Water Resources | Regulatory Requirements
Direct Federal Implementation of Environmental Laws in Indian Country - EPA's Role as Regulator
Environmental program responsibility requires capability and significant resources, among other things. Tribal governments do not always find it practical to assume full responsibility for EPA programs. Based upon a variety of factors, often including program costs, assistance and maintenance costs, and availability of technical expertise, tribal governments may focus on certain high-priority activities, but may decide not to assume an entire regulatory program. When tribes decide not to undertake certain activities under EPA's programs or not to apply for entire programs, EPA will seek to directly implement the environmental programs, as appropriate. EPA may also directly implement certain environmental management programs where federal statutes preclude tribal eligibility.
Tribal Assumption of Federal Environmental Laws
In the EPA Indian Policy, EPA announced its support for Tribal Assumption of Federal Environmental Laws under federal statutes, stating, among other things, that "[t]he Agency will recognize tribal governments as the primary parties for setting standards, making environmental policy decisions, and managing programs for reservations, consistent with Agency standards and regulations."
Three environmental statutes - the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), and the Clean Air Act (CAA) - explicitly authorize EPA to "treat tribes in the same manner as states" (TAS) for purposes of implementing various environmental programs. In addition, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) explicitly include a provision that affords tribes substantially the same treatment as states with respect to certain provisions of the Act, while the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) also provides a role for tribes. Although the Toxic Substances Control Act (TSCA) and the Emergency Planning and Community Right-to-Know Act (EPCRA) do not explicitly provide for TAS, EPA has taken the position that it has the discretion to approve tribes to implement certain programs in the same manner as states in order to fill gaps in how the statutes are implemented in Indian country.
For tribes to assume many of EPA's regulatory programs, they generally must go through the TAS process and meet the following criteria:
- The tribe must be federally-recognized
- The tribe must have or be able to exercise substantial governmental powers
- The tribe must have or have been delegated jurisdiction over the area in question
- The tribe must be reasonably expected to have the capability to effectively implement a program
In general, once a tribe has been deemed eligible for one EPA program, it need only establish that it has jurisdiction and capability for each subsequent program. If a tribe does not have capability, it must have a plan for acquiring capability over time. A capability showing is required because each program may require different skills and activities to provide protection that meets the requirements of specific statutes and regulations.
Perhaps the most important of the tribe-specific eligibility criteria is whether the functions to be exercised by a tribe are within the applicant tribe's jurisdiction. EPA asks tribes that are applying for regulatory programs to demonstrate in their applications that they have adequate jurisdiction over the areas to be regulated. Under principles of federal Indian law, tribes generally have inherent sovereign authority to regulate both their members and land held in trust (although specific statutes may have affected this general principal for some tribes). Depending on the scope of the application, EPA may also need to evaluate whether a particular tribe has jurisdiction over nonmember activities on nonmember-owned fee lands within the boundaries of an Indian reservation. Jurisdiction over nonmember activities on fee lands may come from two potential sources: a tribe may have inherent authority over these activities; or Congress may, by statute, delegate federal authority to a tribe. Tribal applications for authorization to administer the program are sent to EPA's Regional Administrators.
EPA has made a number of "treatment in the same manner as a State" determinations for tribes, most of which involved findings that tribes are eligible for grants under the CWA. EPA has approved twenty-seven tribes to set water quality standards under section 303 of the CWA. One tribe has received primacy under the SDWA. Five tribes have received program approval under the CAA. Approximately 30 tribes operate pesticide certification or enforcement programs authorized by FIFRA under cooperative agreements with EPA.
Clean Water Act
The primary objective of the CWA is to restore and maintain the chemical, physical, and biological integrity of the nation's surface waters. Pollutants regulated under the CWA are classified as either "toxic" pollutants "conventional" pollutants, such as biochemical oxygen demand (BOD), total suspended solids (TSS), fecal coliform, oil and grease, and pH; or "nonconventional" pollutants, including any pollutant not identified as either conventional or priority. The CWA is implemented via several regulatory programs, some of which are described here.
National Pollutant Discharge Elimination System Program
The CWA regulates both direct and indirect discharges. The National Pollutant Discharge Elimination System (NPDES) program (CWA Section 402) controls direct discharges into navigable waters. Direct discharges come from "point sources" which are defined as any "discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fixture, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel, or other floating craft from which pollutants are or may be discharged." These include discharges of industrial and municipal wastewater, as well as stormwater conveyed through a municipal separate stormwater system (MS4). EPA's NPDES Web site provides technical and regulatory information about the NPDES permit program, which controls water pollution by regulating point sources (e.g., pipe, ditch) that discharge pollutants into waters of the United States.
