Tribe controls own water

Oct 24, 2011

The U.S. Environmental Protection Agency (EPA) announced that Dry Creek Rancheria in Sonoma County, CA, has gained authority to administer its own water quality programs under the federal Clean Water Act (CWA).

Dry Creek Rancheria, 75 acres of what was once an 86,400-acre territory, is home to the Pomo Indians, and they include not just one tribe, but approximately 21 independent communities speaking seven different language dialects. The tribe was officially recognized as a sovereign nation in 1915.

They are the 47th tribe out of 563 federally recognized tribes nationwide with delegated authority over water quality protection programs.

Under CWA requirements, to administer a water quality standards program, the tribe must be federally recognized, have a governing body to carry out substantial duties and powers, and have the jurisdiction and capability to administer the program within its reservation.

Congress enacted the Federal Water Pollution Control Act in 1948. Designed to prevent and control water pollution, it became the standard for all states, but was difficult to implement. It was amended in 1972 and became what is now known as the CWA.

However, the 1972 act did not clarify the role of tribes. In 1983, President Ronald Reagan added a policy to include American Indians, and EPA became the first federal agency to adopt a formal Indian policy, recognizing tribal governments as the primary parties for setting standards, managing programs, and making environmental decisions. The policy did include a caveat that EPA would manage the programs on reservations until tribal governments had the ability to assume full responsibility.
In 1987, the CWA was amended again, authorizing EPA to treat each tribe as an individual state in relation to grants, water quality, nonpoint source management, National Pollutant Discharge Elimination System permits, and dredge and fill permits. The “Treatment as a State” would be considered on a case-by-case basis.
As with most policies, this one has had its share of controversy. According to a January 2010 report written by Marren Sanders, University of Arizona, the Oneida Tribe of Wisconsin was one of the first tribes given control of their water rights under CWA, which would later be challenged. During the discovery phase of the court case, evidence came to light that EPA officials falsified and backdated documents supporting the approval. Once exposed, the approval was rescinded and two EPA officials were indicted by a federal grand jury.
In Wisconsin v. EPA, the court rejected the State of Wisconsin’s challenge to EPA’s grant of “Treatment as a State” status to the Sokaogon Chippewa Community Indian Tribe. In doing so, according to a University of Colorado Water Law review paper, the court confirmed that Indian tribes with “Treatment as a State” status are co-equal sovereign regulatory bodies of the same class as individual states under CWA.
With or without their own CWA, controlling pollution and protecting water quality is vital for a tribe to survive, and the tribes must meet the federal minimum requirement under CWA.  In addition, to administer their own water quality program, a tribe must be federally recognized, have a governing body, and be reasonably capable of carrying out the water quality plan.
While Dry Creek Rancheria has control over its water quality program, it will continue to work with EPA on a government-to-government basis to develop and adopt water quality standards, which, once approved, will form the basis for water quality-based effluent limitations and other requirements for discharges to waters within the tribe’s jurisdiction. The tribe is also authorized to grant or deny certification for federally permitted or licensed activities that may affect waters within the borders of their lands. — Traci Eatherton, WLJ Editor