Tribes delegated air, water authority in California, Nevada, Oregon, and Arizona: potential impacts on development and resource use on and off the reservation
February, 2008
In the past six months, four Indian tribes[i] received delegations of authority under the Clean Water Act ("CWA")[ii] and the Clean Air Act ("CAA")[iii] to regulate water and air quality on reservations in California, Nevada, Oregon, and Arizona. The Twenty-Nine Palms Band of Mission Indians and the Pyramid Lake Pauite Tribe became the thirty-eighth and thirty-ninth federally recognized tribes to be granted "Treatment as a State" under the CWA.[iv] The Confederated Tribes of the Umatilla Indian Reservation was only the second federally recognized tribe to be granted authority to regulate air quality on its reservation under the CAA, and the Gila River Indian Community was the first tribe in the nation to develop a Tribal Implementation Plan ("TIP").[v] These delegations to tribes may have significant impacts on future development and resource use both on, and off, the reservations.
Overview of Delegations of Federal Authority
In 1984 the Environmental Protection Agency ("EPA") adopted its Policy for the Administration of Environmental programs on Indian Reservations ("Indian Policy").[vi] Under the Indian Policy, EPA committed itself to supporting tribal assumption of environmental programs under federal statutes through the recognition of tribal governments as the entities with primary authority for setting standards, making environmental policy decisions, and managing programs for reservations consistent with agency standards and regulations.[vii] Since EPA adopted the Indian Policy, Congress has amended three of the environmental statutes EPA administers, explicitly authorizing the treatment of tribes in the same manner as states for purposes of implementing environmental programs: the Safe Drinking Water Act[viii], the CWA and the CAA.
Additionally, three other federal environmental laws provide for a limited tribal role similar to that provided to states: the Federal Insecticide, Fungicide and Rodenticide Act,[ix] the Emergency Response and Community Right to Know Act,[x] and the Comprehensive Environmental Response, Compensation, and Liability Act.[xi] Where Congress has not provided specifically for tribal assumption of authority, EPA has determined that the decision to allow tribal management of environmental programs is within the Agency's discretion. Examples of EPA's exercise of its discretionary authority to allow tribal management include the Resource Conservation and Recovery Act[xii] and the Toxic Substance Control Act.[xiii]
To qualify for a treatment in the same manner as a state ("TAS") designation, a tribe must meet the following criteria: (1) the tribe must be recognized by the Secretary of Interior; (2) the tribe's government body must be carrying out substantial governmental duties and functions; and (3) the tribe must have the jurisdiction and capability to carry out the proposed activities.[xiv]
The Twenty-Nine Palms Band of Mission Indians, with a reservation consisting of two southern California properties in Riverside County in the city of Coachella and in San Bernadino County between Twenty-Nine Palms and Joshua Tree; and the Pyramid Lake Pauite Tribe, located outside Reno, Nevada,[xv] are the latest tribes to qualify for TAS designation under the CWA. The TAS designations authorizes the tribes to develop and adopt water quality standards which, once approved, will form the basis for water quality effluent limitations and other requirements for discharges to waters within the tribes' jurisdiction. Tribal water quality standards may be, and often are, more stringent than federal water quality standards.[xvi] The TAS designations also authorize the tribes to grant or deny certification for federally permitted or licensed activities that may affect waters within the borders of their reservations.[xvii]
The Confederated Tribes of the Umatilla Reservation's TAS designation under the CAA is limited, delegating authority only for designating "burn days" and issuing burn permits for agriculture, forest, and residential burns, including burn barrels.[xviii] The Umatilla Tribe's 271.047 square mile reservation is located seven miles east of Pendleton, Oregon. The Gila River Tribe's TIP is a comprehensive air quality plan for attaining and maintaining national air quality standards for six common air pollutants[xix] on the tribe's 600 square mile central Arizona reservation.