NPDES permits, issued by either EPA or an authorized tribe (or an authorized state or U.S. territory) contain industry-specific, technology-based and water quality-based limits, and establish pollutant monitoring, record keeping and reporting requirements; to date, EPA has not authorized any tribes to administer the NPDES program. A facility that proposes to discharge into the nation's waters must obtain a permit prior to initiating a discharge. The permit will set the conditions and effluent limitations under which the facility may discharge.
A NPDES permit may include discharge limits based on tribal water quality standards that are established under the CWA, and which are designed to protect designated uses of surface waters, such as supporting aquatic life or recreation. These standards, unlike the permit technology-based standards, generally do not take into account technological feasibility or costs. Water quality standards may vary from site to site, depending on the use classification of the receiving water body. When establishing water quality standards and associated water quality criteria, tribes may elect to follow EPA guidelines, which propose aquatic life and human health criteria for many of the 126 priority pollutants.
Combined Sewer Systems Permit Provisions
NPDES permits for municipalities with combined sewer overflow (CSO) must conform to EPA's CSO Control Policy. The permitting provisions include minimum technology-based controls that can reduce the prevalence and impacts of CSOs and that are not expected to require significant engineering studies or major construction. Communities with combined sewer systems are also expected to develop long-term CSO control plans that will ultimately provide for full compliance with the CWA, including attainment of water quality standards. EPA's CSO Web site provides technical and regulatory information about CSOs.
EPA's Stormwater Program is part of the NPDES program and is designed to regulate the discharge of contaminated stormwater (and contaminated discharges from storm sewers that are only supposed to discharge stormwater) into navigable waters.
EPA implemented the stormwater program in two phases. Phase I of the stormwater program applies to medium (serving a population from 100,000 to 250,000) and large (serving a population greater than 250,000) municipal separate storm sewer systems (MS4), certain industrial facilities, and any construction activity disturbing at least 5 acres (large construction sites). Covered MS4, industrial facilities, or construction activity must apply for and obtain an NPDES stormwater permit. Phase I began in 1990.
Phase II of the stormwater program applies to small (serving populations under 100,000) MS4s and construction activity disturbing at least 1 acre and less than 5 acres (small construction sites). Covered MS4 and construction activity should obtain a stormwater NPDES permit for construction. This may be accomplished by submitting a Notice of Intent to EPA to be covered under a national general stormwater permit. Phase II began in 1999.
The term MS4 does not solely refer to municipally owned storm sewer systems, but rather is a term with a much broader application that can include departments of transportation, colleges and universities, sewer districts, hospitals, military bases, and prisons. An MS4 also is not always just a system of underground pipes - it can include roads with drainage systems, gutters, and ditches. The regulatory definition of an MS4 is provided in 40 CFR 122.26(b)(8). EPA's Stormwater Program site provides general stormwater information and the Stormwater Phase II Compliance Assistance Guide (PDF) (97 pp, 1.4MB, About PDF) also provides information.
The CWA also requires EPA to promulgate regulations that restrict discharge of wastewater indirectly through sewers to publicly-owned treatment works (POTWs). POTWs receive wastewater from homes, commercial buildings, and industrial facilities and transport it via a series of pipes, known as a collection system, to treatment facilities. Industrial users of POTWs must comply with CWA pretreatment standards before introducing pollutants into a POTW. These pretreatment standards must control pollutants that may pass through or interfere with POTW treatment processes or contaminate sewage sludge. EPA has developed national categorical Pretreatment Standards that apply numeric pollutant limits to industrial users in specific industrial categories. EPA has also developed general pretreatment requirements. The General Pretreatment Regulations require POTWs that meet certain criteria to develop pretreatment programs to control industrial discharges into their sewage collection systems. Additionally, the General Pretreatment Regulations include general prohibitions that forbid industrial users from causing pass through and interference, and specific prohibitions against the discharge of pollutants that cause problems at the POTW such as corrosion, fire or explosion, and danger to worker health and safety.
Different technology-based categorical pretreatment standards apply to existing and new industrial categories. In addition, POTWs may need to develop "local limits," to assist the POTW in achieving the effluent limitations in its NPDES permit or where necessary in order to prevent pass through or interference. Local limits may be more stringent than federal standards.
