Borders and Discharges: Regulation of Tribal Activities Under the Clean Water Act in States with NPDES Program Authority
68 Pages Posted: 6 Oct 2008
Date Written: 2000
Under the federal Clean Water Act, qualifying tribes can receive treatment-as-a-state status (TAS), which allows them to set water quality standards, certify that certain discharges meet those water quality standards, and, after delegation from the Environmental Protection Agency (EPA), administer the Act's National Pollutant Discharge Elimination System (NPDES) permitting program. The EPA generally regulates tribal activities for Clean Water Act purposes before a tribe receives TAS status. However, a number of jurisdictional issues remain unclear, especially where the state has been delegated permitting authority and the tribes within that state are in various stages of receiving TAS status.
Discussions of these issues to date have focused on downstream tribes that enacted more stringent water quality standards than did the EPA in states without delegated Clean Water Act authority. As a result, several issues remain to be resolved in states with permitting authority, such as where a particular discharge is located, whether the location is the same for permitting and certification, and what is the effect of state ownership of relevant water bodies bordering on and within reservations. These may become critical questions in states where the state, the EPA, and the various tribes have claims to permitting or certification authority for a certain discharge.
It also remains to be seen whether the EPA, the courts, or the affected states and tribes themselves will be the most effective in resolving the inevitable disputes. Thus far, the general pattern has been for the EPA to resolve the conflict and for courts to follow its lead. The EPA has not committed itself to the role of binding arbitrator, however, and this area of law could become quite complex and unpredictable without an overarching,coherent view of state-tribal relations to protect water quality. As such, state-tribal compacts could offer the best path to comprehensive,peaceful, and logical water quality regulation.
Keywords: Clean Water Act, tribe, Indian, TAS, treatment as a state, NPDES, National Pollutant Discharge Elimination System, jurisdiction, water quality standards, permit, certification, Section 401, Section 402
Suggested Citation: Suggested Citation