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Tangled authorities muddy tribes' protection under Clean Water Act

BOSTON, Maine - The growth of a massive algae bloom on the Penobscot River from the Katahdin Paper Company's phosphorous discharges coincided in August with a 1st Circuit Court of Appeals ruling that stripped Maine's Penobscot and Passamaquoddy tribes of authority to regulate water quality on rivers that pass through tribal lands. The court upheld the U.S. Environmental Protection Agency's decision to allow the state Department of Environmental Protection to regulate water at 19 off-reservation sites that discharge into tribal waters, left open the EPA's assertion that it has the authority to revisit any DEP-issued permits, warning the state agency that it needs to protect tribal rights.

''If Maine is wise in its exercise of its new authority, quite possibly these questions will not need to be resolved,'' the court said.

The intersecting events raised questions of both local and national significance about the federal government's trust responsibilities, the tangled regulatory authority of tribes, states and the EPA, and whether the Clean Water Act can protect tribal rights.

Tim Williamson, EPA's Senior Regional Counsel, talked with Indian Country Today about the issues.

Tim Williamson: At this point, it would not be EPA's view that we should be taking back the state authority to issue NPDES [National Pollution Discharge Elimination System] permits. We want to see what sort of compliance plan the state hammers out with the company before deciding whether the federal government is going to step in.

Indian Country Today: The paper company spokesman said the company didn't violate regulations because there are no discharge limits on its permit.

Williamson: It is true there's no phosphorous limit in the permit, but the water quality standards under both state and federal law are independently enforceable as part of any permit and as part of the Clean Water Act.

ICT: Under what conditions would the EPA take back its permitting authority from the state?

Williamson: It would be a case by case determination. In the discussion in our decision on the state's program, we said EPA does have the authority to review the adequacy of permits the state issues regarding compliance with the CWA, and we do have the authority to veto or reject such a permit. The 1st Circuit Court declined to review that claim because they said it was premature to prejudge this stuff.

ICT: What about EPA's trust responsibility?

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Williamson: The issue that EPA opined on in our decision [was], does the federal government have a general trust relationship and trust responsibility to the tribe both on their trust lands and their reservations and the assets held in their reservations? We do not accept the argument some have made that just because the reservations are not formally held in trust there's no clear trust responsibility. We don't think that's the law and I think it's important to note that the court went out of its way not to rule on the question of whether EPA has a general trust responsibility to the tribes.

Now, what the content of that trust is, how you decide what the specific responsibilities are that the federal government has, that's a huge discussion well beyond the scope of this conversation.

The court did find that state law applies on the tribes' reservations and trust territories for the purposes of implementing water quality permitting programs. Those are substantial incursions on the traditional notions of Indian sovereignty as they operate outside Maine and it's easy to understand the tribes' profound concern and disappointment in those findings.

ICT: How do the tribes' sustenance fishing rights come into play if they have no control over water quality regulation upstream from their lands? It just seems so contradictory to say tribes have these water rights in treaties and settlement acts and aboriginal claims, but no way to exercise them.

Williamson: It is the essential next big question that tribes and the state are going to have to grapple with following this court decision.

I think generally your question boils down to, what does the CWA require the state - or the EPA - to do to address a statutorily confirmed tribal sustenance fishing right, and that's a very important policy question that we're going to have to sort through on a developed administrative record.

Both the state and EPA are required to comply with the requirements of the CWA. How the CWA applies to the particular question you're posing is an extremely difficult policy and technical issue with national implications. It's very important to the tribes here, but a similar question is important to tribes nationwide.

ICT: Is it correct to say the EPA has the authority to oversee the DEP not only to satisfy the CWA, but also to protect the tribe's fishing rights?

Williamson: We have the authority to ensure that the CWA is complied with. Now, our assessment of whether the state or regulated entities are complying with the CWA is informed by our trust responsibility to the tribes and the attendant need to understand the impact on tribal resources, including their sustenance fishing rights, but the bottom line is the basis of our authority in Maine is the requirement that the state and regulated entities comply with the CWA.

ICT: What if you have a hypothetical situation where a company was actually complying with the CWA, but negatively affecting tribal fishing rights downstream?

<bWilliamson: Your hypothetical situation contains the key question that I think at this point is unanswerable, and that is exactly how far does the CWA go to protect reserved tribal fishing rights? That's a big policy question at the federal level that the agency is still sorting through, and how that plays out will depend a lot on the particular issue of what the facts of the science are surrounding a particular fishing right in a particular set of discharges on the receiving water.