Academic journal article Emory Law Journal

Establishing Applicable Water Quality Standards for Surface Waters on Indian Reservations

Academic journal article Emory Law Journal

Establishing Applicable Water Quality Standards for Surface Waters on Indian Reservations

Article excerpt

Introduction

Water is a very important limited natural resource that is fundamental for public health and welfare.1 However, it has been and continues to be threatened by pollution.2 The clean Water Act (cWA) seeks to mitigate this threat by implementing programs to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."3 The CWA regulates discharges from point sources by requiring each point source to obtain a permit under the National Pollution Discharge Elimination System (NPDES) permit program.4 These NPDES permits set effluent limitations-how much of a pollutant may be discharged-based upon the Water Quality Standards (WQS) for the surface waters into which the pollutants are discharged.5 Therefore, setting applicable WQS is an essential component to issuing NPDES permits, achieving the goals of the CWA, and protecting surface waters of the United States for the public.

WQS are either set by a state, a Treatment as a State (TAS) designated tribe, or the Environmental Protection Agency (EPA).6 About half of the states have promulgated WQS for CWA purposes.7 EPA has promulgated WQS for the states that have failed to do so.8 However, most tribes lack WQS for CWA purposes: of the 566 federally recognized tribes, only forty-two have EPAapproved, tribally adopted WQS.9 EPA, recognizing tribes as sovereigns, has not promulgated WQS for surface waters within Indian reservations,10 and most tribes have not applied for TAS status to administer WQS for surface waters within their reservations.11 Without applicable WQS, a major problem arises when a point source seeks to discharge water pollution into an Indian reservation. With over 500 recognized tribes in the United States, the lack of applicable WQS on Indian reservations suggests many water segments throughout the United States are not adequately protected. This Comment argues that EPA ought to promulgate a new rule establishing that EPA Regional Offices12 (Regions) should apply tribally adopted, yet unapproved WQS.

This Comment proceeds in four Parts. Part I provides background on tribal legal authority in the United States and the role of tribal authority in the CWA and WQS. It explains why many Indian reservations lack WQS and how the lack of applicable WQS has left EPA Regions to inconsistently issue NPDES permits on Indian reservations. Because of the inconsistent approaches to issuing NPDES permits on Indian reservations, Part II argues that EPA should promulgate a new rule establishing that Regions shall apply tribally adopted, yet unapproved WQS for NPDES permits on Indian reservations as long as they are protective of downstream state's WQS. This approach best promotes EPA's policy toward tribal sovereignty and the purposes of the CWA. Part III outlines how the new rule would better ensure the protection of tribal waters and promote tribal sovereignty. Part IV concludes by highlighting the benefits of this proposed rule.

I. Background: Tribal Authority and the Clean Water Act

This Comment proposes a solution to the lack of applicable WQS for most surface waters within Indian reservations. A cursory background on tribal legal authority and the CWA helps explain why this regulatory gap exists. Part I presents this background in two sections. Section A explains how tribal legal authority has evolved from the early 1800s to the current era. Section B provides a regulatory overview of the CWA and explains the function of WQS in achieving the purposes of the CWA.

A. Status of Tribal Legal Authority in the United States

In the United States, Indian tribes are considered neither sovereign nations nor states.13 Rather, tribes are an amalgam of the two, which makes unclear the extent to which tribes reign sovereign over their land.14 This section explains the rights tribes have in the United States and then contextualizes these rights into tribal authority over water.

The extent of tribal sovereignty was first articulated by the Supreme Court in the early 1800s. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.