. In another sense, they are the first steps towards stewardship of the river and other water resources within the Flathead Reservation. In 1995, the United States Environmental Protection Agency (EPA) granted the Confederated Salish and Kootenai Tribes "treatment as state" (TAS) status under the Clean Water Act (CWA),(2) authorizing the tribe to set water quality standards for all navigable waterways within the reservation.(3) The United States Court of Appeals for the Ninth Circuit recently upheld that grant of authority in a landmark case in the field of tribal civil jurisdiction and environmental regulation.(4) As a result, these children will inherit something their parents never had and their ancestors never thought necessary: the right to regulate the water.

These children will also inherit a long tradition of jurisdictional battles over rights to use, pollute, and regulate reservation waterways, as well as a political quagmire of competing local, state, and federal interests. The Flathead Reservation displays an extreme example of a common feature of reservation geography: members of the Tribe own only about fifty percent of the land within the Reservation boundaries.(5) A variety of nontribal interests own the remaining portion, including municipal and county entities and the State of Montana.(6)

A significant portion of the Reservation's water quality problems, especially on Flathead Lake, come from municipal and state-owned facilities.(7) As a result, these nontribal entities have an interest in water quality regulation that extends beyond the loss of their right to regulate water quality on the reservation. The Ninth Circuit's decision effectively subjects everyone on the Reservation to all water quality standards that the Tribe may promulgate. Unsurprisingly, nontribal interests vehemently opposed the grant of water quality authority to the Confederated Kootenai and Salish Tribes. However, the anecdotal evidence suggests that tribal regulatory authority, at least on the Flathead Indian Reservation, will reap rewards in terms of water quality that may make it worth the struggle.(8)

Since 1987 tribes have been able to apply to EPA for recognition and regulatory authority under the CWA. In that year, Congress added section 518 to the CWA, allowing EPA to treat qualified tribes as states for purposes of the Act (TAS status).(9) Recognition of TAS status is program-specific; a tribe may apply for TAS status for purposes of setting water quality standards independent of its status vis-a-vis other CWA programs, such as the National Pollutant Discharge Elimination System (NPDES) permitting program.(10) While program participation, measured in number of TAS approvals, has grown since 1987, tribes have to some extent been reticent to take on the full mantle of regulatory authority. Instead, they have chosen to apply for a variety of monetary grants, formerly available only to states, rather than seeking full regulatory jurisdiction.(11)

Some of the most significant hurdles standing in the way of full tribal authority in this area are the jurisdictional conflicts that arise when tribal regulation of reservation water resources affects nontribal members who own land or live within reservation boundaries. …

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