Impact on Off-Reservation Resource Use and Development
Indian tribes occupy a distinct political and legal status in the United States as separate, sovereign nations[xx] with the inherent authority to regulate activities affecting their reservation environments. Although tribal nations possess "attributes of sovereignty over both their members and their territory,"[xxi] the Supreme Court has ruled repeatedly that Congress retains unlimited and absolute power over tribes.[xxii] The result is that Indian tribes exist as dependent wards subject to the sovereign guardianship of the United States.[xxiii] With few exceptions, this dependent status generally precludes the extension of tribal civil authority beyond the limits of a tribe's members and reservation boundaries.
The environmental concerns of tribes, however, typically extend beyond the boundaries of their reservations, and are not limited to the activities of tribal members. Such concerns may be the result of off-reservation environmental hazards that pose dangers on-reservation or may be the consequence of environmental hazards that begin within the reservation's territorial limits. And, just as a tribe's environmental concerns may extend off-reservation, so may its authority to regulate.
Under the CWA, tribes with TAS authority are the entities from which Section 401 certifications must be sought for projects requiring a federal license or permit to conduct any activity that may result in any discharge into navigable waters over which the tribe has jurisdiction.[xxiv] Certification may be denied where the discharge, if permitted, would violate tribal water quality standards, and no permit will issue if certification is denied.[xxv]
The power to impose conditions on federal permits, or even to block projects where such a project would not comply with tribal water quality standards is not limited to projects located on the reservation: Dischargers located upstream of tribal lands may be required to comply with an authorized tribe's downstream water quality standards.[xxvi]
Similarly, tribes with delegated CAA authority may regulate air quality on lands within the reservation that are owned in fee by non-tribal members.[xxvii] And, tribes may redesignate reservation lands to protect reservation air quality against transboundary air pollution from upwind sources through construction permits for specified new sources and source modifications.[xxviii] For example, the Northern Cheyenne Tribe in southeastern Montana redesignated its reservation as a Class I attainment area, giving the reservation's air quality the level of protection afforded national parks and wilderness areas. This redesignation led to the installation of wet scrubbers on two units of a Montana Power power plant located 15 miles from the reservation in order to prevent violations of the tribe's Prevention of Significant Deterioration ("PSD") increment for sulfur dioxide.[xxix]
Implications
Whether on or off reservation, Indian tribes are increasingly playing a central role in decisions related to the environment to ensure protection of reservation air and water quality and the tribe's natural resources. Tribal and non-tribal interests operating or developing projects on or adjacent to reservation lands and waters need to be aware of a tribe's regulatory authority, and its ability to impact a project under the CWA and the CAA.
For more information, please contact Connie Sue Martin.
[i] In October, 2006 EPA Region 9 announced its approval of the Twenty-Nine Palms Band of Mission Indians' application to administer federal Clean Water Act programs on tribal lands. In November, 2006 EPA Region 10 delegated authority for regulating open burning on tribal lands to the Confederated Tribes of the Umatilla Indian Reservation, effective January 1, 2007. In February, 2008 EPA Region 9 announced its approval of the Pyramid Lake Pauite Tribe's application to administer federal Clean Water Act programs on tribal lands, and its acceptance of the Gila River Indian Community's Tribal Implementation Plan, "a blueprint of how to achieve improved air quality on tribal lands," according to EPA Region 9's February 21, 2007 press release.
[ii] 33 U.S.C. §§ 1251 et seq.
[iii] 42 U.S.C. §§ 7401 et seq.
[v] Twenty tribes have received delegations of some authority under the CAA. EPA Tribal Air Program Basic Information, http://www.epa.gov/oar/tribal/background.html. Tribes have express authority under the CAA to manage air quality on their reservations. The Tribal Authority Rule, codified at 40 C.F.R. parts 9, 35, 49, 50, and 81 (1999), identifies those portions of the CAA for which a tribe may be authorized to be treated in the same manner as a state, describes the eligibility requirements for TAS recognition under the CAA, and identifies financial assistance available to tribes interested in pursuing a tribal air quality program. A tribe may develop its own Tribal Implementation Plan ("TIP") for approval by EPA. Once approved, a TIP is legally binding under both tribal and federal law, and may be enforced by the tribe, the EPA, or the public. The Gila River Tribe's TIP is an example of this. Other CAA programs for which tribes may receive delegated authority include the Title V permit program, New Source Performance Standards, and National Emission Standards for Hazardous Air Pollutants. EPA Tribal Air Program Basic Information, http://www.epa.gov/oar/tribal/background.html.