Sludge (Biosolid) Management
Section 405 of the CWA regulates the land application and land disposal of sludge - the solid, semisolid or liquid untreated residue generated during the treatment of domestic sewage in a treatment facility. 40 CFR 503 contains provisions for sludge quality, application rates, and environmental conditions under which land application is permitted. The regulations also specify sludge management methods and monitoring and record keeping requirements for both disposal and land application facilities. Sewage sludge can be disposed of in landfills, lagoons, incinerated, or applied to the land to serve as a soil enhancer or fertilizer. Land application of sewage sludge is often done on parks, golf courses, abandoned mines, and during construction site restoration. It can also be applied to crops, including crops for human consumption. EPA's Biosolid Web site provides sludge and biosolid information.
Spill Prevention, Control, and Countermeasure Plans
CWA section 311contains broad federal authority to prevent, respond and cleanup an oil spill or threat of an oil spill. This provision, as implemented through regulations at 40 CFR 112, requires facilities that could reasonably be expected to discharge oil in harmful quantities to navigable waters and adjoining shorelines to prepare and implement Spill Prevention, Control, and Countermeasure (SPCC) Plans. For additional information about SPCC Plans or online at EPA's SPCC page of the Oil Program Web site.
The Water Quality Standards Program and Tribal Program Approval
Section 518(e) of the CWA require EPA to issue regulations to specify how the Agency would treat tribes in a manner similar to states for certain CWA programs, including the water quality standards program. Section 518(e) also requires EPA to establish a mechanism for resolving any unreasonable consequence that results when a tribe and a state adopt different water quality standards for common bodies of water. 40 CFR 131 contains the requirements and procedures for EPA to promulgate water quality standards for tribes and for EPA to approve or disapprove tribal applications.
If a tribe chooses to apply for treatment as a state for the water quality standards program and receives EPA approval, all of the procedures and requirements that apply to states for the development, review, and adoption of water quality standards apply to a tribe with authorization to administer the program. Tribes have three years from the time they receive approval to administer the water quality standards program to submit their water quality standards to EPA for approval.
Water Quality Standards - Dispute Resolution Mechanism
Section 518(e) of the CWA required EPA to issue regulations that establish procedures for resolving disputes between states and tribes that arise as a result of differing water quality standards on common bodies of water. Since some Indian reservations fall within the boundaries of one or more states, so it is possible that there will be conflicting water quality standards for a common body of water because there are two or more responsible governing bodies. This situation also occasionally occurs between two states sharing a common body of water. 40 CFR Section 131 states that the EPA Regional Administrator is responsible for acting in accordance with this section of the Regulation.
Safe Drinking Water Act
The Safe Drinking Water Act (SDWA) mandates that EPA establish regulations to protect human health from contaminants in drinking water. The law authorizes EPA to develop national drinking water standards and to create a system to ensure compliance with these standards. The SDWA also directs EPA to protect underground sources of drinking water through the control of underground injection of fluids.
Drinking Water Programs
EPA has developed primary and secondary drinking water standards under its SDWA authority. EPA and authorized tribes enforce the primary drinking water regulations, which are either contaminant-specific concentration limits that apply to certain public drinking water supplies or treatment techniques that must be followed. Primary drinking water standards are based on maximum contaminant level goals (MCLGs), which are non-enforceable health-based goals. The standards consist of treatment techniques or maximum contaminant levels (MCLs), which are enforceable limits set as close to MCLGs as possible, considering cost and feasibility of attainment.
To assure these standards are maintained, SDWA regulations require public water systems to monitor for various contaminants, such as fecal coliform and metals. In addition, the SDWA regulations require specified disinfection and filtration activities, and public notification when certain contaminants exceed specified levels, and reporting of contaminant limit exceedences. Tribes may apply for eligibility to receive primary enforcement authority (known as primacy) to administer the requirements of Sections 1413 and 1451 of the SDWA. The Navajo Nation has primacy for the SDWA public water system (PWS) program.
Underground Injection Control
The SDWA Underground Injection Control (UIC) program (40 CFR Parts 144-148) is a permit program that protects underground sources of drinking water by regulating five classes of injection wells. The UIC permit program is primarily enforced by EPA in Indian country because no tribe is authorized to administer the program.
EPA's Clean Water Enforcement Program addresses, among other things, municipal and industrial wastewater discharges, polluted runoff from urban and rural areas, and habitat destruction and is designed to return violators to compliance and deter misconduct in others, eliminate or prevent environmental harm, and preserve a level playing field for responsible companies that abide by the laws.
EPA's Criminal Enforcement program uses stringent sanctions, including jail sentences, to promote deterrence and help ensure compliance in order to protect human health and the environment. Criminal enforcement is often used against the most serious environmental violations as well as those which involve egregious negligence or conduct involving intentional, willful or knowing disregard of the law.
For related information visit EPA’s National Indian Country Enforcement and Compliance Assurance Priority site and EPA’s Enforcement and Compliance Assurance Program in Indian country site.