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Protecting and improving water quality on tribal lands is an
important goal for many tribes. One critical tool available to
tribes is a tribal water quality standards (WQS) program. WQS
programs allow tribes to directly regulate projects on tribal land
that impact water quality and just as importantly, take proactive
steps to protect against water quality impacts from proposed
activities outside the tribe's jurisdiction, including dams,
mines, power plants, wastewater treatment plants and other
projects.
Adopting a WQS program generally involves two steps. First, a tribe
obtains authorization from the U.S. Environmental Protection Agency
(EPA) to administer the WQS program. To receive authorization, a
tribe must show that (a) it is federally recognized, (b) has an
appropriate governing body, (c) has authority to regulate the
quality of reservation waters, and (d) has the technical capability
to administer the WQS program, or can acquire such capability. The
second step is to develop a WQS program and receive approval from
EPA. Tribes may file an application for authorization and for
approval of a WQS program either together or separately, but EPA
must authorize a tribe prior to approving its WQS program.
The federal Clean Water Act (CWA) permits tribes with authorized
WQS programs to have heightened standing in addressing potential
water quality impacts for projects that require a federal license
or permit. Under Section 401 of the CWA, a tribe with an authorized
WQS program has the ability to stop any project on tribal land that
does not comply with its standards. It also allows a tribe to
regulate a project based upon the WQS standards.
Equally important, where tribal land is downstream from or
otherwise near a proposed off-reservation project, CWA Section
401(a)(2) allows tribes with authorized WQS programs to object to
EPA and to make recommendations for changes to federal licenses and
permits based on the tribe's water quality standards. This is
potentially a very powerful tool for tribes concerned about
proposed projects that have the potential to impact tribal waters
as well as tribal environmental values. WQS can be particularly
valuable in protecting tribal water, since tribes may develop water
quality standards that are more stringent than federal or state
standards. For example, tribes can develop WQS that do not allow
for degradation of pristine tribal waters.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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