[vi] William D. Ruckelshaus, November 8, 1984.
[vii] Indian Policy, ¶ 2.
[viii] 42 U.S.C. §§ 300f – 300j - 26.
[ix] 7 U.S.C. § 136 et seq.
[x] 42 U.S.C. §§ 11001 et seq.
[xi] 42 U.S.C. § 9601 et seq.
[xii] 42 U.S.C. § 6901 et seq.
[xiii] 15 U.S.C. § 2601 et seq.
[xiv] 33 U.S.C. § 1377(e).
[xv] The Pyramid Lake Paiute Tribe's reservation encompasses Pyramid Lake, the largest water body on tribal lands in California, Arizona, or Nevada. "EPA Delegates Clean Water Act Authority to Nevada Paiute Tribe," US EPA Region 9 Press Release (February 8, 2007).
[xvi] City of Albuquerque v. Browner, 97 F.3d 415, 421 (10th Cir. 1996) (Indian tribes recognized as states under the CWA may establish water quality standards that are more stringent than federal standards).
[xvii] "EPA Delegates Clean Water Act Authority to Southern California Tribe," US EPA Region 9 Press Release (October 31, 2006); "EPA Delegates Clean Water Act Authority to Nevada Paiute Tribe," US EPA Region 9 Press Release (February 8, 2007).
[xix] These pollutants, which are the six pollutants for which the EPA has established National Ambient Air Quality Standards ("NAAQS"), include carbon monoxide, nitrogen dioxide, sulfur dioxide, lead, particulate matter, and ozone.
[xx] Worchester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
[xxi] United States v. Mazurie, 419 U.S. 544, 557 (1975).
[xxii] United States v. Wheeler, 435 U.S. 313, 323 (1978); Nat'l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 851 (1985); Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 531, note 6 (1998); South Dakota v. Yankton Sioux Tribe, 552 U.S. 329, 343 (1998).
[xxiii] Wilkins, David E., Lomawaima, K. Tsianina, Uneven Ground: American Indian Sovereignty and Federal Law, University of Oklahoma Press: Norman, 2001.
[xxiv] Clean Water Act § 401(a)(1), 33 U.S.C. § 1341(a)(1).
[xxvi] City of Albuquerque v. Browner, 97 F.3d at 424. The express incorporation of CWA §§ 401 and 402 in 33 U.S.C. § 1377 gives EPA the authority to issue NPDES permits in compliance with downstream tribal water quality standards; it is therefore EPA, rather than the tribe, that is applying and enforcing tribal water quality standards off the reservation.
[xxvii] Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000).
[xxviii] The CAA and EPA's implementing regulations provide three ways a tribe may regulate air quality: (1) under the Prevention of Significant Deterioration ("PSD") provisions, a tribe may redesignate areas that are already meeting National Ambient Air Quality Standards ("NAAQS"), imposing stricter air quality requirements that are meant to constrain upwind emissions and emissions within the redesignated area; (2) tribes can petition EPA to regulate upwind sources that are contributing to their nonattainment of NAAQS or interfering with maintenance of air quality standards or with PSD measure; or engaging in cooperative planning efforts with states and tribes to address regional-scale pollution problems. Jana B. Milford, Tribal Authority Under the Clean Air Act: How is it Working? 44 NJR 213, 229 – 230 (Winter 2004).
[xxix] Id.; See, also, Montana Power Co. v. EPA, 608 F.2d 334 (9th Cir. 1979).